When I was a young man, I took this blessing for granted. I did not understand the saying that every generation needs to fight for its own freedom of action. Where was the threat?
This article explains the fear that the threat is from within, and the trend is not our friend. When the rule of law is ill-understood, it can be eroded even by people who mean well.
The article is motivated in part by a recent article in LawNews on the rule of law by Gary Judd QC. LawNews is published by the Auckland District Law Society. Judd critically assessed a speech in May 2021 on the rule of law by Susan Glazebrook, a Supreme Court Judge.
Today’s article is also motivated by concerns about erratic decision-making involving competition law. The Commerce Commission recently correctly determined that undue barriers to entry could be limiting supermarket competition.
This did not satisfy populist prejudices, in part because the Commission’s preliminary assessment did not pay adequately identify the entry barrier concern.
The Government rejected the Commission’s recommendation. Its Grocery Industry Competition Bill is populist. It addresses symptoms, not causes. The regulatory red tape will raise industry costs and consumers will likely pay higher prices than necessary even if profits are lower.
Law changes driven by populism are unpredictable. That inhibits planning and investment.
Moreover, this is not just about supermarkets. Other industry leaders in sectors such as electricity, banking, insurance and telecommunications are also vulnerable to unpredictable law changes that fly against professional advice. The Government is giving them an unnerving signal.
Admittedly, the quality of regulatory assessments can be problematic. The Commerce Commission’s responsibilities are broad. Its staff cannot hope to understand the complexities of an industry as well as those whose livelihood depends on doing so. Its conclusions can be unpredictable.
What then is the rule of law and why is it so important?
In a nutshell, the rule of law is the principle that everyone is subject to the law, including those in government, and that laws must be clear, predictable, and applied equally to all who are subject to them.
The rule of law is not the rule of an inconstant ruler or a “something must be done” parliament. Legal uncertainties stifle planning.
Nor can people transact easily if they do not even know what the law means today. As Glazebrook’s speech observed, the Supreme Court recently elevated the legal status of a Mäori customary law doctrine called tikuna.
What this means for future legal decisions seems to defy clarification. It appears that pakeha judges, at least, should not presume to decide what it means, not having a ‘lived experience’ of it.
Inadequate enforcement is another current threat to our rule of law. Too many communities are complaining that they feel unsafe. They think violence and illegality is being inadequately policed. The attacks on predominantly Indian dairy owners are particularly outrageous.
Well-known commentator, Chris Trotter, wrote in the context of an unpoliced intimidating gang invasion last year of a Christchurch hospital, that a country that does not police the law, will not be lawful for very long. Precisely.
The degree to which the rule of law, as summarised above, is under threat is illustrated by the title to Glazebrook’s speech. It is “The Rule of Law: Guiding Principle or Catchphrase”.
That something as fundamental to civil order as the rule of law could be thought to have been reduced to a mere catchphrase is breath-taking.
On examination, Glazebrook was 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.
The narrow meaning is blind as to details. For example, the law could permit slavery, without violating the narrow meaning. The US constitution originally did.
Glazebrook concludes that the rule of law “cannot be supported” if doing so means accepting a legal system that includes abhorrent laws.
But it does not mean this. Her conclusion confuses the part with the whole. The ’thin’ rule of law is a necessary condition for civil society, it is not a sufficient condition. A society without the rule of law promises to be one of arbitrary brutality.
Totalitarian governments that consistently enforce oppressive laws demonstrate that having the rule of law is insufficient in itself for the good society. Did anyone of standing ever think otherwise?
The confusion seems to be a relatively recent aberration. The articulation of the narrow concept of the rule of law is long-standing. It is associated with such eminent thinkers as John Locke (1632-1704), Albert Dicey (1835-1922). Bruno Leoni (1913-1967) and FA Hayek (1899-1992).
Glazebrook’s speech favours the ‘broad’ interpretation, one that looks political and activist. She wrote”
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.
In his critique in Law News, Gary Judd QC asked for clarity about what the rule of law is to mean if it is to include redress for social historical disadvantage.
And obvious problem is the political nature of this project.
The rule of law is about protecting the individual from a predatory state (or Court for that matter). Individuality is lost if the individual is judged on the basis of an assigned group membership.
For example, who has not experienced social historical disadvantage, apart of course from hard-working white men who were not abused as children? Have women, Māori, the Chinese, Asians more generally, the disabled, the mentally ill in asylums not experience it? What about those abused in institutionalised circumstances or in abused households? What about those who had poor schooling?
And what about those assigned to any such group who are doing well in life and do not see themselves as victims? What redress is due to them?
Further, who is to be made to pay for that historical redress? In June 2021 just short of 30% of those living in New Zealand were born overseas. Many more will not have any forebearers who were in New Zealand prior to 1900. What is the case for forcing them to pay redress if they disagree?
There is also the question of equity. If two individuals are in the same need, but preference is given to one because of their assigned group members, horizontal equity is violated. If preference is given to the richer one, vertical equity is violated.
The answers to all these questions are inherently political. Confidence in our Supreme Court can only be reduced if its decisions are seen to be driven by a political agenda.
It would be dreadful if our Supreme Court abandons the ‘blind justice’ application of the law to pursue a fundamentally political agenda. To do so promises to divide and polarise the community through inequitable political determinations.
Under the original concept, the rule of law requires judge to apply the law impartially. It is not their role to create new law or to pursue a partisan political agenda.
Dr Bryce Wilkinson is a Senior Fellow at The New Zealand Initiative, Director of Capital Economics, and former Director of the New Zealand Treasury. His articles can be seen HERE.
Today’s article is also motivated by concerns about erratic decision-making involving competition law. The Commerce Commission recently correctly determined that undue barriers to entry could be limiting supermarket competition.
This did not satisfy populist prejudices, in part because the Commission’s preliminary assessment did not pay adequately identify the entry barrier concern.
The Government rejected the Commission’s recommendation. Its Grocery Industry Competition Bill is populist. It addresses symptoms, not causes. The regulatory red tape will raise industry costs and consumers will likely pay higher prices than necessary even if profits are lower.
Law changes driven by populism are unpredictable. That inhibits planning and investment.
Moreover, this is not just about supermarkets. Other industry leaders in sectors such as electricity, banking, insurance and telecommunications are also vulnerable to unpredictable law changes that fly against professional advice. The Government is giving them an unnerving signal.
Admittedly, the quality of regulatory assessments can be problematic. The Commerce Commission’s responsibilities are broad. Its staff cannot hope to understand the complexities of an industry as well as those whose livelihood depends on doing so. Its conclusions can be unpredictable.
What then is the rule of law and why is it so important?
In a nutshell, the rule of law is the principle that everyone is subject to the law, including those in government, and that laws must be clear, predictable, and applied equally to all who are subject to them.
The rule of law is not the rule of an inconstant ruler or a “something must be done” parliament. Legal uncertainties stifle planning.
Nor can people transact easily if they do not even know what the law means today. As Glazebrook’s speech observed, the Supreme Court recently elevated the legal status of a Mäori customary law doctrine called tikuna.
What this means for future legal decisions seems to defy clarification. It appears that pakeha judges, at least, should not presume to decide what it means, not having a ‘lived experience’ of it.
Inadequate enforcement is another current threat to our rule of law. Too many communities are complaining that they feel unsafe. They think violence and illegality is being inadequately policed. The attacks on predominantly Indian dairy owners are particularly outrageous.
Well-known commentator, Chris Trotter, wrote in the context of an unpoliced intimidating gang invasion last year of a Christchurch hospital, that a country that does not police the law, will not be lawful for very long. Precisely.
The degree to which the rule of law, as summarised above, is under threat is illustrated by the title to Glazebrook’s speech. It is “The Rule of Law: Guiding Principle or Catchphrase”.
That something as fundamental to civil order as the rule of law could be thought to have been reduced to a mere catchphrase is breath-taking.
On examination, Glazebrook was 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.
The narrow meaning is blind as to details. For example, the law could permit slavery, without violating the narrow meaning. The US constitution originally did.
Glazebrook concludes that the rule of law “cannot be supported” if doing so means accepting a legal system that includes abhorrent laws.
But it does not mean this. Her conclusion confuses the part with the whole. The ’thin’ rule of law is a necessary condition for civil society, it is not a sufficient condition. A society without the rule of law promises to be one of arbitrary brutality.
Totalitarian governments that consistently enforce oppressive laws demonstrate that having the rule of law is insufficient in itself for the good society. Did anyone of standing ever think otherwise?
The confusion seems to be a relatively recent aberration. The articulation of the narrow concept of the rule of law is long-standing. It is associated with such eminent thinkers as John Locke (1632-1704), Albert Dicey (1835-1922). Bruno Leoni (1913-1967) and FA Hayek (1899-1992).
Glazebrook’s speech favours the ‘broad’ interpretation, one that looks political and activist. She wrote”
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.
In his critique in Law News, Gary Judd QC asked for clarity about what the rule of law is to mean if it is to include redress for social historical disadvantage.
And obvious problem is the political nature of this project.
The rule of law is about protecting the individual from a predatory state (or Court for that matter). Individuality is lost if the individual is judged on the basis of an assigned group membership.
For example, who has not experienced social historical disadvantage, apart of course from hard-working white men who were not abused as children? Have women, Māori, the Chinese, Asians more generally, the disabled, the mentally ill in asylums not experience it? What about those abused in institutionalised circumstances or in abused households? What about those who had poor schooling?
And what about those assigned to any such group who are doing well in life and do not see themselves as victims? What redress is due to them?
Further, who is to be made to pay for that historical redress? In June 2021 just short of 30% of those living in New Zealand were born overseas. Many more will not have any forebearers who were in New Zealand prior to 1900. What is the case for forcing them to pay redress if they disagree?
There is also the question of equity. If two individuals are in the same need, but preference is given to one because of their assigned group members, horizontal equity is violated. If preference is given to the richer one, vertical equity is violated.
The answers to all these questions are inherently political. Confidence in our Supreme Court can only be reduced if its decisions are seen to be driven by a political agenda.
It would be dreadful if our Supreme Court abandons the ‘blind justice’ application of the law to pursue a fundamentally political agenda. To do so promises to divide and polarise the community through inequitable political determinations.
Under the original concept, the rule of law requires judge to apply the law impartially. It is not their role to create new law or to pursue a partisan political agenda.
Dr Bryce Wilkinson is a Senior Fellow at The New Zealand Initiative, Director of Capital Economics, and former Director of the New Zealand Treasury. His articles can be seen HERE.
2 comments:
It should be noted that the NZ Supreme Court, akin to its UK counterpart, is not a constitutional court. It is unable to overrule parliamentary Acts. This makes it a very different 'Supreme Court' from that of the US. The Rule of Law in the British/NZ system demands that the Supreme Court adheres to the principle of the supremacy of Parliament. They must apply an Act as Parliament intended it to be applied, whatever their feelings about it.
Precisely, Barend. The thought that Ms Glazebrook is any more entitled to decide what should or should not be our law than Parliament or a majority of voters is abhorrent. And in a Surpeme Court of five it’s actually any three of them. Their job is to apply Acts which Parliament has approved, no more, no less.
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