Gary Judd KC: The Humpty Dumpty approach to the rule of law

Decolonisation and more

This article was published by the Auckland District Law Society’s LawNews on 31 March 2023. It concerns Justice Glazebrook’s views about the rule of law and her apparent desire for the indigenous people to “take back power and control.” I am about to publish “Tikanga is not law #2,” which refers to this article.

A search of the final report of the Independent Review, Regulating Lawyers in Aotearoa New Zealand reveals that "rule of law" appears 58 times. Notwithstanding the frequent use of the term and the report's recommendation that upholding the rule of law continue to be a fundamental obligation of lawyers and a statutory objective of the new independent regulator, the only time the report touches on its meaning is a brief and incomplete if not inaccurate, description in the Minority view of Professor Jacinta Ruru.

Professor Ruru states that "The rule of law is alive to the unique circumstances of Aotearoa New Zealand. It requires that all people are bound to follow the law." In footnote 191, to the first sentence, she references a 2021 article by Justice Susan Glazebrook, "The Rule of Law: Guiding Principle or Catchphrase?"[1] as "a discussion about the rule of law in the unique circumstances of Aotearoa New Zealand" (report, p 106).

Many of those discussing the rule of law stamp it with the meaning they wish it to have because, as Justice Glazebrook notes,[2] the concept has rhetorical weight in the public consciousness. But, giving it the meaning the rhetorician wishes it to have is Humpty Dumpty’s approach:

‘When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less. ' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master — that's all.”[3]

Humpty Dumpty's approach turns the rule of law into a "catchphrase", putting into the concept whatever the speaker wants. The concept can lose its meaning. Confucius said, “when words lose their meaning, people lose their freedom.” Whilst that may be a bit of a stretch as a generalisation, it does have implications for the rule of law as the rule seeks, amongst other things, to secure freedom from oppression.

Justice Glazebrook concludes her article in this way:

So what does all this say about Aotearoa and the rule of law? I would suggest that, until we complete the process of decolonisation, [fn] 135 the rule of law can only be considered a work in progress. The new place of the Treaty and tikanga in the law is a start. There are of course other initiatives underway, including within and outside the courts, but these are beyond the scope of this paper.

And as an overall conclusion on the rule of law generally, I finish where I began with my title. The rule of law is a guiding principle as long as it includes human rights, access to justice, and I would add, Redress for historical disadvantage. If that is the case, it is also an appropriate catch cry for a better and more just world.

Unless Humpty Dumpty’s approach is adopted, there must be distillation of what the rule is, for only then would it be possible to ascertain whether redress for historical disadvantage is within it. It cannot be within it just because a proponent of a viewpoint wants it to be.

It is of concern that Her Honour says that she won't accept the rule of law as even a guiding principle unless redress for historical disadvantage is part of it.

Part of the problem may be that the title and the article itself are based on a juxtaposition of guiding principle and catchphrase. This is a false dichotomy because the rule of law is far more than just a guiding principle. It is a fundamental constitutional concept that underpins the legal and political systems of many countries around the world. It is a fundamental aspect of modern legal and political systems that helps to maintain order, protect individual rights, and ensure that justice is applied fairly and consistently.

New Zealand's commitment to the rule of law is part of New Zealand's constitution, as recognised by the Senior Courts Act 2016's repetition of the Supreme Court Act’s acknowledgement of "New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament”[4].

Then Chief Justice Dame Sian Elias, in a 2015 address to the Otago University Faculty of Law, "Judgery and the Rule of Law," stated (page 8) that "The rule of law is identified in the Supreme Court Act as being, with the sovereignty of Parliament (with which it is in inevitable tension) one of the twin principles of the New Zealand constitution."[5]

When Dame Sian gave that address the Judicature Modernisation Bill was before Parliament, and she recorded the Judges' concern that s 3 of the Supreme Court Act might not be carried forward into the replacement legislation but, of course, it was -- no doubt in large part because of the Judges' views. It is very disappointing to see one of today's senior judges relegating the rule of law to a guiding principle, and not even that unless it includes redress for historical disadvantage.

There are bedrock principles upon which the rule of law is based. It grew out of the need to curtail monarchical political power, and rests on twin states that "all men are naturally in," first:

a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other men;

and secondly:

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection …."[6]

The "bounds of the law of nature" is explained:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….[7]

These words of John Locke, written at the time of the Glorious Revolution (1688-1689) when the Parliament of England asserted supremacy over the King, denying to him the pretended right to rule over others based on who his ancestors were, have been the philosophical foundation for the principles of equality under the law as subsequently developed, particularly by A.V. Dicey, who was the first to use “the rule of law” in a systematic way although it had appeared occasionally in writings from about 1500.[8]

Dicey's three meanings were: absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, equality before the law, and the constitution being “the result of the ordinary law of the land."

As Philip Joseph has pointed out, equality before the law "obtains in principle if the laws applying to each status [e.g., welfare beneficiaries, infants and adults, landlords and tenants, employees and employers, company directors and shareholders, and consumers and manufacturers] are capable of applying equally to all, depending on the life choices individuals make.”[9]

Dame Sian, in the Judgery article (p8) made this important point regarding New Zealand:

Although the phrase, “rule of law” does not appear in the Bill of Rights Act, the White Paper which preceded it explains the omission from the statement of rights of a right to equality before the law as being unnecessary because equal treatment is part of the rule of law. The Bill of Rights Act, which explicitly preserves all other freedoms and liberties, was therefore enacted on the premise of the rule of law.

When Dicey said the constitution was the result of the ordinary law of the land, he was describing the nature of the English constitution, whilst recognising that other countries had written constitutions which might afford protection for the rights of individuals as effective as the protection existing in England. In doing so, he makes this very important point:

The “rule of law,” lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts….[10]

The words I have emphasised take us back to Locke’s identification of the natural states of freedom and equality. Men are naturally free (subject to the "bounds of the law of nature") and politically equal which is to say that none has natural power or jurisdiction over another.

These principles have been developed without changing them. In Locke's day, "man" or "men" meant that literally, with qualifications even as to which men could qualify as men. Women were excluded. Slaves were excluded.

The conception today is that all people are naturally free and equal, and that each and every person has individual rights.

Whilst a concept such as the rule of law can be expanded to bring more individuals within it, as human knowledge and understanding grows, it ought not to be expanded to encompass different concepts, and certainly it cannot incorporate contradictory concepts.

This does not mean that there are no other worthy and important principles. It simply means that they are not part of the rule of law, and need to be justified in some other way, if they can be. If a principle contradicts the rule of law, it is likely to be invalid. In the New Zealand context, it also means it is likely to be unconstitutional.

We can now return to "the process of decolonisation" and to the idea of redressing historical disadvantage being part of the rule of law. Even if redressing historical disadvantage is a worthy and important principle, it is not per se part of the rule of law. It is a wide and imprecise description. Judgements can be made only for specific cases.

For example, the Waitangi Tribunal system established by the Treaty of Waitangi Act 1975 established a lawful system for holding the Crown to account for actions inconsistent with the principles of the Treaty. The system is consistent with the rule of law. It is in principle capable of applying to all New Zealanders, but in fact can apply only to those having the legal status of having a requisite connection to the Treaty.

However, the means chosen to achieve redress for historical disadvantage may be in breach of the rule of law.

If I correctly understand the passages from the article set out above, decolonization is the chosen means. We need to consider what decolonisation means and, when we have done that, we need to consider whether it is consistent with the rule of law.

It may have been noticed that I kept the footnote reference 135 after "the process of decolonisation." Footnote 135 states:

See Williams, above n 130, for a discussion of decolonisation. It has been suggested that at a fundamental level, decolonisation involves the taking back by indigenous people of power and control: Eesvan Krishan “Decolonising the Common Law: Reflections on Meaning and Method” (2020) 26 Auckland U L Rev 37 at 39 citing Moana Jackson “Where to next? Decolonisation and the stories in the land” in Rebecca Kiddle and others Imagining Decolonisation (Bridget Williams Books, Wellington, 2020) 133 at 135.

Footnote 130 is:

The indigenising of legal education and our universities will have a major part to play in decolonisation: see generally Joe Williams “Decolonising the law in Aotearoa: Can we start with the law schools?” (FW Guest Memorial Lecture 2021, University of Otago, Otago, 22 April 2021). A first-of-its-kind degree program which aims to provide law students a lived experience in indigenous law is University of Victoria (Canada)’s Joint Indigenous Law Degree which combines a study of Canadian common law with the laws of Indigenous peoples: University of Victoria (Canada) “Joint Degree Program in Canadian Common law and Indigenous Legal Orders (JD/JID)”. The program combines classroom learning with field studies conducted in collaboration with indigenous communities.

What are we to make of this? Her Honour says, "until we complete the process of decolonisation." Who are the "we" who, apparently, are in the process of completing the process of decolonisation? Her Honour adds that "The new place of the Treaty and tikanga in the law is a start," and that “There are of course other initiatives underway, including within and outside the courts, but these are beyond the scope of this paper.”

Eesvan Krishan, in the article Her Honour cites states, on p 38, “It is a mark of some progress in our legal system that the possibility of tikanga being prayed in aid of Mr Ellis, a Pākehā, was first raised by a Pākehā judge, Glazebrook J.”

It seems Justice Glazebrook may consider the courts to be one part of a collective embarked on a process of decolonization.

In footnote 135, Her Honour says it has been suggested that at a fundamental level, decolonisation involves indigenous people taking back power and control. Are the courts embarking on a process of enabling indigenous people to take power and control?

The "indigenous people" are persons separated out from other members of the community because they are descendants of those who were here when, in the late eighteenth century, others started to come.

Taking back means taking. The “back” part is a justification: it means, it is okay to take power and control because we had it once, it was taken away from us and we are taking it back.

It’s like King Charles III saying he should be able to exercise power and control, because James II had power and control until the English Parliamentarians forced him to abdicate and established a constitutional monarchy in 1688-1689.

Equality in the rule of law context means that no one has any natural right to exercise power or control over others, as the kings of England claimed to be their right before the Glorious Revolution put an end to it. It also means equal treatment under the law. There can be no doubt that the taking of power and control by one section of the community is inconsistent with the rule of law.

Justice Glazebrook appears to be accepting as a foregone conclusion, and something she supports, that it is only a matter of time before the "indigenous people" “[take] power and control".

This is in the nature of what England got rid of with Magna Carta and the Petition of Right, then, in a great stride forward, the Glorious Revolution. It would be a giant step backward to the days before the Enlightenment.

The twin of the rule of law constitutional principle is the sovereignty of Parliament. This means, of course, that Parliament could legislate to give power and control to a sectional group. Indeed, it already has in selected areas with the Water Services Entities Act 2021 and the Pae Ora (Healthy Futures) Act 2022, for example.

The rule of law decrees 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. We need our judges to be standing up for that fundamental principle. Indeed it is their duty as the rule of law is one of “the twin principles of the New Zealand constitution."

Dame Sian also noted (p 9)

It is true that the content of the rule of law remains uncertain and is contestable. Its central plank is the principle of legality – that no one or no body is above the law and that fundamental values and rights can be trenched on only by unmistakeable legislative intent.

We need the Judges to say so when Parliament trenches on the rule of law, and to minimize the violation to the greatest extent possible within the confines permitted by the clear words of the legislation.

We also need the New Zealand Law Society to be standing up for it. As lawyers already have the fundamental obligation to uphold the rule of law and it is proposed not only that this should continue but also that the new regulator should also be subjected to that obligation, a good start would be for the Society to identify what it means by the rule of law.

I conclude with a further quote from Dame Sian’s Judgery article (pp 10-11).

The rule of law can be imperceptibly eroded unthinkingly if it is not valued by our society….

The challenges for judging and for the rule of law in New Zealand in the 21st century are to ensure that access to independent courts and the rule of law continue to be valued as constitutional fundamentals by the community. That requires understanding of our constitutional and legal history. This is a year of anniversaries of importance to law. It is 175 years since the signing of the Treaty of Waitangi, by which constitutional government was established and the enacted and common law of England, arrived on these shores so far as appropriate to the circumstances of New Zealand (an important qualification). With the Treaty, Magna Carta, 800 years old entered New Zealand law. These are points of reference we need to talk more about. It is not fanciful to see in Magna Carta ideas central to the rule of law and which have influenced our constitutional history ever since. The 800th anniversary of Magna Carta may be a good time to take stock. Magna Carta confronted the arbitrary power of the King. Over the following centuries the ideas it launched brought the King under the law, as Bracton and Coke had insisted he was. The King, they said was made by the law. And, as James I had the wit to see, the implication of being made by the law was that the King was subject to the law.

We must all stand up for the rule of law and guard against its erosion.

[1] https://www.courtsofnz.govt.nz/assets/speechpapers/Rule-of-law-Guiding-Principle-or-Catchphrase.pdf

[2] Page 14

[3] Lewis Carroll, Through the looking Glass.

[4] Senior Courts Act 2016, s 3(2).

[5] JudgmentTemplate (courtsofnz.govt.nz)

[6] John Locke, Two Treatises of Government, Book 2, §4.

[7] Ibid., in §6

[8] Introduction to the Study of the Law of the Constitution, first published in 1885; the last edition prepared by Dicey himself was the eighth published in 1915.

[9] Joseph on Constitutional and Administrative Law, 5th edition, pp 221-222.

[10] Dicey, A. V.. Introduction to the Study of the Law of the Constitution. Liberty Fund, Inc.. Kindle Edition, based on the eighth edition, Location 4287 of 12,561.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.