Its strange how it is only when one looks back that we realise a journey we have taken has taken us into rarified atmospheres which very few others have experienced and can relate to.
Such a journey I have taken, in law, has been into the empirical analysis of legislative texts in order to identify the set of logical and rational principles underpinning the rule of law, and their measurements within a politico-legal jurisdiction.
However, early on in this journey I realised that I had begun to utilise concepts and a language that, although consisting of commonly used words in the field, were given a deeper meaning and complexity of relationship one to the other that derived from and was inherent in my subject matter, and that the import of what I’d come up with was difficult for others to grasp.
The result was, that the more I progressed along this journey into the rule of law as it relates to legislation, the more people I spoke to about my research looked exasperated, told me to stop banging on about this, or changed the subject.
Say, I told you that the new Tax Laws Amendment Act 22 of 2012 (aside from other things) commences legislation which is already commenced, un-lapses legislation that does not exist, and amends legislation already identically amended? You would, I’m pretty sure, understand the absurdities that I was banging on about. If you were legally trained, you may even try to remember that the Act may well have problems, in case a client walks through your door to whom it might matter.
However, what if I told you that the Act also (amongst other things) provides us with two new versions of a particular section of an Act that it amends; that it provides us with different commencement dates for those different versions and parts of those versions; that it provides us with different factual tests of the circumstances in which and to whom those different versions must differentially be apply; and that its engrossing instructions result in the first amended version created being superceded immediately by the second amended version?
All simple words and concepts but, what of their import? To you, this is probably an exasperating mull of words in a blog about issues with some Act or the other. To me, it is a breathtakingly new jewel of an error in making legislation, that goes a fundamental step further in undermining the rule of law and the separation of powers, that has sent me scurrying through jurisprudence and case law so that I can explore whether my analysis is correct, how a court would likely treat it, what commentary to create on this issue and how to get the information to others for whom it has practical import.
The last is the focus of this blog: How to cross the divide and put what I’ve found on the table without loosing the audience? That’s what’s puzzling me right now. Any suggestions?