Values

Maybe there’s something in the water. The Supreme Court issues one decision informed by classic strike-out principles and 19th century English case law about public nuisance and everyone decides it’s gone woke. Add to that a 20 Year Anniversary conference that participants confused with the Grand National for hobbyhorses and the Supreme Court must be wondering whether it has the inherent jurisdiction to order a national lie down.

The uniting theme in the public commentary flowing from those two events is that the Supreme Court is doing values not law. That was argued in decreasing levels of persuasiveness by Jack Hodder KC, Peter Watts KC, Professor Jim Allan, Roger Partridge, anyone else who commented in this way, and  Gary Judd KC. The concern seems to be that the Court is introducing values into the law, whether through Treaty principles or tikanga or some other means.  The criticisms of that are threefold: (1) values aren’t law; and (2) it’s undemocratic for the Court to do this; and (3) tikanga as a set of values is unknowable or unpredictable, which is bad for the law. 

On the first, law is informed by values all the time. Equity is one seething mire of Anglo values that makes the Chancery Bar rich.  What is the contra proferentem rule but a value, knowable in advance, and applicable to a set of facts? Or audi alteram partem, or noscitur a sociis? All of these reflect values, articulated and worked out over time until they become knowable law. We just fail to recognise them as such because they’re already embedded. It’s like finding out your dad was really into punk in the 1980s – you don’t think of him that way because as long as you’ve known him he’s gone easy on the eyeliner and bought his shirts from Farmers. 

Of course, changing values mean the law changes too. Think Tavita bringing international law to domestic interpretation). Or unjust enrichment: a Massive Concept that has found its way into the common law in the last 50 years (though with DNA of much older provenance). Here is a thing with a long-standing debate over its theoretical grounding, complaints that it is too wishy-washy, capable of application just to get the results you want, and most lawyers don’t understand it.

And yet the response to unjust enrichment has been careful academic spadework, ambitious claims by plaintiffs, cautious application by the courts, counsel figuring it out, steps forward and steps backward. What would be so bad about tikanga informing Lex Aotearoa walking a similar path? The academy has been hard at work, the ambitious claims are there, and now we’re at the cautious application by the courts stage.

The second objection about all this is that it is undemocratic. But as with anything, Parliament can always legislate it if it wants. And courts should listen (that’s why Fitzgerald is bad). But short of that, courts do make law – they always have.  And every time someone quotes the need for the Supreme Court to abide by the rule of law you can ask them to read s 3(1)(a)(ii) of the Supreme Court Act 2003. Parliament intended in creating the Supreme Court “to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions”. “Conditions, history, and traditions” sure sounds a lot like values to me. The Supreme Court doing what Parliament wanted is the rule of law in action. 

And the third objection is the supposedly unknowable nature of the values. The rule of law requires the law be knowable in advance. But this is just a skill issue, isn’t it? We accept multifactorial legal tests, we accept that what natural justice requires depends on the context, we accept the very broadest of statements like that correct sentences take into account all features of the offending and the offender. Lawyers can remain upright because they have their sea legs when it comes to these matters. But new currents aren’t a reason to go home. And if new values make a few KCs temporarily seasick, well, they’ll get there.

If the law is on the move then our job as lawyers is to get good. Just like we did with natural justice or unjust enrichment. If that requires more from us – as lawyers and as citizens – then that’s what we need to do. And maybe that’s going to be a challenge for people like those who have commented. Hell, it’s going to be a challenge for me – a Pākehā New Zealander, schooled in a generation that gave me a fair pronunciation of Te Reo Māori and a good-but-basic understanding of New Zealand history, but who’s lazy, and happy to say the right things as long as that means I don’t need to do anything that makes me uncomfortable. Well, tough. The challenge for us is to get better. And if we don’t have the energy and skills to do it, then there are generations of smarter lawyers coming after us who do.

The idea that the law might be changing is the only constant the law has. To stop and criticise the law’s latest developments after 1000 odd years  is to say that right now the law is as good as it is going to get. I refuse to accept that’s true.

When somebody wants to write some criticism that isn’t implicitly saying “I don’t understand the new law and I’m not willing to do the work to learn it”, I’d be happy to read it. In the meantime, I’ll be getting on with being a lawyer.