An article in the Post before Christmas suggested that the new government may institute a shift in judicial appointments. It reported that Act and NZ First are keen to be much more active in appointing rigorous, black-letter law judges as and when able. The concern seems to be about judicial activism.
The term “black-letter law” caught my eye. It refers to the basic and fundamental principles of a legal field or subject. It represents well-established, clear, and widely accepted legal rules or principles that are often set forth in statutes, regulations or court decisions that have stood the test of time.
The term developed when the law began to be printed in the 16th century. Law books, and especially case reports, were printed in a Gothic typeface known as “black letter”. Its use persisted for many years, despite difficulties in reading it even for lawyers.
But “black-letter law” remained. Gothic’s resilience lay in the fact that it had come to symbolise the law of England itself. Decoupling the law from its accustomed appearance proved hard.
Moreover, a range of members in the legal community carried a vested interest in using letter shapes the writing and reading of which they monopolised. The law was locked up in a typeface that only the initiated understood. When Gothic yielded to the Roman typeface in the 18th century, there was a levelling of the playing field in accessing the law.
For many in the legal profession, “black-letter lawyers” prefer a literal interpretation of the law, as opposed to those who see the law as a tool for social justice and favour a more flexible approach to legal principles.
Part of what concerns Act and NZ First is constitutional. Parliament legislates. Judges interpret. The perception now is that in a few cases judges have strayed into the “lawmaking” function.
But judges do make law. The common law has all been judge-made. An example may be found in the law of negligence – the concepts were all developed by the judges. This has continued for centuries.
What seems to be of concern is the continuing development of Treaty of Waitangi jurisprudence (which has been going on since the 1980s) and the adoption of tikanga concepts into the legal mainstream.
For many this may be a bridge too far.
As it happens, the Law Commission has released a paper that considers ways in which tikanga may be incorporated in the law. It appears that some judges may have decided to pick up that ball and run with it.
Act and NZ First are of the view that the judges are moving too fast. If that is the case, Parliament can correct by legislation. But appointing “black-letter law” judges smacks of politicisation of the judiciary.
The concern must be, if indeed this is the case, that public confidence in the courts and ultimately the rule of law may well be eroded.
It must be remembered the courts have neither the power of the purse nor the sword and as such are the least dangerous branch of government. The courts rely on the confidence of the public that judgments will be properly and fairly rendered according to law.
It seems that Act and NZ First are concerned about judicial overreach. This is a phantom fear. Legislation is the domain of Parliament and judicial decisions may be changed or corrected by legislation. That has happened before and will happen again. Politicisation of the judiciary is not the answer. l
