A question for the lawyers, from an engineer. How is it that the courts can ‘reflect[ing] a “living law” approach that evolves with societal values’ without having robust mechanisms to work out what these are?
The term "living law" is not a widely recognised as a category within New Zealand jurisprudence. It's more common to see terms like:
• Common Law: This refers to law developed through judicial decisions, as opposed to
legislation. It's a significant part of New Zealand's legal system.
• Statutory Law: This refers to law created by Parliament through Acts of Parliament.
• Customary Law: This refers to law based on long-standing traditions and practices
within a particular community. It's recognized in New Zealand, particularly in relation
to Māori customary law.
• International Law: This refers to rules and principles governing relations between
states. It can influence New Zealand law, but it's not directly binding on individuals.
Possible Interpretations of "Living Law":
While "living law" isn't a formal category, it could be interpreted in a few ways such as arguing that law should reflect the values and norms of society or Maori for example. Which runs parallel with “Living Document” labels now given to the Treaty and the changing societal views now being driven by certain political parties.
In the Context of New Zealand:
• Māori Customary Law: This is a good example of "living law" in New Zealand. It's a
dynamic system that continues to evolve and adapt to modern circumstances, while
still respecting its traditional foundations.
• Judicial Interpretation: New Zealand courts play an important role in interpreting and
applying existing law. This process of interpretation can be seen as "living law" as it
adapts legal principles to new situations.
The phrase "living law" could be used by activists seeking to impose more discretion in seeking their preference in law, but it's important to understand the potential implications and nuances:
Potential for Misuse:
• Subverting the Rule of Law: The idea of "living law" could be misused to justify
ignoring or circumventing existing laws and statutes. This could lead to a situation
where activists are able to impose their own interpretations of the law, potentially
undermining the rule of law and creating legal uncertainty.
• Selective Application: Activists might use "living law" to selectively apply certain legal
principles based on their own preferences, potentially leading to inconsistent and
unfair outcomes.
• Lack of Transparency: The concept of "living law" might be used to justify decisions
that are opaque or difficult to challenge, as it emphasises context and interpretation
over clear rules and procedures. Convenient where the courts have been convinced
that "Maori law" and Tikanga is based on unwritten cultural beliefs, traditions and
mystical gods.
Key Considerations:
Balance: The use of "living law" should be balanced with the need for clear rules, predictable outcomes, and respect for existing legal frameworks.
• Transparency and Accountability: Decisions based on "living law" should be
transparent and accountable, with clear justification and mechanisms for challenge.
• Public Participation: The development and application of "living law" should involve
public participation and consultation to ensure that it reflects the values and interests
of society as a whole. At the moment the Government is refusing public participation
in the Treaty Principles Bill that will have a element of “living document” and “living
law” wrapped into it by activists.
The term "living law" as a label can be a powerful tool for promoting justice and equity, as will be explained to Parliament, but it can also be misused to subvert the rule of law. It's crucial to approach this concept with caution, ensuring that it's used responsibly and in a way that promotes transparency, accountability, and respect for the legal system.
Which groups in the legal profession see “living law” as a legitimate and fruitful concept? And why? Or is this more a phrase owned by external groups?
I don't know. I had never considered "living law" until I read your comment. Having done a little investigation, it seems to me to be an example of appropriation of the term "law" for ideological purposes much as the term "liberal" has been appropriated as a description of statist policies completely at odds with the liberalism of the Enlightenment. See "Our Poisoned Language," in Hayek's The Fatal Conceit and Confucious "when words lose their meaning people will lose their liberty."
the courts are so reluctant to interpret the law in a way that robustly upholds human rights for all New Zealanders but then seem happy to put legalities aside to give rights to a tiny minority. That is the power of propaganda / psy-ops by which people are unconsciously manipulated to adopt a world view that is acceptable to the ingroup of the day.
Thank you Gary for writing and explaining these legal issues
Parliament is supreme. More & more I’m aware of the Supreme Court & the Appeal Courts activity to usurp parliaments power. And when I saw a whole bunch of KC’s urging parliament to their way of thinking, which to my mind was flawed, I can understand why our courts are somewhat lacking, given the intellectual pool from which judges are selected seems tainted by activism. They are judges not statute jaw makers.
Many young lawyers I think go into the law to arm their desire to be activists. OK but don’t become a Judge.
Yes parliament can/does make ‘bad’ law. When our judges see this in their application of that law, is there a process by which they can report it to the chief judge who then exercises discretion in advising the attorney general of any recommendations for amending the law?
I’d be surprised if there was not, in which case this ought to be the way the courts communicate their views to the Govt. Not by overriding parliaments laws or by substituting their own law over that of parliaments
Thanks, Alasdair. As you will know, I've written about the KCs. I agree their behaviour creates concern about the intellectual pool. I think you may be right about motivations of some young lawyers. Same applies to journalists and many public "servants."
Judges can and quite often do make recommendations about "bad" law in their judgments. That is the proper way of doing so. Flouting Parliament is a disgraceful abuse of judicial office.
IMHO - The government is unlikely to adopt the proposed fix for several reasons. First, Dr. Amokura Kawharu, the President of the Law Commission, appointed by the previous Labour government, remains in position, influencing Parliament's consideration of the Commission's perspective.
Although concerns have been raised about courts overstepping their boundaries, this reflects a natural evolution towards contextual analysis in New Zealand law rather than a radical departure from it. While it is valid to question whether courts may engage in political activity by examining the reasoning behind judgments, it is crucial to understand that contextual analysis aims to address complex social and historical factors, as demonstrated in R v. Witika.
The concerns about a "looming constitutional crisis" may be overstated; the New Zealand legal system has mechanisms to prevent judicial overreach, ensuring accountability to Parliament and the public. The shift towards contextual analysis is generally viewed positively by Parliament and the Law Commission, as it allows for a more equitable application of the law.
Additionally as another example, while UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples) is not law, its principles can still influence judicial decision-making. Courts may consider UNDRIP in light of the Treaty of Waitangi, international law, and parliamentary intent, reflecting a "living law" approach that evolves with societal values. Ultimately, the same can be said for the integration of tikanga Māori into the legal system. Apparently representing a significant step towards recognising Maori rights, but it requires careful navigation to maintain the balance of power between the judiciary and Parliament. Who is balancing the spinning plates?
In summary, while the argument for judicial activism through cases like R v. Witika is compelling, it necessitates a thoughtful dialogue about the implications for New Zealand's constitutional framework. Thank you, Gary Judd KC, for raising these important concerns.
You're right, Gary. I was taking a broader perspective.
You present a strong argument that the NZSC's actions in the Edwards case constitute a serious breach of its jurisdiction and a threat to the constitutional order in New Zealand. So your concerns are about the NZSC's political activity and its potential to undermine its own credibility are particularly noteworthy bringing New Zealand one step closer to a constitutional crisis.
It raises important questions about the role of the judiciary in a democratic society. It highlights the need for judicial restraint and the importance of maintaining the separation of powers between the judiciary, the executive, and the legislature. This is what sparked my input in short.
My review doesn't directly address the Supreme Court's actions in the Edwards case as a clear-cut case of exceeding jurisdiction. However, your piece raised my concerns about the increasing role of the court's adopting contextual analysis to consider non-legislative principles like UNDRIP and tikanga Māori. Which are relevant to the broader discussion about the judiciary's role and potential for overreach.
While I don't explicitly argue that the SC is acting without jurisdiction in a specific instance, my review highlights the potential for this to become a concern as the courts increasingly embrace a more activist approach.
The idea that the court might consider principles that are not formally enshrined in law raises questions about the boundaries of its authority and the potential for influencing the legislative process as you did refer.
Perhaps my review is more about raising wider awareness of the potential for this type of overreach rather than presenting a specific case of it.
I hope my concerns contribute to the ongoing dialogue about the evolving role of the judiciary in New Zealand and the need for careful navigation of the balance of power within our constitutional framework.
I agree with your assessment that there is a risk of constitutional breakdown in NZ. A breakdown in constitutional order would undoubtedly lead to national instability. The NZ Constitution doesn't have specific provisions directly addressing national instability, but its core principles, combined with broader legal frameworks, provide a foundation for addressing potential risks?
You referred to the 'rule of law' in previous discussions. While it doesn't explicitly prohibit judicial overreach, it implicitly restricts it through its underlying principles does it not? The separation of powers, the principle of legality, judicial restraint, respect for parliamentary sovereignty, checks and balances, and the proper application of judicial review all contribute to preventing the judiciary from usurping the legislative function and creating new laws through overly broad interpretations. The 'rule of law', in its essence, aims to ensure that the judiciary acts as an interpreter of the law, not as a law-maker?
Then the Constitution Act 1986 also plays a crucial role. The Act outlines the separation of powers between the executive, legislature, and judiciary. This structure, designed to prevent any one branch from becoming too powerful, is a fundamental principle for maintaining a stable and functioning democracy. It affirms the principle of parliamentary sovereignty, meaning Parliament has the ultimate power to make laws.
Are these potential challenges to constitutional order being "overlooked" by activist judges? Consider the recent debate surrounding the SC's interpretation of the Marine and Coastal Area (Takutai Moana) Act 2011. It highlights the delicate balance between judicial interpretation and legislative intent. While the courts have a role in interpreting laws, they must avoid overstepping their boundaries and effectively legislating through their interpretations. The principle of judicial restraint is evident in cases where courts have upheld parliamentary sovereignty by deferring to the legislative intent when interpreting laws. The system of checks and balances is demonstrated in the process of judicial review. While the courts have the power to review legislation for its constitutionality, they are subject to oversight by Parliament, which can amend or overturn judicial decisions through legislation. As you recommend the fix is for Parliament to now step in.
But Parliament must continue to enact clear and consistent legislation, while the judiciary must exercise caution in its application of contextual analysis, ensuring that its decisions are grounded in law and are not influenced by political pressures or bias.
It goes so far as to affect the future of NZ's sovereignty potentially, so it depends on finding a way to navigate these complex issues with wisdom, respect, and a commitment to intent of Statue. So why is this happening in NZ now?
At this stage we'd better involve the Australians. After all, as they say, they are the creme de la creme, as their ancestors were all selected by the finest judges in England.
A question for the lawyers, from an engineer. How is it that the courts can ‘reflect[ing] a “living law” approach that evolves with societal values’ without having robust mechanisms to work out what these are?
They can't. Such views are the consequence of personal predilections and are completely invalid in judicial decision-making.
The term "living law" is not a widely recognised as a category within New Zealand jurisprudence. It's more common to see terms like:
• Common Law: This refers to law developed through judicial decisions, as opposed to
legislation. It's a significant part of New Zealand's legal system.
• Statutory Law: This refers to law created by Parliament through Acts of Parliament.
• Customary Law: This refers to law based on long-standing traditions and practices
within a particular community. It's recognized in New Zealand, particularly in relation
to Māori customary law.
• International Law: This refers to rules and principles governing relations between
states. It can influence New Zealand law, but it's not directly binding on individuals.
Possible Interpretations of "Living Law":
While "living law" isn't a formal category, it could be interpreted in a few ways such as arguing that law should reflect the values and norms of society or Maori for example. Which runs parallel with “Living Document” labels now given to the Treaty and the changing societal views now being driven by certain political parties.
In the Context of New Zealand:
• Māori Customary Law: This is a good example of "living law" in New Zealand. It's a
dynamic system that continues to evolve and adapt to modern circumstances, while
still respecting its traditional foundations.
• Judicial Interpretation: New Zealand courts play an important role in interpreting and
applying existing law. This process of interpretation can be seen as "living law" as it
adapts legal principles to new situations.
The phrase "living law" could be used by activists seeking to impose more discretion in seeking their preference in law, but it's important to understand the potential implications and nuances:
Potential for Misuse:
• Subverting the Rule of Law: The idea of "living law" could be misused to justify
ignoring or circumventing existing laws and statutes. This could lead to a situation
where activists are able to impose their own interpretations of the law, potentially
undermining the rule of law and creating legal uncertainty.
• Selective Application: Activists might use "living law" to selectively apply certain legal
principles based on their own preferences, potentially leading to inconsistent and
unfair outcomes.
• Lack of Transparency: The concept of "living law" might be used to justify decisions
that are opaque or difficult to challenge, as it emphasises context and interpretation
over clear rules and procedures. Convenient where the courts have been convinced
that "Maori law" and Tikanga is based on unwritten cultural beliefs, traditions and
mystical gods.
Key Considerations:
Balance: The use of "living law" should be balanced with the need for clear rules, predictable outcomes, and respect for existing legal frameworks.
• Transparency and Accountability: Decisions based on "living law" should be
transparent and accountable, with clear justification and mechanisms for challenge.
• Public Participation: The development and application of "living law" should involve
public participation and consultation to ensure that it reflects the values and interests
of society as a whole. At the moment the Government is refusing public participation
in the Treaty Principles Bill that will have a element of “living document” and “living
law” wrapped into it by activists.
The term "living law" as a label can be a powerful tool for promoting justice and equity, as will be explained to Parliament, but it can also be misused to subvert the rule of law. It's crucial to approach this concept with caution, ensuring that it's used responsibly and in a way that promotes transparency, accountability, and respect for the legal system.
Which groups in the legal profession see “living law” as a legitimate and fruitful concept? And why? Or is this more a phrase owned by external groups?
I don't know. I had never considered "living law" until I read your comment. Having done a little investigation, it seems to me to be an example of appropriation of the term "law" for ideological purposes much as the term "liberal" has been appropriated as a description of statist policies completely at odds with the liberalism of the Enlightenment. See "Our Poisoned Language," in Hayek's The Fatal Conceit and Confucious "when words lose their meaning people will lose their liberty."
the courts are so reluctant to interpret the law in a way that robustly upholds human rights for all New Zealanders but then seem happy to put legalities aside to give rights to a tiny minority. That is the power of propaganda / psy-ops by which people are unconsciously manipulated to adopt a world view that is acceptable to the ingroup of the day.
Thank you Gary for writing and explaining these legal issues
Parliament is supreme. More & more I’m aware of the Supreme Court & the Appeal Courts activity to usurp parliaments power. And when I saw a whole bunch of KC’s urging parliament to their way of thinking, which to my mind was flawed, I can understand why our courts are somewhat lacking, given the intellectual pool from which judges are selected seems tainted by activism. They are judges not statute jaw makers.
Many young lawyers I think go into the law to arm their desire to be activists. OK but don’t become a Judge.
Yes parliament can/does make ‘bad’ law. When our judges see this in their application of that law, is there a process by which they can report it to the chief judge who then exercises discretion in advising the attorney general of any recommendations for amending the law?
I’d be surprised if there was not, in which case this ought to be the way the courts communicate their views to the Govt. Not by overriding parliaments laws or by substituting their own law over that of parliaments
Thanks, Alasdair. As you will know, I've written about the KCs. I agree their behaviour creates concern about the intellectual pool. I think you may be right about motivations of some young lawyers. Same applies to journalists and many public "servants."
Judges can and quite often do make recommendations about "bad" law in their judgments. That is the proper way of doing so. Flouting Parliament is a disgraceful abuse of judicial office.
IMHO - The government is unlikely to adopt the proposed fix for several reasons. First, Dr. Amokura Kawharu, the President of the Law Commission, appointed by the previous Labour government, remains in position, influencing Parliament's consideration of the Commission's perspective.
Although concerns have been raised about courts overstepping their boundaries, this reflects a natural evolution towards contextual analysis in New Zealand law rather than a radical departure from it. While it is valid to question whether courts may engage in political activity by examining the reasoning behind judgments, it is crucial to understand that contextual analysis aims to address complex social and historical factors, as demonstrated in R v. Witika.
The concerns about a "looming constitutional crisis" may be overstated; the New Zealand legal system has mechanisms to prevent judicial overreach, ensuring accountability to Parliament and the public. The shift towards contextual analysis is generally viewed positively by Parliament and the Law Commission, as it allows for a more equitable application of the law.
Additionally as another example, while UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples) is not law, its principles can still influence judicial decision-making. Courts may consider UNDRIP in light of the Treaty of Waitangi, international law, and parliamentary intent, reflecting a "living law" approach that evolves with societal values. Ultimately, the same can be said for the integration of tikanga Māori into the legal system. Apparently representing a significant step towards recognising Maori rights, but it requires careful navigation to maintain the balance of power between the judiciary and Parliament. Who is balancing the spinning plates?
In summary, while the argument for judicial activism through cases like R v. Witika is compelling, it necessitates a thoughtful dialogue about the implications for New Zealand's constitutional framework. Thank you, Gary Judd KC, for raising these important concerns.
Sorry, Rob, you've lost me on the relevance of what you say to the SC's acting without jurisdiction,
You're right, Gary. I was taking a broader perspective.
You present a strong argument that the NZSC's actions in the Edwards case constitute a serious breach of its jurisdiction and a threat to the constitutional order in New Zealand. So your concerns are about the NZSC's political activity and its potential to undermine its own credibility are particularly noteworthy bringing New Zealand one step closer to a constitutional crisis.
It raises important questions about the role of the judiciary in a democratic society. It highlights the need for judicial restraint and the importance of maintaining the separation of powers between the judiciary, the executive, and the legislature. This is what sparked my input in short.
My review doesn't directly address the Supreme Court's actions in the Edwards case as a clear-cut case of exceeding jurisdiction. However, your piece raised my concerns about the increasing role of the court's adopting contextual analysis to consider non-legislative principles like UNDRIP and tikanga Māori. Which are relevant to the broader discussion about the judiciary's role and potential for overreach.
While I don't explicitly argue that the SC is acting without jurisdiction in a specific instance, my review highlights the potential for this to become a concern as the courts increasingly embrace a more activist approach.
The idea that the court might consider principles that are not formally enshrined in law raises questions about the boundaries of its authority and the potential for influencing the legislative process as you did refer.
Perhaps my review is more about raising wider awareness of the potential for this type of overreach rather than presenting a specific case of it.
I hope my concerns contribute to the ongoing dialogue about the evolving role of the judiciary in New Zealand and the need for careful navigation of the balance of power within our constitutional framework.
.
I agree and it is my concern that judges are abusing their constitutional position. This will lead to a break down in constitutional order.
Dear Gary,
I agree with your assessment that there is a risk of constitutional breakdown in NZ. A breakdown in constitutional order would undoubtedly lead to national instability. The NZ Constitution doesn't have specific provisions directly addressing national instability, but its core principles, combined with broader legal frameworks, provide a foundation for addressing potential risks?
You referred to the 'rule of law' in previous discussions. While it doesn't explicitly prohibit judicial overreach, it implicitly restricts it through its underlying principles does it not? The separation of powers, the principle of legality, judicial restraint, respect for parliamentary sovereignty, checks and balances, and the proper application of judicial review all contribute to preventing the judiciary from usurping the legislative function and creating new laws through overly broad interpretations. The 'rule of law', in its essence, aims to ensure that the judiciary acts as an interpreter of the law, not as a law-maker?
Then the Constitution Act 1986 also plays a crucial role. The Act outlines the separation of powers between the executive, legislature, and judiciary. This structure, designed to prevent any one branch from becoming too powerful, is a fundamental principle for maintaining a stable and functioning democracy. It affirms the principle of parliamentary sovereignty, meaning Parliament has the ultimate power to make laws.
Are these potential challenges to constitutional order being "overlooked" by activist judges? Consider the recent debate surrounding the SC's interpretation of the Marine and Coastal Area (Takutai Moana) Act 2011. It highlights the delicate balance between judicial interpretation and legislative intent. While the courts have a role in interpreting laws, they must avoid overstepping their boundaries and effectively legislating through their interpretations. The principle of judicial restraint is evident in cases where courts have upheld parliamentary sovereignty by deferring to the legislative intent when interpreting laws. The system of checks and balances is demonstrated in the process of judicial review. While the courts have the power to review legislation for its constitutionality, they are subject to oversight by Parliament, which can amend or overturn judicial decisions through legislation. As you recommend the fix is for Parliament to now step in.
But Parliament must continue to enact clear and consistent legislation, while the judiciary must exercise caution in its application of contextual analysis, ensuring that its decisions are grounded in law and are not influenced by political pressures or bias.
It goes so far as to affect the future of NZ's sovereignty potentially, so it depends on finding a way to navigate these complex issues with wisdom, respect, and a commitment to intent of Statue. So why is this happening in NZ now?
At this stage we'd better involve the Australians. After all, as they say, they are the creme de la creme, as their ancestors were all selected by the finest judges in England.