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 emanate from the South African Parliament have 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 throughout the remainder 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 [1865]”. 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 their break that year.
This “unproductive” slow pace of legislating boded ill for “congress’ historical standing”.
The obsession with having legislatures mass produce new law for its 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 over-legislation: 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 law-making in ancient Athens.
The problem was that while law-making had become the domain of popular legislative assemblies rather than arbitrary dictators, nobody knew whether the laws passed one day would still be the same the next, or whether they would have been repealed or somehow modified.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 other 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”, by which was usually meant that the provisions of a given law are written down, and thus are “certain”.
Leoni, however, argued that the rule of law is also concerned with another aspect of legal certainty, that is, that the laws themselves do not constantly change and new laws are not constantly introduced.
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.
They need to be on a constant lookout for new laws and changes in the law, which causes uncertainty and undermines the rule of law.
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 simply being able to get a PDF of a new law and to read it.
Accessibility means it must be reasonably understandable and reasonably knowable to those to whom the law applies.
Imagine being a fresh BCom graduate looking to become a financial services provider. Parliament is currently considering two new laws in the sector: The Conduct of Financial Institutions Bill and the Financial Sector Laws Amendment Bill.
This is in addition to the 2017 Financial Sector Regulation Act.
Besides these Acts, there are also thousands of pages of regulations and policies across the breadth of government that in some way touch upon financial services.
Consider too the new Prevention and Combating of Hate Crimes and Hate Speech Bill and how accessible it is to the layman.
The South African Constitution, written for a new and hopeful democracy, defines hate speech as “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. Simple.
The Hate Speech Bill, on the other hand, conceives of hate speech as the intentional communication, publication, propagation, or advocacy of anything to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm or promote or propagate hatred based on one or more of fifteen listed grounds. Not so simple.
The difference in accessibility is clear. The Hate Speech Bill beautifully embodies the problem of over-legislation that has taken hold of South Africa.
The constitutional definition of hate speech is clear as well as fair and reasonable.
The bill’s definition is long-winded, stated in unashamed legalese, and goes well beyond the constitutionally-allowed limitation of expression.
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.
This article was first published in City Press on 18 January 2019