The New Zealand Law Society is conducting a survey on the rule of law. See Rule of law survey – add to the discussion, fifth item. In question 5 of the survey, one is asked to describe, with a limit of 2000 characters, what one considers to be the elements of the rule of law. Then, in question 6, which you cannot go to unless and until you have answered question 5, the Society provides its version of the rule of law. Fortunately, I made a copy of the Society’s version, because I find I cannot go back into the survey as I have already completed it. This is how I answered question 5.
Well said Gary. I agree with what you say and your formulation of the answer. I haven't yet taken the survey but I suspect that if the answers do not conform with the NZLS template they will be ignored.
I note in the latest Law Talk there is an extensive piece on the arguments for tikanga and the law and the compulsory teaching thereof. My view is that tikanga forms a part of jurisprudence as an example of custom aspects of which may become mainstream. However the NZLS did not give any space to the arguments against the compulsory teaching of tikanga - clearly they are unfamiliar with audi alteram partem. The thing is that I find myself disenchanted with much that emanates from the NZLS. I must pay them money to keep my practicing certificate alive. But I see little purpose that they might otherwise fulfil that resonates with me.
I agree entirely. Gary’s superb analysis is right on the money. For me it is almost beyond belief that the Law Society should have swallowed the Tikanga Kool Aid. It should instead be campaigning for the Supreme Court to act more like that of the UK than SCOTUS.
I'm not a legal historian, but I've just discovered that the principles Gary sets out were first discussed by Gratian and his fellow jurists in Bologna in the 12th century. They were developed to decide when Germanic customary practices should be given the force of law. They are also the principles that the Supreme Court of NZ (in the Peter Ellis case) set aside as relics of colonialism. Perhaps our judges need to learn more legal history.
My preference is for the Thick Description approach (after Geertz), otherwise one needs, or may need, to look to the "Fundamental Rights" Law doctrine of Cooke P which is Sir Edward Coke CJ's natural Law.
I agree that arbitrary add ones should not be countenanced. For example, the Marxist fad for social justice nostrums (for group culpability on identity e.g. being male), which are collectivist, do not interface with our individual rights based jurisprudence.
This is my first exposure to thin and thick law and I haven't really grasped but thank you for trying. It's over my head. However that hasn't stopped me from having a free and unsolicited opinion.
I went to the Law Society's website and found that I could make a submission. I submitted some ramblings off the top of my head.
** Question 5 - what are the elements of the rule of law.
The word "enforceable" is used in the definitions of law that I have seen. However for the rule of law to actually be the rule of law then it must actually be enforced. If the rule of law is not enforced then it may be a law but it is not the rule of law. An unenforced law is just a useless puffed up declaration without consequence. Thus a definition of the rule of law must include their actual enforcement.
I say this because the rule of law in NZ is being undermined. Take for example the Maori protesters who are illegally occupying a former school in Northland preventing its sale. There is no punishment for them. The law is not enforced on them. They get away with it because they are Maori. Why should they get that special privilege? Where is the law? The situation is lawless. It makes people afraid to buy land. Laws that are not enforced - especially for political favouritism - undermines the ruling of NZ.
** Question 6 - What do you think are the key challenges to the rule of law in Aotearoa New Zealand?
The misinterpretation of the treaty to create an enthno-state.
Also groups like the Law Society trying to force changes on NZ. Such as this very question which uses “Aotearoa New Zealand” - probably against the will of its members and many or most NZers.
The Law Society should be independent and democratic rather than presumptuous and condescending. When the Law Society acts this way then it looks like it is captured by one group‘s ideology. Just like some judges and law schools pushing undefinable tikanga.
This causes people to lose faith that the law is reasonable and independent. Instead it looks like the law has adopted its own agenda against the public and parliament. Imagine if instead of promoting tikanga it smuggled in communism or theocracy or some other ideology. That’s one way of diminishing support of the rule of law in NZ - by going against the will of the people.
The rule of law is not itself law. It is a moral concept describing how society should be ordered to meet the needs of human beings living in society. Therefore, the rule of law does not itself get enforced, although as you rightly note the laws which are made to satisfy the requirements of the rule of law do need to be enforced. You are also correct that in New Zealand society today the rule of law is not being observed. You have given some pertinent examples.
In the first place, the rule of law proceeds on the basis that rule by men is bad; in principle no one has the right to exercise power and control over another. Therefore, laws should be established to set out what one may and may not do, and it should not be left to men to make the decisions.
As a practical reality, however, there must be persons who administer and enforce those laws. The compromise to meet that practical reality is to subject the administrators and enforcers to legal constraints so that they too are subject to law.
The “thin” rule of law incorporates these general principles and sets out the way in which those laws should operate, by concentrating on the form the laws should take. The general aim is for laws which apply to everyone, that are known, consistent (non-contradictory), avoid so far as possible the conferment of discretion, and so on. The aim of these formal characteristics is to make the laws objective in nature and application and as devoid of subjective elements as possible. By these means rule by men is avoided or minimized. These requirements are implicit in the requirement for rule by law, not by men.
As you note, tikanga cannot satisfy those requirements. Judges who claim entitlement to declare that tikanga is part of the law, and go on to do so in exercise of their claimed right, are acting in contravention of the rule of law because they are ascribing legal status to material which, even according to those claiming expertise in the exposition of its nature, can act best be described as a moral code adhered to by Māori. Tikanga admittedly cannot satisfy the requirements of the “thin” rule of law.
Going on now to consider the “thick” rule of law. Some say that there must be more to the rule of law than what is comprised in the “thin” rule. Some say that the rule of law requires that laws must incorporate a range of “human rights.” The rule of law as incorporating human rights is described as the “thick” rule of law. The problem with this is that for a particular person the rule of law may not be satisfied unless the legal system incorporates the values which that person considers to be important. Thus, for example, Tom Bingham wanted to include a full range of Human Rights. Justice Susan Glazebrook has gone further, saying that she will not recognise a legal system as complying with the rule of law if it does not contain redress for historical disadvantage.
I do not agree with these “thick” conceptions. The rule of law sets the standard against which legal systems and laws including constitutional law are to be judged for compliance. What is or is not embraced by the rule of law is not a matter of personal choice as Bingham and Glazebrook’s approach requires.
I say that one must look at the origins of the concept of the rule of law, to examine what it was that gave rise to the concept and why it is needed. Learning from the wisdom of the past and applying reason, we must try to identify the elements of the legal system’s content which are essential.
It must be remembered that the context for the rule of law is human beings living in society. A man alone on a desert island does not need laws, let alone the rule of law. There is no one who might wish to exercise power and control over him. But as soon as another joins him, there arises the potential for one to try and exercise power and control over the other, and as a consequence there is a potential need for a system to deal with that. I say “potential” because these individuals may be peaceful and perfectly happy to guide their affairs without surrendering to the temptation to use force against the other. However, human experience sadly shows that there are many who are incapable of exercising the self- restraint required, and there are some who have a deep-seated desire to rule over others and are prepared to use force to satisfy that desire. An obvious contemporary example of the latter is Vladimir Putin who will happily have his opponents murdered or locked up, so he may remain in power.
Essential for a society whose members are able to live and flourish, where individuals are able to interact with one another in pursuit of their individual interests, are laws which outlaw the use of force. These laws aim to create and protect a social environment within which society’s members are free to go about their lives in peace using their talents in the way they think fit. Therefore, I say that, as a matter of necessity for human beings living in society, the rule of law requires the legal system to incorporate laws outlawing the use of physical force against persons or their property, laws designed to allow members of society to be free and, so far as practicable (having regard to the need for such laws to be enforced), preventing one person from exercising power and control over another.
Additional laws are optional and not required by the rule of law. This is where democracy comes in as a separate desirable value. Its purpose is to enable citizens to participate in decisions concerning the optional additions.
Thank you for explaining thin and thick to me. I have a much clearer idea now. I'm really not being argumentative but I think that thick law is ultimately correct. There are factors outside of thin law that are essential to manage for thin law to succeed.
I support thin law here in NZ. It works for all the reasons that you point out. However there are entropic forces at work and that is why we are having this discussion. It seems to me those entropic forces are the domain of thick law - and they are hard to identify, explain or defend. It is the eternal battle of order and chaos. How can we put our finger on chaos?
Instead of saying that thick law is about human rights, maybe could rephrase it as human rage. We can enforce thin law on individuals who commit crimes out of rage and that is not a threat to the system. But what about the simmering rage of large parts of a society? That is definitely a threat to the rule of law.
When the Maori Party declared their own parliament and sovereignty they should have been expelled from parliament for breaking their oath. But they weren't. The problem is a lot deeper than just a few individuals or else it would be an easy fix with thin laws.
Look at Israel. After 3000 years of trauma they now have the attitude, "If you mess with us even a little bit then we will smash you." They freely ignore the thin laws of international bodies because there is no enforcement, no consequences for them. A nation's rage trumps international thin laws.
Putin took power from the oligarchs and brought law and order to Russia. In the 1990s Russia was essentially lawless. They didn't even have a title system for land. There was a lot of "rule of men." But Putin took control without a bloody civil war and brought a lot of order to their society - even if it is imperfect. So their thin laws are built on top of something else - a collection of difficult to rule oligarchs and subversive forces which I am sure are still there. They are controlled by a dictator - which is the rule of men.
So maybe for thin laws to work there has to be someone with a gun standing over it. The British Empire, Putin, Netanyahu... someone who will pull the trigger to make sure the thin law is enforced. Someone who says, "Stop. You have gone too far." Basically a king who will determine what the kingdom is. It seems to me that the default setting for humans is the rule of men and there are always power struggles. Ultimately a greater power - hopefully benevolent - keeps those other powers in check. Currently NZ is lacking that definitive leadership - hence the attempts of Maori groups to grab power and redefine NZ. Who is standing up to them? Other places are electing strongmen to power - maybe that situation will arise in NZ too to defend the rule of thin laws.
The origin of chaos and how to manage it is a vast topic. "Historical disadvantage" is another form of rage. Just ask the Jews or the Palestinians or Afghanis or slaves or indigenous people. Too much to say, not an easy topic. Good night Gary!
Well said Gary. I agree with what you say and your formulation of the answer. I haven't yet taken the survey but I suspect that if the answers do not conform with the NZLS template they will be ignored.
I note in the latest Law Talk there is an extensive piece on the arguments for tikanga and the law and the compulsory teaching thereof. My view is that tikanga forms a part of jurisprudence as an example of custom aspects of which may become mainstream. However the NZLS did not give any space to the arguments against the compulsory teaching of tikanga - clearly they are unfamiliar with audi alteram partem. The thing is that I find myself disenchanted with much that emanates from the NZLS. I must pay them money to keep my practicing certificate alive. But I see little purpose that they might otherwise fulfil that resonates with me.
I agree entirely. Gary’s superb analysis is right on the money. For me it is almost beyond belief that the Law Society should have swallowed the Tikanga Kool Aid. It should instead be campaigning for the Supreme Court to act more like that of the UK than SCOTUS.
Exactly right! That's what they would be doing if they were serving the interests of members and the public.
Thanks, David. The survey closes 5 pm, 30 June. Incidentally, there is a typo in my answer to question 5 -- civil should be civic.
I'm not a legal historian, but I've just discovered that the principles Gary sets out were first discussed by Gratian and his fellow jurists in Bologna in the 12th century. They were developed to decide when Germanic customary practices should be given the force of law. They are also the principles that the Supreme Court of NZ (in the Peter Ellis case) set aside as relics of colonialism. Perhaps our judges need to learn more legal history.
I have had a quick look at Gratian, courtesy of Google, and I can see that Gratian could have been a writer who influenced Locke.
My preference is for the Thick Description approach (after Geertz), otherwise one needs, or may need, to look to the "Fundamental Rights" Law doctrine of Cooke P which is Sir Edward Coke CJ's natural Law.
I agree that arbitrary add ones should not be countenanced. For example, the Marxist fad for social justice nostrums (for group culpability on identity e.g. being male), which are collectivist, do not interface with our individual rights based jurisprudence.
This is my first exposure to thin and thick law and I haven't really grasped but thank you for trying. It's over my head. However that hasn't stopped me from having a free and unsolicited opinion.
I went to the Law Society's website and found that I could make a submission. I submitted some ramblings off the top of my head.
** Question 5 - what are the elements of the rule of law.
The word "enforceable" is used in the definitions of law that I have seen. However for the rule of law to actually be the rule of law then it must actually be enforced. If the rule of law is not enforced then it may be a law but it is not the rule of law. An unenforced law is just a useless puffed up declaration without consequence. Thus a definition of the rule of law must include their actual enforcement.
I say this because the rule of law in NZ is being undermined. Take for example the Maori protesters who are illegally occupying a former school in Northland preventing its sale. There is no punishment for them. The law is not enforced on them. They get away with it because they are Maori. Why should they get that special privilege? Where is the law? The situation is lawless. It makes people afraid to buy land. Laws that are not enforced - especially for political favouritism - undermines the ruling of NZ.
** Question 6 - What do you think are the key challenges to the rule of law in Aotearoa New Zealand?
The misinterpretation of the treaty to create an enthno-state.
Also groups like the Law Society trying to force changes on NZ. Such as this very question which uses “Aotearoa New Zealand” - probably against the will of its members and many or most NZers.
The Law Society should be independent and democratic rather than presumptuous and condescending. When the Law Society acts this way then it looks like it is captured by one group‘s ideology. Just like some judges and law schools pushing undefinable tikanga.
This causes people to lose faith that the law is reasonable and independent. Instead it looks like the law has adopted its own agenda against the public and parliament. Imagine if instead of promoting tikanga it smuggled in communism or theocracy or some other ideology. That’s one way of diminishing support of the rule of law in NZ - by going against the will of the people.
Peter, thank you for your thoughtful comments.
The rule of law is not itself law. It is a moral concept describing how society should be ordered to meet the needs of human beings living in society. Therefore, the rule of law does not itself get enforced, although as you rightly note the laws which are made to satisfy the requirements of the rule of law do need to be enforced. You are also correct that in New Zealand society today the rule of law is not being observed. You have given some pertinent examples.
In the first place, the rule of law proceeds on the basis that rule by men is bad; in principle no one has the right to exercise power and control over another. Therefore, laws should be established to set out what one may and may not do, and it should not be left to men to make the decisions.
As a practical reality, however, there must be persons who administer and enforce those laws. The compromise to meet that practical reality is to subject the administrators and enforcers to legal constraints so that they too are subject to law.
The “thin” rule of law incorporates these general principles and sets out the way in which those laws should operate, by concentrating on the form the laws should take. The general aim is for laws which apply to everyone, that are known, consistent (non-contradictory), avoid so far as possible the conferment of discretion, and so on. The aim of these formal characteristics is to make the laws objective in nature and application and as devoid of subjective elements as possible. By these means rule by men is avoided or minimized. These requirements are implicit in the requirement for rule by law, not by men.
As you note, tikanga cannot satisfy those requirements. Judges who claim entitlement to declare that tikanga is part of the law, and go on to do so in exercise of their claimed right, are acting in contravention of the rule of law because they are ascribing legal status to material which, even according to those claiming expertise in the exposition of its nature, can act best be described as a moral code adhered to by Māori. Tikanga admittedly cannot satisfy the requirements of the “thin” rule of law.
Going on now to consider the “thick” rule of law. Some say that there must be more to the rule of law than what is comprised in the “thin” rule. Some say that the rule of law requires that laws must incorporate a range of “human rights.” The rule of law as incorporating human rights is described as the “thick” rule of law. The problem with this is that for a particular person the rule of law may not be satisfied unless the legal system incorporates the values which that person considers to be important. Thus, for example, Tom Bingham wanted to include a full range of Human Rights. Justice Susan Glazebrook has gone further, saying that she will not recognise a legal system as complying with the rule of law if it does not contain redress for historical disadvantage.
I do not agree with these “thick” conceptions. The rule of law sets the standard against which legal systems and laws including constitutional law are to be judged for compliance. What is or is not embraced by the rule of law is not a matter of personal choice as Bingham and Glazebrook’s approach requires.
I say that one must look at the origins of the concept of the rule of law, to examine what it was that gave rise to the concept and why it is needed. Learning from the wisdom of the past and applying reason, we must try to identify the elements of the legal system’s content which are essential.
It must be remembered that the context for the rule of law is human beings living in society. A man alone on a desert island does not need laws, let alone the rule of law. There is no one who might wish to exercise power and control over him. But as soon as another joins him, there arises the potential for one to try and exercise power and control over the other, and as a consequence there is a potential need for a system to deal with that. I say “potential” because these individuals may be peaceful and perfectly happy to guide their affairs without surrendering to the temptation to use force against the other. However, human experience sadly shows that there are many who are incapable of exercising the self- restraint required, and there are some who have a deep-seated desire to rule over others and are prepared to use force to satisfy that desire. An obvious contemporary example of the latter is Vladimir Putin who will happily have his opponents murdered or locked up, so he may remain in power.
Essential for a society whose members are able to live and flourish, where individuals are able to interact with one another in pursuit of their individual interests, are laws which outlaw the use of force. These laws aim to create and protect a social environment within which society’s members are free to go about their lives in peace using their talents in the way they think fit. Therefore, I say that, as a matter of necessity for human beings living in society, the rule of law requires the legal system to incorporate laws outlawing the use of physical force against persons or their property, laws designed to allow members of society to be free and, so far as practicable (having regard to the need for such laws to be enforced), preventing one person from exercising power and control over another.
Additional laws are optional and not required by the rule of law. This is where democracy comes in as a separate desirable value. Its purpose is to enable citizens to participate in decisions concerning the optional additions.
Thank you for explaining thin and thick to me. I have a much clearer idea now. I'm really not being argumentative but I think that thick law is ultimately correct. There are factors outside of thin law that are essential to manage for thin law to succeed.
I support thin law here in NZ. It works for all the reasons that you point out. However there are entropic forces at work and that is why we are having this discussion. It seems to me those entropic forces are the domain of thick law - and they are hard to identify, explain or defend. It is the eternal battle of order and chaos. How can we put our finger on chaos?
Instead of saying that thick law is about human rights, maybe could rephrase it as human rage. We can enforce thin law on individuals who commit crimes out of rage and that is not a threat to the system. But what about the simmering rage of large parts of a society? That is definitely a threat to the rule of law.
When the Maori Party declared their own parliament and sovereignty they should have been expelled from parliament for breaking their oath. But they weren't. The problem is a lot deeper than just a few individuals or else it would be an easy fix with thin laws.
Look at Israel. After 3000 years of trauma they now have the attitude, "If you mess with us even a little bit then we will smash you." They freely ignore the thin laws of international bodies because there is no enforcement, no consequences for them. A nation's rage trumps international thin laws.
Putin took power from the oligarchs and brought law and order to Russia. In the 1990s Russia was essentially lawless. They didn't even have a title system for land. There was a lot of "rule of men." But Putin took control without a bloody civil war and brought a lot of order to their society - even if it is imperfect. So their thin laws are built on top of something else - a collection of difficult to rule oligarchs and subversive forces which I am sure are still there. They are controlled by a dictator - which is the rule of men.
So maybe for thin laws to work there has to be someone with a gun standing over it. The British Empire, Putin, Netanyahu... someone who will pull the trigger to make sure the thin law is enforced. Someone who says, "Stop. You have gone too far." Basically a king who will determine what the kingdom is. It seems to me that the default setting for humans is the rule of men and there are always power struggles. Ultimately a greater power - hopefully benevolent - keeps those other powers in check. Currently NZ is lacking that definitive leadership - hence the attempts of Maori groups to grab power and redefine NZ. Who is standing up to them? Other places are electing strongmen to power - maybe that situation will arise in NZ too to defend the rule of thin laws.
The origin of chaos and how to manage it is a vast topic. "Historical disadvantage" is another form of rage. Just ask the Jews or the Palestinians or Afghanis or slaves or indigenous people. Too much to say, not an easy topic. Good night Gary!