The title of the article might seem to come from the controversy caused by the Law of Comprehensive Guarantee of Sexual Freedom. Certainly, the norm, better known as the law of only yes is yes, will hardly go down in history as an example of good legislative technique and the least that can be said, as Felipe González stated, is that "it is poorly done." However, without prejudice to the low quality of this controversial law and the serious consequences that its application is generating, it is necessary to open the angle of the debate and move from the particular to the general.
The real problem is our legislative hypertrophy: we legislate a lot, too much, sometimes quickly, and often badly. Curiously, there are exceptions –as in the case of the strike– in which the opposite happens. In other words, there is no legislation on an area of singular importance regarding the protection of rights and of enormous economic and social consequences. Article 28.2 of the Constitution mandates its organic development and, however, after more than four decades, the right (which should not be) to strike and the rights of others against those who practice it continue to not be protected as it should.
In order to achieve the quality that our legislative body lacks, our normative development should be subject to a continuous check on the impact of the norms. And this permanent analysis should involve not only those constitutional bodies that mandatorily issue reports (and to which greater attention should be paid), but also the affected economic and social sectors on which compliance with the legislation will fall. We often resort to the easy resource of blaming the judges. And it shouldn't be like that. Of course there are those on the right, as there are those in the center and, of course, on the left. And there are good and bad; diligent and lazy... as in all professions, but the main problem lies in the complexity of our regulatory framework and not in the judiciary.
And if we limit our legislative hypertrophy to the economic-social field, both the European Union and the OECD prescribe that regulation must guarantee a legal framework that allows the objective to be regulated to be met, that offers the necessary incentives to stimulate economic activity and that ensures the simplification of processes and the reduction of administrative burdens. Can this quality be identified in our legal system? Honestly, in general terms the answer is negative.
According to the Bank of Spain, from 1979 to 2021 around 400,000 new regulations have been enacted in the State. We have so many rules that in some cases they are not applied because their existence is ignored, and in others it is difficult to know which of the existing ones should be applied. And what's more, sometimes it happens that the processing of a judicial or administrative procedure on a certain topic can coexist in a few years with various changes in the regulations that regulate the object of the process. Where are the legal certainty and predictability of the order, so necessary to be able to undertake an economic or social activity or plan and materialize an investment?
Montesquieu already warned that “useless laws weaken the necessary ones”. And long before, the wise Don Quixote prescribed the need to "do few and that they be fulfilled". In other words, we should legislate less and legislate better.
