Jagose gave a reasonably relaxed speech in July 2026 at a breakfast organized by The Law Association and which was reported in LawNews. I wrote a critique of that speech which was also published in Law News.
Una Jagose
Adams delivered a formal paper on 3 September 2026 to the Legal Research Foundation entitled “Black Letter Law: The Orthodox Methodology of the Crown”.
Both speeches are part of a developing constitutional discussion. They deal with the nature of law, judicial power and its scope, the authority of Parliament and the role of constitutional principle in New Zealand.
Both speakers operate within the same constitutional tradition. Both speakers profess adherence to the concept of Parliamentary supremacy. However they diverge in their respective approaches to the rule of law. They differ on issues such as the function of the court and constitutional limits. Their approaches to the issue of tikanga and its place in the law differ, along with the development of legal doctrine.
The difference in not just about doctrine. It is about what could be called constitutional temperament. Jagose uses the language of constitutional culture, civic legitimacy, dialogue and evolving constitutional values. On the other hand, Adams focuses on legal methodology, institutional restraint, textual fidelity and orthodox constitutional structure.
The two differing perspectives demonstrate a developing fault line within New Zealand public law – a fault line that has been the subject of articles by Jack Hodder KC, Peter Watts KC and Roger Partridge, chairman of the New Zealand Initiative.
Areas of agreement
Although there may be an initial perception that the speeches demonstrate different constitutional theories, they nevertheless share a broad common foundation.
Both consider parliamentary supremacy as a basic constitutional principle. Jagose, for example, explicitly describes Parliament as supreme within New Zealand’s constitutional arrangements. Adams affirms parliamentary sovereignty as one of the two foundations of the constitutional order.
Neither suggests nor advocates judicial supremacy over Parliament.
The principle of the separation of powers is common to both, as is the importance of institutional boundaries. Jagose states that all three branches of government derive legitimacy from the people and that constitutional health depends upon maintaining the independence of those branches.
Adams suggests that the role of the Solicitor-General sits between Parliament and the judiciary while emphasising the distinct constitutional functions of each element of government.
Anna Adams
Both Jagose and Adams defend the principle of judicial independence and neither considers an independent judiciary as hostile to democratic government. Jagose explicitly rejected the suggestion that judicial independence threatens Parliament. She suggests that in fact it keeps power within lawful bounds. Adams stresses likewise that the courts must remain free to rule against the Crown according to the law.
The rule of law is valued by both. Although they define it differently, both consider that the rule of law is central to constitutional legitimacy and public confidence.
This element of public trust and confidence in institutions is common to both. Jagose raises specific concerns about declining confidence in government and democratic institutions. Adams is concerned about a different problem – that of unpredictability in the law and instability in legal doctrine. But each sees constitutional confidence as requiring maintenance.
What is the rule of law?
Adams and Jagose differ on the meaning of the rule of law.
Jagose aligns herself with what is called the “thick” conception of the rule of law. This was described in a 2021 lecture by Justice Susan Glazebrook as a substantive approach to the rule of law which goes beyond the basic, procedural requirements of lawmaking and enforcement.
While the “thin” (formal) view focuses on laws being clear, public, non-retrospective and equally applied –without judging their content – the “thick” approach incorporates these formal requirements but adds further substantive elements.
The thick conception requires that laws should be made and administered within a democratic framework; that the legal system must recognise and protect fundamental human rights; that the courts must be impartial and free from external influence and that individuals must have genuine access to legal remedies and the courts.
None of this is objectionable until it is put into action. But the theory goes further. A regime or legal system that violates fundamental rights cannot be said to uphold the rule of law, even if it formally complies with legal procedures. The thick approach thus treats the rule of law as a guiding principle for justice, not just a procedural standard, and insists that human rights and substantive justice are integral to its meaning.
Jagose accepts these propositions. For her, legal legitimacy goes beyond procedures and formal legality. A plethora of other considerations may be in play, such as constitutional values, rights, participation, dialogue between institutions and substantive limitations upon public power which all form part of the constitutional framework. She repeatedly refers to constitutional values, constitutional legitimacy and deep constitutional norms as factors which influence or constrain the exercise of power.
This approach is rejected by Adams. Her paper defends the “thin” or formal conception of the rule of law. For her, the rule of law concerns elements of clarity, stability, publicity, predictability, procedural fairness and equal application.
It does not prescribe substantive outcomes or empower judges to identify higher values against which legislation should be measured.
In Adams’ framework, the moment courts begin defining substantive constitutional entitlements, they risk entering the realm that properly belongs to Parliament.
Parliamentary supremacy
This is another area of difference.
For Jagose, parliamentary supremacy exists but it operates within a wider constitutional environment. She cites Sir Michael Cullen’s view that Parliament’s authority is “maintained” and “moderated” by constitutional norms and conventions.
One challenging question posed by Jagose was whether or not Parliament could legitimately define the meaning of the Treaty of Waitangi without Māori participation. In such a circumstance, she suggests there would be constitutional limits to legitimacy.
Adams adopts an opposite approach. She insists that major public policy choices lie within Parliament’s realm. Parliament has democratic legitimacy. It has institutional competence. The courts, she argues, cannot relitigate policy choices that have been made by elected representatives.
Thus, for Adams, constitutional limits are procedural and institutional whereas for Jagose they may also be normative and substantive.
Judicial power and constitutional dialogue
Interaction between the courts and Parliament is seen by Jagose as a healthy constitutional dialogue – a collaborative approach. Declarations of inconsistency under the New Zealand Bill of Rights Act and parliamentary responses are seen as examples of constitutional institutions communicating with one another without threatening parliamentary sovereignty.
What she does not address, however, is that Parliament itself established the ability for the courts to make declarations of inconsistency. This was not something that the courts devised and that Parliament meekly accepted.
The concern for Adams is that the “dialogue” suggested by Jagose could evolve into something more. Courts must avoid substituting their own judgment for that of Parliament.
In its role as interpreters of statute, there must be a limited level of interference. Courts may prefer rights-consistent interpretations only where such meanings are genuinely available from the enacted text. Judges should not revise Parliament’s choices in pursuit of preferred outcomes.
Tikanga and legal development
The issue of tikanga Māori is perhaps the sharpest point of divergence.
Jagose’s approach to this issue is that tikanga’s increasing prominence is an example of the evolutionary nature of New Zealand law. Certainly she is correct that tikanga has long existed within the legal system. The Ellis case, she argues, is part of that evolutionary development. Thus she must consider that the approach in Loasby is outdated and no longer relevant.
Adams adopts a more cautious approach. Yes, tikanga may operate within the common law in certain limited circumstances, thus endorsing the Loasby approach. Tikanga has been recognised where custom has been established and is relevant to the parties before the court.
She considers that the broader claims emerging from what can properly be consider as no more than obiter are constitutionally unsettled and introduce uncertainty into the law.
Adams expressly rejects treating tikanga as a general source of law applicable to all issues of statutory interpretation or common law development, thus preferring restraint and doctrinal discipline.
Constitutional culture vs legal methodology
An underlying theme of Jagose’s address is that of constitutional culture and her concern is not only for lawyers but also for citizens. Her concerns are trust, participation, democratic habits, consultation and civic understanding. For her, the constitutional culture is both moral and political with underlying themes of legitimacy, inclusion, power and social cohesion.
Adams, on the other hand, is concerned with legal method. Her focus is upon interpretation, precedent, the text of the statute, the incremental development of the common law and methodological discipline. Her primary emphasis is upon legal certainty.
Style and subtexts
In discussions such as this, it is not only the external appearance of the content that matters. How the content is presented and its context and emphases can provide additional assistance in determining what in fact is being said.
The occasions of the two speeches were quite different. Adams was delivering a formal address to the Legal Research Foundation AGM. The text of her speech reflects that formality – it is written in an academic style and is heavily footnoted. The speech is systematic and is organised around formal legal propositions. It aims to persuade through orthodox doctrinal coherence.
Jagose was addressing a breakfast event. The material that I have had to work with from her speech are her speech notes and a LawNews report. Hers indicates a less formal approach. Her address is more that of the constitutional advocate and public intellectual. She employs narrative, humour, anecdote, rhetorical questions, civic appeals and warnings.
She employs vernacular idioms and language referring to book clubs and running clubs, developing these as the locations for public engagement with the democratic habits and constitutional issues that concern her, not the least of which is constitutional complacency. Hers is a call for public engagement rather than the technical legal exposition that characterises Adams’ approach.
The less formal approach adopted by Jagose allows a number of subtexts to flow through. She expresses an underlying element of concern. Phrases such as “sleepwalking,” warnings about losing constitutional fabric and references to authoritarian habits create an overall narrative of the fragility of our constitutional arrangements which are portrayed as vulnerable and requiring constant vigilance.
Jagose denies that the courts are overreaching, as has been suggested by commentators such as Jack Hodder KC and Peter Watts KC. But she defends judicial developments that these writers have criticised, especially in the areas of tikanga and constitutional interpretation. She does not confront the critics head-on but restates these developments as aspects of the evolutionary nature of the common law.
Jagose can do no other than endorse the importance of parliamentary supremacy, but that is not an absolute. Rather, it must be seen in a relativistic light with its continued legitimacy arising from interactions among Parliament, courts, Māori constitutional interests, legal norms and public participation. Thus, for Jagose, constitutional authority is dispersed among institutions rather than being concentrated exclusively in Parliament.
Conclusion
The speeches from Jagose and Adams reveal differing and competing understandings of New Zealand’s constitutionalism. Ironically, both have (and in the case of Adams still do) occupied the same position in the governmental structure.
And both see that office as a guardian of constitutional integrity. Both respect parliamentary supremacy, judicial independence and the rule of law. Both believe constitutional stability matters.
But the vision differs. Jagose adopts the “thick” view – and holds that constitutionalism is a living network of institutions, values, dialogue, rights, tikanga and democratic legitimacy. Parliamentary supremacy exists within a rich constitutional structure that imposes substantive as well as procedural constraints.
For Adams, on the other hand, constitutionalism requires disciplined adherence to enacted law, judicial restraint, incremental development of doctrine and respect for Parliament’s unique democratic authority. The rule of law is primarily a formal virtue; courts should interpret rather than innovate.
The disagreement reflects a contest between two constitutional philosophies. One is the evolutionary approach and institutional dialogue together with the tensions that approach entails. The other is based in an orthodox view of formal rule of law theory and parliamentary sovereignty.
What arises from that are two pathways for the future direction of New Zealand public law. Which path is to be taken? A path that is more attractive to judges, lawyers and politicians or that which, ultimately, is in the interests of the public itself.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - This article was sourced HERE
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