Instead of expunging the statute book of all laws that offended against individual liberty when it came to power, the ANC added 1,200 new ones, among them laws that have cost countless jobs, hobbled the mining industry and curtailed free speech. Yes, it threw out fistfuls of pungent apartheid laws, but in their place imposed an iron grip on its view of the world, which everybody now has to follow. In this sage countenance of our political and legislative environment, former Supreme Court Judge Rex van Schalkwyk, looks to history’s seers for universal truths that are as relevant today as ever – and exposes seemingly civilised latter-day annual political rituals as corrupt, self-serving events that further enrich the wealthy while robbing the poor. It’s a sobering piece by someone whose job it was to listen closely to the heartbeat of the legislative beast. His treatise speaks to necessary laws that advance a legitimate common interest instead of undermining, distorting, and sucking the life out of human endeavour – as in North Korea and Soviet Russia. It’s an invaluable read for anyone wanting to widen their understanding of our seemingly intractable political dilemma. – Chris Bateman
By Rex van Schalkwyk*
Publius Cornelius Tacitus, who lived during the first century AD, gave this warning: “The more corrupt the state, the more numerous the laws”. It was an equation – of an unusual kind – based upon no mathematical or scientific model, it was based on an observation of social behaviour; what later academic studies have described as behavioural science, a science known for its inexactitude. Tacitus’ wisdom has, however, withstood the test of the millennia.
Like Lord Acton’s aphorism about the insidiously corrosive effects upon the human psyche of an intoxication with power, Tacitus’ observation is based upon certain immutable and timeless human characteristics. Both observations are universally verifiable, irrespective of the era or the place.
In the United States there is a bi-annual migration of sorts; a migration of lobbyists, numbering several thousand from around the country, who descend upon the nation’s capital, each obeying an emphatic command to do the bidding of the corporate imperative.
Because money is the advantage that is sought by all, and because exemptions from the federal tax regime represents a singular advantage that can be measured by the measure that counts, these lobbyists are singularly responsible for the most intricate, the most incomprehensible tax code ever devised.
The Federal Tax Code comprises no fewer than 75,000 pages when last counted, in 2014. The uncompleted task, which relied as much upon calculation as on actual counting, was then abandoned and has not since been resurrected. Many of these pages deal with the special interests pleaded for by the lobbyists, which are stipulated in innumerable exemptions; provided only that there had been a bribe sufficiently attractive to seduce the requisite number of lawmakers.
How can this possibly be better than a vastly simplified flat rate of taxation with no exemptions and no special interests? It is a system that has been proven, in practice, to raise even more revenue than the present graduated method, which does not properly serve either the purpose of revenue collection, or of equity; the latter being the principal reason that is constantly advanced for the stubborn endurance of a failed system.
In the United States the billionaires: the multi-national corporations, the moguls of the financial system and the speculators of Wall Street, all of whom have access to their Capitol Hill influence-peddlers, pay less tax, as a percentage of income, than the average working man – some pay no tax at all. Where is the equity in that? The simplified system will moreover largely eliminate the employment of the lobbyists, and with it, the opportunity for large scale corruption.
What Tacitus foresaw, and what the passage of time has proven, is that corrupt people armed with political power will willingly trade privilege in exchange for reward. What Lord Acton understood when he proclaimed, centuries later, that power tends to corrupt, and that absolute power corrupts absolutely, is that the corrupt are drawn towards power. From this collective wisdom may be derived a most salutary lesson: those armed with the power to make laws should be restrained to make only those that pass the test of necessity. These would be only those laws that advance a legitimate common interest and do not needlessly impede individual liberty.
It has been said that there is good law. This idea profoundly misconceives the nature of law: it is a restraint upon individual liberty. Some restraints are necessary; the liberal philosophers, John Locke and John Stuart Mill understood this necessity, but much of it is unnecessary and even pernicious.
There is no good law; there is only necessary law, which is the law that serves a social utility. And then there is the law that undermines, distorts, enervates and destroys the stuff of human endeavour and with it, as in the extreme cases of Soviet Russia and North Korea, the human spirit. The essential feature of this law, is corruption.
Statutory law does not emerge from wisdom, compassion or goodwill; it is the product of a temporary authority. Thomas Hobbs, another liberal philosopher, expressed the matter in this way: “It is not wisdom but authority that makes a law.”
If, when the ANC had come to power, they had set about to expunge the statute book of all the laws that offended against individual liberty; if they had set an objective of increasing the freedom of the individual instead of increasing the burden of restitution; if they had made only necessary laws, South Africa would likely have become, within 22 years, an educated, prosperous and harmonious society. Instead, while largely ignoring the pernicious legislation of the previous dispensation, they set about to enact a raft of new national legislation (over 1,200 at the last counting) all of which was driven by the singular objective of control.
The result of all these interventions is that there are labour laws that destroy jobs, mining laws that have practically destroyed the once prosperous mining industry, legislation designed to control the medical profession and medical services that systematically undermines these essential services, Twin Peaks legislation that will surely create another massive bureaucracy while destroying much of the financial services industry. And now, the Hate Speech Bill, that will destroy the right to the freedom of expression. In each of these instances, and there are very many more, the opportunity for corruption and the pleading of a special interest is increased and individual liberty, surrendered.
When President Jacob Zuma invited the well-heeled to attend the ANC jamboree with the observation that the return upon the extravagant cost of the event would be handsomely rewarded by the business opportunities on offer, he was openly soliciting those seeking the benefit of a corrupt patronage to participate in a bounteous feast. There were, no doubt, very many takers. The astonishing thing is that there was so little outrage expressed at this brazenly corrupt proposal.
Against such formidable abuse of authority there is only the sanctuary of the rule of law. As with the Nkandla scandal, Zuma and his innumerable puppets must be taught that they are all accountable to the law. If the National Prosecuting Authority will not fulfil its constitutionally mandated task and do so on behalf of the public, then the public, through representative organisations and NGOs, must do so in its stead.
The ANC government will, in its relentless pursuit of self-interest, surely ignore the wisdom of Tacitus, but that wisdom will certainly outlast the ignorant prediction, made by Jacob Zuma, of the “1,000 year reign”.
- Rex van Schalkwyk is a former judge of the Supreme Court of South Africa and is the chairman of the FMF’s Rule of Law Board of Advisers. He is the author of three books and numerous published articles. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.