Something happened in law schools in the closing decades of the twentieth century. It did not make the headlines. But it shaped the thinking of a generation of lawyers and judges more profoundly than almost any statute or judgment.
Legal realism – the view that judges make choices rather than merely apply rules – merged with a broader current of post-modern thought flowing through the humanities and social sciences. The conclusion that seemed to follow was arresting: legal categories are not neutral; the distinction between legitimate and activist judging is itself a value judgment; and those who invoke legal orthodoxy are defending, whether they know it or not, the interests of the powerful.
Most lawyers who studied in the last four decades encountered some version of this argument. Few were persuaded by the extreme form. But the moderate version – the idea that law is always and inevitably political, that judges necessarily bring their values to their decisions, that there is no neutral vantage point from which to evaluate judicial reasoning – has become the background assumption of much legal education, and increasingly, of judicial reasoning itself.
That assumption is what this column tests.
The jurisprudential challenge to this series – that the orthodox/activist distinction is itself just a value judgment, no more authoritative than the judicial preferences it claims to condemn – turns out to have a precise intellectual history. Tracing it helps to see not just where it came from, but where it goes wrong – in ways that matter not just for this debate but for the rule of law and the law’s democratic legitimacy.
Legal realism began as a modest and largely unexceptional empirical claim. Oliver Wendell Holmes, writing in his 1881 book, The Common Law, observed that the life of the law had not been logic but experience – that judges made choices, and that pretending otherwise was intellectually dishonest.
Karl Llewellyn, in Some Realism About Realism, and Jerome Frank, in Law and the Modern Mind, developed the insight through the 1920s and 1930s: legal rules underdetermined outcomes; judicial personality and background mattered; the gap between doctrine and decision was real.
That insight was directed at a specific pathology. In the early twentieth century, American judges struck down progressive labour legislation – minimum wage laws, limits on working hours – by claiming that such laws violated workers’ freedom of contract.
The reasoning appeared principled. But it was, in truth, policy preference dressed as legal logic: judges imposing their economic views through the language of rights. The realist critique was salutary. It exposed the pretence. As this series has previously noted, conservative judicial activism – judges using legal form to entrench their own preferences – offers a cautionary tale for those tempted by judicial power in any direction.
But somewhere between Holmes and the contemporary law school, legal realism’s modest empirical claim that judges made choices was absorbed into something more radical. The critical legal studies movement pushed the argument to its limit, claiming that legal doctrine is ideology; the orthodox/activist distinction is a power-laden construct; those who define legitimacy define it in their own interests. Roberto Unger, in Law in Modern Society, and Duncan Kennedy, in his essay “Form and Substance in Private Law Adjudication,” gave the argument its most influential formulations. Both were widely taught in New Zealand law schools by the early 1980s.
This is legal realism absorbed into post-modernism – the same movement that produced, in humanities departments, the view that the literary canon is merely the taste of the dominant culture, and in social sciences, the claim that objectivity itself is a myth. On this view, there are no truly legal answers – only political ones clothed in legal language.
But the argument proves too much. If all legal standards are merely expressions of power, there is no basis for criticising any judicial decision – including the ones legal realists presumably find objectionable. The critique dissolves the very ground on which it stands.
The common law’s values are not a menu
The legal realist challenge gets one thing genuinely right: legal categories are not value-neutral. Emeritus Professor Peter Watts KC shows this clearly in his landmark Taxonomy in Private Law, drawing on the work of Oxford theorist Peter Birks.
The case for a modest, disciplined common law rests on values: legitimising the authority of unelected judges, providing universal rules applicable to all and preserving individual freedom from arbitrary power.
But the inference the legal realist draws does not follow. The question is not which values can be publicly justified, as if the common law’s values were one option among several that courts might select from some neutral vantage point. The common law’s values are what the common law is – unless and until Parliament changes it.
That is not a preference. It is a constitutional fact. This is a positivist claim – the claim that the law is what it is, not what it ought to be, and that changing it requires the authorised institutions, not judicial preference.
Courts did not ‘choose’ these values in the sense of selecting them from a menu. They found them already there – embedded in the structure of legal relationships, in centuries of decided cases, in the customary practice on which society has ordered its affairs. As Watts observes (drawing on Birks), judges are masters and servants of a complex system of reasoning, not its authors.
When courts reshape those values to reflect contemporary preferences, they are not selecting a different taxonomy from the available options. They are expropriating something that was never theirs to change.
And in New Zealand, the point is sharper still. As Watts has demonstrated, courts derive their very authority to apply and develop the common law from Parliament’s legislation – which means the legal realist who argues that courts may revise the common law’s values is arguing, in this country, that courts may revise the terms of their own parliamentary mandate.
That is a constitutional question, not a philosophical one – and the answer is no.
That is the proper reading of New Zealand’s positive law, as Watts, Jeffrey Goldsworthy – the leading common law scholar of parliamentary sovereignty – and Oxford’s John Finnis have each argued from different angles. It is not an indisputable sociological datum, and a legal realist is entitled to contest it.
But contesting it requires engaging with the statutory and constitutional evidence – not simply declaring that all law is just power in disguise.
Two charges, one answer
Two further versions of the challenge are sometimes pressed. The first holds that the positivist account is essentialist – that is, it treats legal categories as having fixed, necessary content – and in particular treats the common law as necessarily embodying certain values: certainty, voluntary obligation, protection of persons and property, confinement of judicial discretion.
The second invokes the naturalistic fallacy – the logical error of inferring what ought to be from what is: the fact that the common law embodies these values does not mean it ought to.
Neither charge lands. The argument here is not that the common law must embody these values . It is that it does – accumulated through centuries of contingent institutional practice. No taxonomy of legal categories is value-free, and this one is no exception. But the limits on judicial authority it describes come from within the legal system itself, not from contested moral preferences imposed from outside. That the values embedded in the common law are contingent rather than necessary is not a reason for courts to revise them.
And the naturalistic fallacy charge, correctly understood, points in the same direction. The argument is not a claim that the common law’s values are right because they happen to be there. It is a positivist claim about constitutional authority – about who is authorised to change them. Parliament is. Courts are not.
Judges who reshape the common law to match their normative preferences face exactly the same questions. Why should anyone accept those preferences as objective yardsticks? A court that uses its authority to revise the values embedded in the system Parliament authorised it to apply is not exercising a competing normative vision. It is acting outside its own constitutional mandate.
This is not to say that no normative case can be made for these values. It can – and Watts makes it at length. The values of certainty, voluntary obligation, and the confinement of judicial discretion are not merely constitutional facts. They are also the conditions of a free and ordered society.
But normative arguments about why the arrangement is desirable are secondary. They support the structure – they do not constitute it. The primary claim is positivist: these values are what the law is, and Parliament – not the court – is the authorised agent of change.
Three cases, one test
If the legal realist objection were correct – if all legal standards were simply the expression of whoever holds power – then the distinction between legitimate and illegitimate judicial reasoning would be arbitrary. There would be no principled difference between a court that develops the common law within its existing commitments and one that imports new sources of law from outside. The distinction would be, as the post-modernists say, merely ideological.
But every competent lawyer can draw the distinction. That capacity is itself a refutation of the strong realist claim – for if legal standards were merely power, no such distinction could be drawn reliably. As last month’s column demonstrated, Donoghue v Stevenson [1932] AC 562, Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394, and Ellis v R (Continuance) [2022] NZSC 114 represent three qualitatively distinct kinds of judicial act.
Donoghue drew a general principle already latent in existing instances – induction within the inherited framework. Bowen crossed a boundary that framework had consistently maintained, substituting policy preference for principled limit – with consequences documented at length in this series. Ellis did something different again: it purported to alter the statutory foundations of the court’s own jurisdiction, installing tikanga as a source of law applicable to any legal question without parliamentary mandate and without any test for when a custom or practice counts as law.
The progression from legitimate development to boundary crossing to constitutional usurpation can be identified reliably. The strong realist claim says there is nothing there to track. The three cases say otherwise.
What the objection cannot do
The legal realist objection, taken seriously, does not vindicate judicial activism. It creates a dilemma from which there is no exit.
One horn: if the objection concedes – as intellectual honesty requires – that the common law’s values are not a menu for judicial selection but a constitutional inheritance belonging to Parliament to change, then the only remaining question is has the Supreme Court in fact departed from those values? That is a question about doctrine, not philosophical foundations. And it is one this series has answered in detail – in Ellis, in Fitzgerald, in Bowen, in Climate Clinic.
The other horn: if the critic retreats to the strong claim – that all legal standards are merely power – the argument becomes self-defeating. A critique that dissolves all legal standards dissolves the ground on which the critic stands. It cannot be deployed to vindicate one set of judicial preferences over another without immediately undermining itself.
And it carries a further cost: the claim that all legal standards are merely power does not just undermine the case against judicial activism. It undermines the possibility of constitutional government altogether. The post-modernist critique, if it proves anything, proves too much.
Those who invoke the customary character of the common law as a licence for judicial creativity face an awkward irony. Customary law evolves through practice, through the accumulated ordering of affairs in reliance on settled rules, through recognition of what communities have actually done. It does not evolve through judicial declaration.
Two further escape routes are sometimes attempted, and neither leads anywhere. The first is to attack the normative case – to dispute whether the common law’s values really do produce free and ordered societies. That argument can be had. But winning it does not touch the primary claim. The constitutional question of who is authorised to change the law is entirely independent of whether the values being changed are good ones.
The second is to contest the positivist account itself – to argue that Watts, Goldsworthy and Finnis have misread New Zealand’s constitutional arrangements. That argument is at least on the right terrain. But it has not been made. Holmes was right that judges make choices. He was not right – and did not claim – that choices are all there is. The positivist claim has to be met on its own terms. It has not been.
The common law’s values – certainty, voluntary obligation, protection of persons and property, confinement of judicial discretion – are not value-free. This column has never claimed otherwise. But conceding that point does not licence judicial revision. The values embedded in the common law are Parliament’s to change – and courts which change them without democratic authority are not updating an evolving tradition.
They are breaking faith with the constitutional order.
The self-defeating nature of the strong realist argument is cold comfort if judges act on it anyway. When legal realism becomes not just an academic position but a judicial disposition – when the insight that judges make choices hardens into the conclusion that all legal standards are merely power, and judges begin substituting their own preferences for Parliament’s commands – the rule of law does not bend. It breaks.
That is what is at stake in this debate, and why it matters beyond the law schools where it began.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was sourced HERE
That assumption is what this column tests.
The jurisprudential challenge to this series – that the orthodox/activist distinction is itself just a value judgment, no more authoritative than the judicial preferences it claims to condemn – turns out to have a precise intellectual history. Tracing it helps to see not just where it came from, but where it goes wrong – in ways that matter not just for this debate but for the rule of law and the law’s democratic legitimacy.
Legal realism began as a modest and largely unexceptional empirical claim. Oliver Wendell Holmes, writing in his 1881 book, The Common Law, observed that the life of the law had not been logic but experience – that judges made choices, and that pretending otherwise was intellectually dishonest.
Karl Llewellyn, in Some Realism About Realism, and Jerome Frank, in Law and the Modern Mind, developed the insight through the 1920s and 1930s: legal rules underdetermined outcomes; judicial personality and background mattered; the gap between doctrine and decision was real.
That insight was directed at a specific pathology. In the early twentieth century, American judges struck down progressive labour legislation – minimum wage laws, limits on working hours – by claiming that such laws violated workers’ freedom of contract.
The reasoning appeared principled. But it was, in truth, policy preference dressed as legal logic: judges imposing their economic views through the language of rights. The realist critique was salutary. It exposed the pretence. As this series has previously noted, conservative judicial activism – judges using legal form to entrench their own preferences – offers a cautionary tale for those tempted by judicial power in any direction.
But somewhere between Holmes and the contemporary law school, legal realism’s modest empirical claim that judges made choices was absorbed into something more radical. The critical legal studies movement pushed the argument to its limit, claiming that legal doctrine is ideology; the orthodox/activist distinction is a power-laden construct; those who define legitimacy define it in their own interests. Roberto Unger, in Law in Modern Society, and Duncan Kennedy, in his essay “Form and Substance in Private Law Adjudication,” gave the argument its most influential formulations. Both were widely taught in New Zealand law schools by the early 1980s.
This is legal realism absorbed into post-modernism – the same movement that produced, in humanities departments, the view that the literary canon is merely the taste of the dominant culture, and in social sciences, the claim that objectivity itself is a myth. On this view, there are no truly legal answers – only political ones clothed in legal language.
But the argument proves too much. If all legal standards are merely expressions of power, there is no basis for criticising any judicial decision – including the ones legal realists presumably find objectionable. The critique dissolves the very ground on which it stands.
The common law’s values are not a menu
The legal realist challenge gets one thing genuinely right: legal categories are not value-neutral. Emeritus Professor Peter Watts KC shows this clearly in his landmark Taxonomy in Private Law, drawing on the work of Oxford theorist Peter Birks.
The case for a modest, disciplined common law rests on values: legitimising the authority of unelected judges, providing universal rules applicable to all and preserving individual freedom from arbitrary power.
But the inference the legal realist draws does not follow. The question is not which values can be publicly justified, as if the common law’s values were one option among several that courts might select from some neutral vantage point. The common law’s values are what the common law is – unless and until Parliament changes it.
That is not a preference. It is a constitutional fact. This is a positivist claim – the claim that the law is what it is, not what it ought to be, and that changing it requires the authorised institutions, not judicial preference.
Courts did not ‘choose’ these values in the sense of selecting them from a menu. They found them already there – embedded in the structure of legal relationships, in centuries of decided cases, in the customary practice on which society has ordered its affairs. As Watts observes (drawing on Birks), judges are masters and servants of a complex system of reasoning, not its authors.
When courts reshape those values to reflect contemporary preferences, they are not selecting a different taxonomy from the available options. They are expropriating something that was never theirs to change.
And in New Zealand, the point is sharper still. As Watts has demonstrated, courts derive their very authority to apply and develop the common law from Parliament’s legislation – which means the legal realist who argues that courts may revise the common law’s values is arguing, in this country, that courts may revise the terms of their own parliamentary mandate.
That is a constitutional question, not a philosophical one – and the answer is no.
That is the proper reading of New Zealand’s positive law, as Watts, Jeffrey Goldsworthy – the leading common law scholar of parliamentary sovereignty – and Oxford’s John Finnis have each argued from different angles. It is not an indisputable sociological datum, and a legal realist is entitled to contest it.
But contesting it requires engaging with the statutory and constitutional evidence – not simply declaring that all law is just power in disguise.
Two charges, one answer
Two further versions of the challenge are sometimes pressed. The first holds that the positivist account is essentialist – that is, it treats legal categories as having fixed, necessary content – and in particular treats the common law as necessarily embodying certain values: certainty, voluntary obligation, protection of persons and property, confinement of judicial discretion.
The second invokes the naturalistic fallacy – the logical error of inferring what ought to be from what is: the fact that the common law embodies these values does not mean it ought to.
Neither charge lands. The argument here is not that the common law must embody these values . It is that it does – accumulated through centuries of contingent institutional practice. No taxonomy of legal categories is value-free, and this one is no exception. But the limits on judicial authority it describes come from within the legal system itself, not from contested moral preferences imposed from outside. That the values embedded in the common law are contingent rather than necessary is not a reason for courts to revise them.
And the naturalistic fallacy charge, correctly understood, points in the same direction. The argument is not a claim that the common law’s values are right because they happen to be there. It is a positivist claim about constitutional authority – about who is authorised to change them. Parliament is. Courts are not.
Judges who reshape the common law to match their normative preferences face exactly the same questions. Why should anyone accept those preferences as objective yardsticks? A court that uses its authority to revise the values embedded in the system Parliament authorised it to apply is not exercising a competing normative vision. It is acting outside its own constitutional mandate.
This is not to say that no normative case can be made for these values. It can – and Watts makes it at length. The values of certainty, voluntary obligation, and the confinement of judicial discretion are not merely constitutional facts. They are also the conditions of a free and ordered society.
But normative arguments about why the arrangement is desirable are secondary. They support the structure – they do not constitute it. The primary claim is positivist: these values are what the law is, and Parliament – not the court – is the authorised agent of change.
Three cases, one test
If the legal realist objection were correct – if all legal standards were simply the expression of whoever holds power – then the distinction between legitimate and illegitimate judicial reasoning would be arbitrary. There would be no principled difference between a court that develops the common law within its existing commitments and one that imports new sources of law from outside. The distinction would be, as the post-modernists say, merely ideological.
But every competent lawyer can draw the distinction. That capacity is itself a refutation of the strong realist claim – for if legal standards were merely power, no such distinction could be drawn reliably. As last month’s column demonstrated, Donoghue v Stevenson [1932] AC 562, Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394, and Ellis v R (Continuance) [2022] NZSC 114 represent three qualitatively distinct kinds of judicial act.
Donoghue drew a general principle already latent in existing instances – induction within the inherited framework. Bowen crossed a boundary that framework had consistently maintained, substituting policy preference for principled limit – with consequences documented at length in this series. Ellis did something different again: it purported to alter the statutory foundations of the court’s own jurisdiction, installing tikanga as a source of law applicable to any legal question without parliamentary mandate and without any test for when a custom or practice counts as law.
The progression from legitimate development to boundary crossing to constitutional usurpation can be identified reliably. The strong realist claim says there is nothing there to track. The three cases say otherwise.
What the objection cannot do
The legal realist objection, taken seriously, does not vindicate judicial activism. It creates a dilemma from which there is no exit.
One horn: if the objection concedes – as intellectual honesty requires – that the common law’s values are not a menu for judicial selection but a constitutional inheritance belonging to Parliament to change, then the only remaining question is has the Supreme Court in fact departed from those values? That is a question about doctrine, not philosophical foundations. And it is one this series has answered in detail – in Ellis, in Fitzgerald, in Bowen, in Climate Clinic.
The other horn: if the critic retreats to the strong claim – that all legal standards are merely power – the argument becomes self-defeating. A critique that dissolves all legal standards dissolves the ground on which the critic stands. It cannot be deployed to vindicate one set of judicial preferences over another without immediately undermining itself.
And it carries a further cost: the claim that all legal standards are merely power does not just undermine the case against judicial activism. It undermines the possibility of constitutional government altogether. The post-modernist critique, if it proves anything, proves too much.
Those who invoke the customary character of the common law as a licence for judicial creativity face an awkward irony. Customary law evolves through practice, through the accumulated ordering of affairs in reliance on settled rules, through recognition of what communities have actually done. It does not evolve through judicial declaration.
Two further escape routes are sometimes attempted, and neither leads anywhere. The first is to attack the normative case – to dispute whether the common law’s values really do produce free and ordered societies. That argument can be had. But winning it does not touch the primary claim. The constitutional question of who is authorised to change the law is entirely independent of whether the values being changed are good ones.
The second is to contest the positivist account itself – to argue that Watts, Goldsworthy and Finnis have misread New Zealand’s constitutional arrangements. That argument is at least on the right terrain. But it has not been made. Holmes was right that judges make choices. He was not right – and did not claim – that choices are all there is. The positivist claim has to be met on its own terms. It has not been.
The common law’s values – certainty, voluntary obligation, protection of persons and property, confinement of judicial discretion – are not value-free. This column has never claimed otherwise. But conceding that point does not licence judicial revision. The values embedded in the common law are Parliament’s to change – and courts which change them without democratic authority are not updating an evolving tradition.
They are breaking faith with the constitutional order.
The self-defeating nature of the strong realist argument is cold comfort if judges act on it anyway. When legal realism becomes not just an academic position but a judicial disposition – when the insight that judges make choices hardens into the conclusion that all legal standards are merely power, and judges begin substituting their own preferences for Parliament’s commands – the rule of law does not bend. It breaks.
That is what is at stake in this debate, and why it matters beyond the law schools where it began.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was sourced HERE
No comments:
Post a Comment
Thank you for joining the discussion. Breaking Views welcomes respectful contributions that enrich the debate. Please ensure your comments are not defamatory, derogatory or disruptive. We appreciate your cooperation.