Quality over quantity is best
THE view that a legislature is only “productive” when it passes many laws in a short period must be challenged. The role of a legislature is more substantive than simply being a law-producing factory.
The vast quantity of laws, notwithstanding their shockingly low quality, that emanates from the SA Parliament has ensured that no ordinary person can hope to remain up to date with the contents of the statute book and even less so with the multiplicity of provisions that govern their daily lives.
Respect for the rule of law would bring this to an end.
Moira Levy, of the parliamentary monitoring website Notes from the House, lauds the South African Parliament for moving speedily in the last weeks of 2018, passing nine bills compared with 14 in the rest of the year.
In the United States in 2013, Josh Huder complained in an article for the Government Affairs Institute that congress had been “the least productive since the Civil War ”. The last two congresses, he argued, appeared “historically inept”.
In August 2017, Business Insider reported on a letter circulated by investment consultant Michael Arone in which he said congress had done little and that only 45 laws were enacted before its break that year. This “unproductive” slow pace of legislating boded ill for “congress’ historical standing”.
The obsession with having legislatures mass produce new laws for their own sake should concern anyone who values living in a free society where the government is a servant, rather than a master, of the people.
Both South Africa and the United States suffer from the condition of overlegislation. There are too many laws per se, but also too many of an inferior quality, on the Statute Book.
In his magnum opus on legal certainty and the rule of law, Freedom and the Law, Bruno Leoni recounts the story of lawmaking in ancient Athens.
The problem was that while law-making had become the domain of legislative assemblies rather than dictators, nobody knew whether the laws passed one day would still be the same the next, or whether they would have been repealed or modified.
Tysamenes thus introduced a constitutional reformation that made sponsors of bills directly responsible for the consequences and efficiency of those laws.
If it could be proven that a bill had some grave defect or contradicted existing laws, the sponsor of the bill could be convicted, and if found guilty, was usually saddled with a hefty fine. The death penalty was also a possibility.
Leoni was problematising the discourse around “legal certainty”, which usually meant that the provisions of a given law are written down, and thus are “certain”. Leoni argued that the rule of law is also concerned with another aspect of legal certainty, that is that the laws do not change constantly and new laws are not introduced constantly.
When legal certainty is undermined in this way, people can never truly “know” the law as it applies to them and modify their behaviour accordingly.
Legislatures do not exist simply to make law. They must also represent the interests of their constituents in government and provide oversight for the equally growing regulatory administrative state.
In its law-making duty, however, Parliament must ensure the legislation it enacts is clear, understandable to the layperson and succinct (as opposed to the hundreds of pages legislation consists of today).
The law is supposed to be accessible, which is about more than being able to get a PDF of a new law and read it. Accessibility means it must be reasonably understandable and reasonably knowable to those to whom the law applies.
In 2019, we should seek to reduce, not increase, the number of laws that dominate every aspect of our lives.
Our focus should be on the introduction of good law: Fewer statutes that are well-written, short, and based on firm jurisprudential principles.
This is the only way to restore to the law the majesty and respect that it deserves, and it is the only way for South Africa to live up to its commitment in section 1(c) to bring about the supremacy of the rule of law.
• Martin van Staden is a legal researcher at the Free Market Foundation and is pursuing a master of laws degree from the University of Pretoria.