People respect only reasonable laws

13. 12. 2020

Author: Robert Neruda

What should an ideal legal order look like? It should be a set of legal rules and principles that is logical, comprehensible and proportionate.Law needs to respond to the real problems of society and not create new ones. Only such law is accepted by society, only such law works. And does the reality reflect this?

People will comply with laws spontaneously if they understand and identify with them. What I do not know and what I do not understand, I cannot consciously observe.

Contemporary Czech law has too many rules that do not match up and in which it is difficult to orientate. The problem is excessive regulation and little effort to explain why a specific Act is necessary. There are simply too many rules, and no one keeps track of what is applicable.

The reason for this situation is not only the need to regulate life situations and actions that have not existed so far – such as the operation of autonomous vehicles, but also preferring case law (efforts to regulate each specific case) to general legislation. Fearing that the general rule should be left to the discretion of the courts, the legislator tries to think about and “regulate” all the situations that may happen.

Of course, something is always forgotten, some situations are insufficiently or incorrectly described, which in turn leads to the need for further amendments. One amendment is followed by another, a new Act is often amended before it enters into force. It is almost impossible to know which wording is valid.  This closes the vicious circle of confusing Czech legislation.

There is a lot of regulation, without explaining why it is needed, what it will be used for and whether there is a less burdensome (non-legislative) way to achieve the goal. The need for new legislation should be explained not only by lawmakers, but also by the authorities in charge of applying legal rules. The State and its bodies should try to translate complex legislation into simpler language, explain principles on specific life situations, publish manuals, use infographics, etc. Just do everything so that people understand the law.

People and corporations will spontaneously comply with any regulation, especially if they understand and identify with it. The more regulation, the more case law legislation, the less likely it is that individuals will become familiar with the rules and identify with them. If lawyers and judges find it difficult to orientate themselves in the sea of legislation, it is unrealistic to expect this from citizens and business corporations. What I do not know and what I do not understand, I cannot consciously observe.

There is much regulation, it is complex, contradictory and sometimes even against common sense. Nevertheless, there are many individuals and companies that want to comply with their legal obligations and restrictions. The State should appreciate such an effort even if it fails. Unfortunately, this is not happening. Example? Many clients invest large sums in ensuring so-called legal compliance. And although criminal law views situations where the company does its utmost to comply with an obligation as a mitigating circumstance or even a circumstance ensuring impunity, in practice the conditions are set so strictly that this essentially precludes their practical application. A similar situation prevails in competition law. I consider this a missed opportunity to increase the general level of compliance with regulation.

I believe that the wider legal profession is also playing a significant role in the current bad situation. Attorneys-at-law, academics, lawyers working for professional, non-profit and other organizations whose status allows them should engage in a public debate, offer their experience, draw attention to the inappropriateness of regulation, demand explanations, and present alternatives. Law-making and regulation need to be the subject of greater public debate.

Let’s change that.