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Elias, Rt. Hon. Dame Sian --- "Forward" [2008] NZLawStuJl 1; (2008) 1 NZLSJ X

Last Updated: 14 January 2013

FOREWORD

RT. HON.DAME SIAN ELIAS, CHIEF JUSTICE OF NEW ZEALAND

Reviewing the collection of essays published here, it is impossible not to feel pride in the scholarship being produced by New Zealand law schools in 2008. The work is not only of a very high standard but the topics are also at the cutting edge, as good law review articles should be. They provide insights into a number of issues which are currently agitating New Zealand law. And the conclusions tentatively or firmly put forward offer some practical suggestions for future development. Since these essays engage with difficult issues as well as topical ones, the ideas expressed may well spur action.

The effectiveness of insider trading regimes is a matter of concern not only in New Zealand but in comparable jurisdictions, as the recent Australian litigation which sparks S Cunliffe’s essay illustrates. Cunliffe notes a divergence in the rationales for regulating insider trading in the US, Australia and New Zealand and suggests, after reviewing the New Zealand case-law, that the US basis, with its lower threshold for materiality is more effective. K. Ewing raises the question why New Zealand traders have been slow to take advantage of the United Nations Convention on Contracts for the International Sale of Goods. It is not a question that would have occurred to me. And, indeed, Ewing identifies ignorance on the part of New Zealand lawyers as a major obstacle to its use by New Zealand traders, an ignorance this article will do much to dispel. K. Venning addresses a topic that is of immediate practical importance to the operation of the courts, the use by lawyers of the news media in winning hearts and minds outside the courtroom. This is a topic I know the Chief Judge of the High Court has firmly in his sights. And he will gain much useful ammunition here for the solution recommended, the development of guidelines for the conduct of lawyers. In “Law as a Secular Enterprise” M. Forster provides a spirited response to Steven Smith’s “Law as a Religious Enterprise”. It argues, using Ronald Dworkin’s theories of interpretation, that law rests on secular liberal values. The practical

consequence (and the necessary reminder) for a working judge is that comfortable application of law as scripture is not available; we need to work harder to express the rational values that underpin law. This essay is thinking at its hardest. As is any essay that tackles causation, as Y. Yasui does in relation to criminal law. Some of the more difficult problems to come before the courts relate to causation. Yasui’s essay sees the way forward as maintenance of a strict distinction between causation in fact and causation in law. Her essay may help some of us to do rather better for the future. C Moody makes the case for reform of the Adoption Act 1955. The essay is a compelling argument why the Act is out of date and inadequate to meet the rights and welfare of the child, which should be central in any modern law. It represents the social values of a society that has changed completely. This essay would repay reading by legislators. So too, would C Hornibrook’s essay on “The Problem of Parental Control”, a measured critique of s 59 of the Crimes Act 1961, which the author argues to have been an opportunity fumbled. The final essay in the collection is also concerned with law reform, in this case the proposal to abolish the Mäori seats. A Wicks argues, in the essay that is the winner of the Ministry of Justice prize, that the abolition of the Mäori seats would be inconsistent with the principles of the Treaty of Waitangi. In making out the case for retention the author draws not only on Article 2 of the Treaty of Waitangi but Article 3 and the guarantee of substantive equality it contains. The emergence of Article 3 in Treaty dialogue has taken some time. It may be predicted that it has far to go in a society based on the rule of law.

As this survey of the contents of the review indicates, the editors as well as the contributors are to be congratulated. All in the profession can take heart from the standing of legal scholarship in our law schools. More importantly, the range of topics and the liveliness of the critical engagement of the authors with their themes are indications that these essays are concerned with “the living law”. Justice Brandeis once said of the living law that it is “not a formula, pinched, stiff, banded and dusty like a royal mummy of Egypt” but “a reality, quick, human, buxom and jolly”.¹ While law may not always be jolly (or quick or buxom), at its best it must combine the intellectual and the practical if it

¹Louis D Brandeis, The Living Law (1914) 359-360.

is to be fit for the needs of men and women in our society. These essays are intellectual and practical and a worthy contribution to the living law in 2008.

Rt. Hon. Dame Sian Elias

^{Chief Justice of New Zealand.}