Are There Too Many Laws?

The Roman philosopher, Cicero.
In his book, De Legibus, he suggests laws should be dawn from ‘the profoundest philosophy’.

Posted by Keith Tidman

Laws tend to accrete, one upon another. Yet, doesn’t this buildup of laws paradoxically undermine the ‘rule of law’? Wasn’t Montesquieu right to say that ‘useless laws weaken the necessary laws’, and by extension today enfeeble the rule of law?

 

The rule of law holds that every person and institution is equally accountable to the law. It is society’s safeguard against disorder. This presupposes that laws, in promoting the individual good, also promote the common good. The elixir to cure the ailments of society is often seen as dwelling in zealous lawmaking and rulemaking, which ironically may create even worse fissures within the rule of law itself and within the resulting social order. However mistaken such belief in the tonic may be, this regularly seems to be the guiding ideal and aspiration.

 

Yet, aspirations aside, the reality is that the proliferation of laws and regulations leads to redundancy, confusion, contradiction, and irrelevance among the laws that accrue over time. These factors fog up the lens through which people view laws as either just or unjust. In turn, citizens typically remain unaware of their actual liability to these amassed laws, and as a practical matter enjoy little understanding of how laws might be enforced.

Compounding the byzantine body of laws and regulations is the politicisation of their application. Governments of different political ideological leanings may well shift, especially as regimes shift, affecting the interpretation of laws. Laws being, as Thomas Hobbes wrote in Leviathan, ‘not counsel, but command’. Governments might make arbitrary decisions as to how to enforce the laws and regulations, and against whom. Political partisanship and the hazard of overcriminalisation can be the not-uncommon consequence.

When Winston Churchill warned, ‘If you have ten thousand regulations, you destroy all respect for the law’, to some people the cautionary note may have seemed an exaggeration, offered for effect. Now, many countries creak under an evermore bloated number of complex, cumbersome laws and regulations, with rule-of-law significances.

 

A core supposition of law is that citizens freely choose from among alternative behaviours in the daily conduct of their lives. Whether people really do have such uninhibited decision-making and choice, laws make sense, from the practical standpoint of society holding individuals accountable, only if the operative supposition of government and the community is that people deliberate and act through self-direction.

Laws and regulations ought to mirror society’s shared values, norms, conventions, practices, and customs, in order for justice to emerge. However, despite the influence of social values on laws, ‘legal’ and ‘illegal’ are not necessarily equivalent to ‘moral’ and ‘immoral’; principles of legality and morality may be only obliquely correlated. 

Meanwhile, it’s precisely because of the influence of social values that laws ought to remain malleable going into the future, as core needs of the community become reimagined and reframed with time. The inevitability of novel circumstances in the future requires pliability in human thinking, and thus in law.

 

If laws and regulations are allowed to calcify, they shed relevance in longer-term service of the community. They no longer foster the welfare of the people, which along with social order is foundational to laws’ existence. ‘The welfare of the people is the ultimate law’, Cicero presciently observed. Outdated laws and regulations ought to be purged, barring new laws from heaping upon the crustaceous remnants of old laws. Preserving the best about rule-of-law principles requires housecleaning.

 

Everyday citizens often perceive the law as an impenetrably dense mass, understood and plied by a priesthood of specialists who accommodate select interests. Laws’ unfortunate opaqueness propagates ‘ignorance of the law’, despite this go-to plea not being a legally valid excuse.

 

The risk is that society tilts increasingly toward unequal justice, much to the disadvantage of the poor, racial and ethnic minorities, and other alienated, underrepresented subgroups less equipped to self-endorse, or to accrue and deploy power and influence to their advantage. Vulnerability and punishment and discretion are frequently proportional to financial means, in plutocratic fashion. And the rule of law, meanwhile, loses its glint. 

 

And so, in advising that ‘A state is better governed with few laws, and those laws strictly observed’, in light of his time in history René Descartes seems commonsensical. Yet, ever since, many countries have jettisoned this simple prescription.

The profusion of laws compacting outdated and useless laws cannot continue indefinitely, without risking an irreparable stress point for jurisprudence’s workability and integrity. A moratorium on disgorging new laws, however, is insufficient alone. It is vital to clear the overgrown brush that threatens to choke the consistency, intelligibility, reasonableness, and applicability of what we want to restore by way of the rule of law and sensible jurisprudence. 

 

That’s an achievable undertaking. The prospect of our returning to first principles regarding the rule of law as a credible and viable doctrine, beyond a muffled slogan, makes the enterprise of clearing the thicket of laws worthwhile if we want a just society.

 

An Information Society

A Proposal For a New 'Checks and Balances'

Posted by Thomas Scarborough

“Power checks power,” wrote Charles de Montesquieu.  Yet power, to check power, rests on the disclosure of information.

The political philosopher Montesquieu, in the early 18th century, developed the political theory of the separation of powers, and with it, of checks and balances.  Through such a separation of powers, a government would be divided into three separate branches, each of which would serve as a check and a balance to the other two. Subsequently, Montesquieu's ideas have had a major influence on political philosophy – so that, today, democratic governments will typically (though not always) separate their legislative, executive, and judicial branches to guarantee continued stability and good governance.  It may seem a primitive notion today – namely, that power checks power – yet it really is the only way that we have.

However, given such a separation of powers, how should a nation know that this arrangement is working? How should one assess it? How should one confirm it? Separate powers can unite. Individual powers can gain the ascendancy. The answer is plainly: each branch of government needs to know what the others are doing – not only in terms of the various decisions which they take, but in terms of keeping open account of the way in which these decisions are carried out. And this needs to be public, or one loses not only public accountability and confidence, but the rich resources which are public thinking.



To put it another way, it is as simple as the disclosure of information. In fact, without the disclosure of information, there really can be no separation of powers. Therefore, the requirement for information is prior to the separation of powers. For this very reason, the various branches of government publish their information through government printing works – and more recently, through web portals.

But now, notice something about this information, which is of crucial importance to a nation. One doesn't need to go banging down any doors to obtain it. One doesn't have to apply for it. One doesn't need to pay for it. The basic information of government is ours. Not only do we have the right to such information – we have the information.

If only all of society would work in this way, from top to bottom: public officials, civil servants, professions councils, board members, business people – in fact, throughout. We know, from recent empirical advances, that transparency greatly moderates the exploitative power of individuals – and in so doing, greatly reduces the distress of a nation. Yet today, by way of specific example which is by no means unique, access to a single page of information in my home town Cape Town, through the provisions of a liberal Access to Information Act, may cost R30 000 in counsel fees alone – if anybody should be feeling clingy. This is well above the average monthly income, and an impractical prospect for most.

Yet information is critical to society. In the words of the philosopher Frederick Adams, it enables us to get “a fix on the way the world is objectively configured”. We need information before we can manage and grow a nation in an informed, considered, and impartial way.

In fact it may be the difference between the success and failure of a state. Wherever information is concealed, politicians accumulate personal fortunes, crimes are swept under the carpet, buildings rise without permissions, the poor are exploited, foodstuffs are unsafe – and a thousand things besides. In my own country South Africa, a bubbly young reporter pushed her way into a country estate, where she discovered blueprints on a wall. It was Nkandla – the beginning of a major information scandal, and unprecedented turmoil in the national parliament.

It is therefore critically important that there should be a way to shed light – through the disclosure of information – on rules, plans, processes, and actions, throughout society. Which is, one needs to know the why, how, what, and how-much in every sphere.

How far should this go? It needs to go far. Yet the application of the principle would be for each society to negotiate in its own unique situation. The bottom line is the need for information – not merely the right to it. And for the first time in human history, in our information society, this has become a real possibility.

Parallel to a three-fold separation of powers, therefore, it would seem crucial to propose another kind of separation: the separation of information. Duplication of information is not enough. Alter one copy, or destroy it, and the value of the other may be lost. In triplicate, information is secure. Three separate information databases would seem essential to secure the disclosure of vital information.

This should not be confused with a surveillance state, where the few have special access to information, and the power to exploit it. By and large, the concealment of information holds greater dangers than genuinely opening it up.

In early societies, houses and huts were often arranged in circles. So, too, were wigwams pitched in an oval, and wagons drawn up in a laager. Everyone was able to see into the heart of everyone else's world.  Yet through the course of history, this changed – and in many ways it has been to our detriment. While it is impossible, now, to return to such a society, it is possible to recreate one of its central features: namely, transparency. Nations, in order to thrive and survive, must have a high order of transparency.

An Information Society

A Proposal For a New 'Checks and Balances'

Posted by Thomas Scarborough

“Power checks power,” wrote Charles de Montesquieu.  Yet power, to check power, rests on the disclosure of information.

The political philosopher Montesquieu, in the early 18th century, developed the political theory of the separation of powers, and with it, of checks and balances.  Through such a separation of powers, a government would be divided into three separate branches, each of which would serve as a check and a balance to the other two. Subsequently, Montesquieu's ideas have had a major influence on political philosophy – so that, today, democratic governments will typically (though not always) separate their legislative, executive, and judicial branches to guarantee continued stability and good governance.  It may seem a primitive notion today – namely, that power checks power – yet it really is the only way that we have.

However, given such a separation of powers, how should a nation know that this arrangement is working? How should one assess it? How should one confirm it? Separate powers can unite. Individual powers can gain the ascendancy. The answer is plainly: each branch of government needs to know what the others are doing – not only in terms of the various decisions which they take, but in terms of keeping open account of the way in which these decisions are carried out. And this needs to be public, or one loses not only public accountability and confidence, but the rich resources which are public thinking.

To put it another way, it is as simple as the disclosure of information. In fact, without the disclosure of information, there really can be no separation of powers. Therefore, the requirement for information is prior to the separation of powers. For this very reason, the various branches of government publish their information through government printing works – and more recently, through web portals.

But now, notice something about this information, which is of crucial importance to a nation. One doesn't need to go banging down any doors to obtain it. One doesn't have to apply for it. One doesn't need to pay for it. The basic information of government is ours. Not only do we have the right to such information – we have the information.

If only all of society would work in this way, from top to bottom: public officials, civil servants, professions councils, board members, business people – in fact, throughout. We know, from recent empirical advances, that transparency greatly moderates the exploitative power of individuals – and in so doing, greatly reduces the distress of a nation. Yet today, by way of specific example which is by no means unique, access to a single page of information in my home town Cape Town, through the provisions of a liberal Access to Information Act, may cost R30 000 in counsel fees alone – if anybody should be feeling clingy. This is well above the average monthly income, and an impractical prospect for most.

Yet information is critical to society. In the words of the philosopher Frederick Adams, it enables us to get “a fix on the way the world is objectively configured”. We need information before we can manage and grow a nation in an informed, considered, and impartial way.

In fact it may be the difference between the success and failure of a state. Wherever information is concealed, politicians accumulate personal fortunes, crimes are swept under the carpet, buildings rise without permissions, the poor are exploited, foodstuffs are unsafe – and a thousand things besides. In my own country South Africa, a bubbly young reporter pushed her way into a country estate, where she discovered blueprints on a wall. It was Nkandla – the beginning of a major information scandal, and unprecedented turmoil in the national parliament.

It is therefore critically important that there should be a way to shed light – through the disclosure of information – on rules, plans, processes, and actions, throughout society. Which is, one needs to know the why, how, what, and how-much in every sphere.

How far should this go? It needs to go far. Yet the application of the principle would be for each society to negotiate in its own unique situation. The bottom line is the need for information – not merely the right to it. And for the first time in human history, in our information society, this has become a real possibility.

Parallel to a three-fold separation of powers, therefore, it would seem crucial to propose another kind of separation: the separation of information. Duplication of information is not enough. Alter one copy, or destroy it, and the value of the other may be lost. In triplicate, information is secure. Three separate information databases would seem essential to secure the disclosure of vital information.

This should not be confused with a surveillance state, where the few have special access to information, and the power to exploit it. By and large, the concealment of information holds greater dangers than genuinely opening it up.

In early societies, houses and huts were often arranged in circles. So, too, were wigwams pitched in an oval, and wagons drawn up in a laager. Everyone was able to see into the heart of everyone else's world.  Yet through the course of history, this changed – and in many ways it has been to our detriment. While it is impossible, now, to return to such a society, it is possible to recreate one of its central features: namely, transparency. Nations, in order to thrive and survive, must have a high order of transparency.