These features are necessary for a well-ordered society.
They are not, however, sufficient for a flourishing society because the nature of the laws also matters. Oppressive laws are a feature of impoverishing authoritarian societies.
It follows that oppressive laws should be resisted, while retaining the rule of law, as defined above.
In the last fortnight Gary Judd KC has questioned at length the view of Supreme Court Justice Susan Glazebrook on this matter. He did so in an article in LawNews published by the Auckland District Law Society.
In May 2021, Justice Glazebrook gave a speech headed “The Rule of Law: Guiding Principle or Catchphrase?”
Even for a senior judge to suggest it might be just a catchphrase is unnerving.
Along the way Glazebrook concluded the rule of law “cannot be supported” if doing so means accepting a legal system that includes terrible laws.
This looks like the fallacy of the false alternative. A good society needs both features – good laws backed by the rule of law.
On international rankings, New Zealand’s laws are good. Of course, they could be much better, given enough political support for change. Those who want change need to win the public debate.
So, what are the grounds for concern about the rule of law in New Zealand?
The Government’s recent Grocery Industry Competition Bill is a concern. The Government rejected the Commerce Commission’s sober assessment of the competitive issues and remedies. The Bill responds instead to populist pressures to ‘do something’ about profits.
As such the Bill responds to symptoms, not causes.
The risk, the likelihood even, is that its red tape will raise industry costs and product prices to customers compared to what might have been achieved otherwise, perhaps while also reducing profits. Is this what anyone really wants?
Such populist decision-making has rule of law implications. Industry leaders in other potential scapegoat industries, such as banking, insurance, electricity and telecommunications have no reason for confidence that such populist lawmaking will not happen to them.
Such uncertainty about the law is bad for planning and investment. Low investment for this reason holds back productivity growth.
Exhibit B is inadequate and inconsistent enforcement of existing laws. Too many communities are complaining that they feel unsafe. They think violence and illegality is being inadequately policed. The repeated attacks on predominantly Indian dairy owners are particularly outrageous.
Another example is the prolonged intimidating gang invasion of Christchurch Hospital earlier this year. As well-known commentator Chris Trotter observed, a civilisation that allows the law to be broken with impunity will not remain civilised for very long.
Given all this, the debate at the top of the legal profession as to what the rule of law means is fundamental. Here is Judge Glazebrook’s conclusion on the matter in 2021:
“And as an overall conclusion on the rule of law generally, I finish where I began with my title. The rule of law is the guiding principle as long as it includes human rights, access to justice, and I would add, redress for social historical disadvantage. If that is the case, it is also an appropriate catch cry for a better and more just world.”
I read her speech as debating whether the rule of law should in future be given a narrow meaning (as above) or a politically activist ‘social justice’ meaning. Those are my words. Hers were a ‘thin’ meaning or a ‘thick’ meaning.
I doubt that she meant that it was the thick version or nothing. But can her thick version be achieved other than at some sacrifice of the thin version?
The thin version protects the individual against all comers, including the State. Group-based justice may not.
In his critique in LawNews, Judd asked for clarity about what the rule of law is to mean if it is to include redress for social historical disadvantage. He worried that the means chosen for such redress may breach the rule of law.
Judd also asked who the “we” referred to in the speech’s clause “until we complete the process of decolonisation”.
He called for judges to stand up for the fundamental principle that “no New Zealander has power or control over any other New Zealander unless it is given by laws which apply equally to each and every New Zealander”.
Judge Glazebrook’s speech did acknowledge there is no “clear mechanism” at hand “for balancing individual and collective interests”. She also listed several material concerns and uncertainties as to how judges might incorporate Māori tikanga into the common law. So why rush in?
It is not hard to see more problems. For example, who should be made liable when almost 30 per cent of those living in New Zealand were born overseas? What should be the quantum of redress, and would there be any end to it?
These issues are deeply political.
Under the ‘thin’ concept, the rule of law requires judges to impartially apply the law as it is. It is not their role to pursue political agendas.
So just where does our Supreme Court stand now on the rule of law?
- Dr Bryce Wilkinson is a senior fellow at The New Zealand Initiative.
- The original version of Dr Bryce Wilkinson’s opinion piece claimed LawNews was published by the New Zealand Law Society. He was wrong. LawNews is published by the Auckland District Law Society. We apologise for the error.
