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The Law of Tyrants? : Detail, Discretion and Simplicity in a Rule of Law Environment Abstract Douglas J Shaw South Africa has moved from an environment of Parliamentary Sovereignty to a Constitutional state and with this has come a new awareness of the ‘rule of law’ issue. At the same time Parliament is producing a vast amount of new laws and regulations. This may be inconsistent with the rule...

From Random to Rational: Using Law to deal with Risk in the South African Context Douglas J Shaw Abstract This Article reviews advances in global thinking about the management of risk by legal and administrative means and makes some suggestions about how the insights could be applied in a South African context. The current system for assessing risk is irrational because some lives are saved at ...

The Law of Tyrants? : Detail, Discretion and Simplicity in a Rule of Law Environment Abstract Douglas J Shaw South Africa has moved from an environment of Parliamentary Sovereignty to a Constitutional state and with this has come a new awareness of the ‘rule of law’ issue. At the same time Parliament is producing a vast amount of new laws and regulations. This may be inconsistent with the rule...

4.Purpose and Objectives of Law 4.1 Introduction When discussing the question of the purpose and objectives of law the concern is not with traditional jurisprudential answers but with what the statute or rule actually does or tries to do. It is our aim to attempt to discern different good practice for the different types of statutory 1 purpose. The purposes from the beginning of the Acts mentio...

8 Institutional Arrangements 8.1 Institutions and Organisations to Ensure Efficient Law The purpose of law is mostly to change behaviour. This is not always easy. Posner said Bentham had a characteristically modern belief in the plasticity of... social institutions.467 8.1.1 Cost Benefit Analysis Institutions At the very least one might propose that government makes a policy to run costs bene...

9 Checklist 9.1 Find the Comparative Costs of Alternatives Look at the alternatives to law * Repeal existing law * No action * Information Provision * Self Regulation * Co Regulation * Setting outcomes * Extending property rights * Creating Markets 9.2 Check Law for Drafting Issues 1. Is it Constitutional: rule of law, separation of powers 2. Does it create undue discretion 9.3 Cost Proposal Lo...

~494 The Wealth Transfer Issue ~.1 Introduction The vast majority of the chapters in this book apply regardless of whatever political position held. Both the left and the right see it as a good thing if the whole of society gets richer through matters being carried out more efficiently. It is a different matter when we start to discuss transferring one person's wealth and income from one perso...

5 Means of Law and Regulation with Alternatives Law and regulation like many goods and services have substitute goods. This is becoming widely accepted. The Australian Regulatory Impact Statements ask, 'Is a range of viable options assessed including, as appropriate, non-regulatory options?'52 In Louw's checklist for good law53 he asks 'Have the alternative methods of attaining the purpose of t...

6.5 Higher Level Analysis After identifying the basic units of cost and benefit identification, it is useful to look at identifying typical situations and what the cost benefit analysis might be likely to tell us. 6.5.1 The Diver Model Colin Diver has a very interesting paper where he distinguishes between 3 intrinsic types of regulations. His starting point is the contradiction. We cannot seem...

X168 Risk X.1 Risk 1. The risk trade-off should be the same across laws 2. Ways of Dealing with risk: 3. Safety regulations are one way of dealing with risk 4. Information about risk is another way 5. Insurance Factors to Take Into Account when dealing with risk 6. Risk Spreading 7. Moral Hazard 8. Adverse Selection 9. Uncertainty vs. Risk X.1.1 Equalise Risk Trade-Off The Risk trade-off should...