The law, properly understood, has a very specific role to play in society. It is not a catch-all institution that can be applied to every single problem that arises in every context. If we try to apply it to everything - rendering it 'quasi-law' - the nature of our society will change: we will go from a free society of individuals and communities to a permission society built around the primacy of the State.
The nature of law
In any society, the individual is the only physical actor. Institutions and groups are abstract notions, but very valuable and exceedingly important abstract notions nonetheless. The analysis of the proper role of the law in society, however, must start with the individual.
We are all born with an inherent ability to determine for ourselves. As individuals, we are the only ones who occupy our own minds, where the locus of responsibility for our decisions and actions lie. Nobody can enter the mind or consciousness of another, implying that individuals are self-rulers, who possess something that can be called "self-ownership". By exercising our reason and deferring to our inherent concern for our own interest, we form institutions – such as the law – and groups, primarily communities, which develop traditions and cultures.
The uBuntu notion that "I am because we are" is perfectly compatible with self-ownership, for an individual developing their personality within the confines of their community does not change the physical, biological reality of consciousness.
The law is an institution that exists in all communities around the world. It determines the rules for peaceful and voluntary coexistence. Prior to the law, life was a constant battle to survive, as we would kill whoever undermined our interests. In the process of forming this institution known as "the law", humanity also created the institution of government. In what became known as the "social contract", we agreed that our absolute freedom to violently pursue our own interests would come to an end. Violence was institutionalised in the hands of the government, which, in turn, agreed to use this violence only to protect our residual freedom.
Out of this arrangement came the law: we may no longer use aggressive (as opposed to defensive) violence to pursue our own interests, and the government may use violence to ensure this state of affairs is respected. This is the essence of what the law is supposed to be.
While I was still completing my bachelor's degree, my academic lecturers would assume almost without ado that every conceivable problem must be addressed through law; as if having the law for its own sake is a worthy goal.
The permission society
But things have changed. Opportunists and figures who seek only to stand at the very top of the societal hierarchy have, over the centuries, tried to pervert the law into a tool for violent plunder, thereby reneging on the social contract.
While I was still completing my bachelor's degree, my academic lecturers would assume almost without ado that every conceivable problem must be addressed through law; as if having the law for its own sake is a worthy goal. This mistake among our intellectuals has downstream consequences.
The Department of Health recently problematised the fact that there is no regulatory framework for electronic delivery systems (otherwise known as vaping or e-cigarette devices). Mind you, the British government has found that these devices are 95 percent less harmful than smoking ordinary cigarettes, seemingly implying that vaping is healthier than eating a 500g steak every day.
Yet the health department wants us to have a law to regulate vaping, but no law to regulate the eating of steaks? (I am fully aware that it is likely that in the not-too-distant future, the busybodies in our government will attempt to regulate how and when we eat meat.)
The new draft Tobacco Bill thus brings vaping within the regulatory crosshairs of government, with the impact assessment of the bill even admitting that the intervention "will significantly reduce the growth" of the vaping market which "will have detrimental consequences for the manufacturers, importers, wholesalers and retailers of these products" – in other words, job losses, slower economic growth, and less personal freedom.
The assessment also admits that government does not really know whether vaping is harmful or not, but that there is a "legislative vacuum" that needs to be filled regardless. Legislating for legislating's sake.
The South African experience should, however, have shown us that the sacrifice of liberty for security does not pay – we lost our liberty but never received any security.
We have a choice between being a free society or being a permission society.
Free societies are societies where people interact with each other on voluntary grounds, produce their own outcomes, and pursue their own preferences and destinies. This means that people may make stupid decisions and that, oftentimes, circumstances will not be agreeable to many. Freedom – and dignity – means the ability to fail, to be stupid, and to be nasty and mean. But freedom also means our dignity is not subject to the whim of some politician or bureaucrat appointed to decide what we may and may not do as it was during Apartheid when officials decided where we could live and who we could marry.
A permission society is one where we externalise all personal responsibility into the hands of the State. We sacrifice liberty for the façade of security – not real security. We are, officially, not allowed to fail, because there will theoretically be some government programme to catch us. If you are mean, you get prosecuted under some form of decency law, and if you are stupid with your money, the government will still take care of you.
These apparent luxuries come at a cost: we suspend our self-ownership, our dignity, and our freedom, in the hope that our rulers will always be benevolent and morally impeccable. We may be lucky and receive some short-term benefits from the permission society, but it will never be sustainable.
Eventually, what we leave to our children will also become subject to a law, to the point perhaps where, after our demise, we will not be able to leave anything to our children. The State will take all wealth instead. The South African experience should, however, have shown us that the sacrifice of liberty for security does not pay – we lost our liberty but never received any security.
The law is a majestic institution that deserves respect and admiration. However, as long as our law is perverted into quasi-law and our freedom depends upon the political class' transient tolerance, it will not and should not receive either respect or admiration.
Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.