Island Life by David Slack

This Is Not London Calling

Tomorrow morning as the nation finally cuts its ties to the Privy Council and the Justices of the Supreme Court embark on their first sitting, my family will be packing our bags and leaving the country.

We will return ten days later. Couldn't be happier with the new arrangement; just taking a holiday.

Lawyers, eh? To hear some people talk, the whole profession is suspect. If they're not gouging you with high fees for problems created by other lawyers in the first place, they're letting lowlife-guilty-as-hell-scum walk the streets. They're conscience-free and too clever by three quarters.

I have to admit, when I drop in to the offices of some of my friends in the big firms I wonder what poor bastard is picking up the tab for the magnificent art, interior d├ęcor and Italian furniture. But some of the fairest, most decent people I know have made their careers in the law. They more than compensate for the occasional one I've met who doesn't quite fit that description.

I don't especially regret having never practiced law. I doubt that I'd have enjoyed myself as much as I have in the less conventional career path I've chosen. But from time to time when my work carries me back towards aspects of the law, I remember how much I enjoyed studying it.

Practitioners will tell you that what you dwelt on in Law School comes up a lot less often your day to day work. You spend a lot more time sorting out your client's concerns than standing at your window pondering the finer points of contemporary New Zealand jurisprudence and taking the larger view.

The larger view, though, can be quite instructive, and it was that wider context that I found especially interesting in our studies. For example: how the courts over time, ostensibly following precedent, still somehow adapted and changed laws according to the changing social and economic context.

It would be fair to say this new court has been set up in the face of less than universal acclaim. Personally, I like it. I have no real basis for judging whether there is any merit to the criticism that the Justices might not be of adequate calibre, although it wouldn't entirely surprise me to learn that a criticism of that kind was less than objective.

Is the argument that there are no lawyers in the country of sufficient ability? If it is, then this seems to be discouraging news for everyone who's been paying several hundred dollars an hour for lawyers who might be drawn from that pool. Or is the argument that there are talented lawyers here, but that they won't make themselves available under the prevailing terms and conditions? A solution to that problem seems fairly obvious.

Actually, if the Metro article this month on the state of the market for the big eight law firms is any guide, it sounds as though the shift of the economic axis from Auckland to Sydney is starting to bite for some of those firms. Maybe that shortage of cream work might free up some cream talent.

Personally I see nothing to make you fret about the calibre of the Justices who will actually taking their seats tomorrow, and I'm sure legal commentators will quickly draw our attention to any shortcomings that might arise in their decisions. Debate will no doubt follow.

A bigger issue, I think, is this question of judicial activism. Critics claim, among other things, that it undermines certainty. I think the wider view can help here. Try this from Bridled Power by Geoffrey and Matthew Palmer:

There is value in both certainty of law and in fairness of result. The balance struck by particular courts tends to ebb and flow over time and usually reflects ( sometimes with some delay) the ebb and flow of social economic cultural and political views in a society. The Privy Council and the Court of Appeal reflect different states of the tide in different societies.

I think we lose sight of the fact that courts tend to reflect what's happening in society. I think we also need to bear in mind that to the extent they indulge in judicial "activism" they tend to be doing so in a vacuum left by parliament. The interpretation of the principles of the Treaty of Waitangi would be one example, and if you'd like to see that issue developed, there's, er, a helpful little book I can recommend. If you don't like the idea of the courts usurping the role of Parliament, there's one pretty useful solution available to you: legislate accordingly. When you write your legislation, make your meaning clear, specific and detailed.

I think there's quite a lot of distrust of our machinery of government, and I wonder if that's in part because we don't have the kind of civics lessons they have in schools in the US. That hasn't stopped certain "patriotic" Americans from taking some rather breathtaking liberties with that country's constitution lately, so you might argue that being better informed doesn't make you better protected. On the other hand, at least the debate that has ensued has been a pretty well-informed one.

I think we could do a much better job here of being more tolerant and accommodating of a variety of opinions and attitudes. I think there's still a strong Kiwi streak that tries to corral everyone into a single prevailing point of view. The whole point of a robust democratic process is that it allows for multiple points of view, and finds a way to accommodate different ideas, different people and different cultures.

There has to be room for debate, for give and take and for arguments to be had, and to be resolved. This new court adds one more valuable part to the structure, and I think we should be pleased to have it.