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Henaghan, Mark --- "The Smilie method: a tribute to Professor John Smillie's legal scholarship" [2016] OtaLawFS 15; The Search for Certainty: essays in honour of John Smillie 166

Last Updated: 31 May 2019



Mark Henaghan*


I had the good fortune to first meet Professor John Smillie when he returned to Dunedin from completing his JSD (Doctor of the Science of Law) at Yale. After a stint of teaching at Monash University in Melbourne, Smillie took up a lecturing position at the University of Otago Faculty of Law in 1973. The students knew him as Dr Smillie in those days. Smillie taught constitutional law in his first year and then administrative law a year later. I was in both of those classes. Smillie was an excellent teacher with extremely high standards. Smillie expected us all to be well prepared for each class and to be able to articulate our own arguments about the issue at hand. Smillie was well known for the way he dissected the judgments of the court with great dexterity and clarity. He placed particular emphasis on quality of analysis, rather than quantity of material. I specifically remember the detailed way we were taken through the reasoning in Anisminic Ltd v Foreign Compensation Commission,1 which was a revolutionary case at that time. We spent several classes comparing and contrasting the legal analysis in the judgments, the logic or lack of it in the reasoning process, and carefully assessing the likely impact of the case. I still have the lecture notes from those lectures to remind me of what first class legal teaching can achieve. It was a master class in legal reasoning, a skill Smillie was highly versed in, and one that he fostered in all of his students. It is an attribute that has become synonymous with the Faculty as a whole due to Smillie’s enduring influence.

I had the further good fortune to work alongside Smillie as a colleague for 37 years until his retirement at the end of 2015. Whether at staff meetings or seminars, Smillie’s incisive mind would inevitably cut to the quick of the issues that were being discussed. Smillie would listen thoughtfully and then quietly but assuredly inform us of what we were actually talking about and what the issue really was. Inevitably Smillie was right. The Faculty owes him a significant debt for the insightful ways he contributed to such discussions over the years.


Dean and Professor of Law, Faculty of Law, University of Otago, Dunedin, New Zealand. Thank you to Ruth Ballantyne, Professional Practice Fellow, Faculty of Law, University of Otago for her editorial assistance with this chapter.
1 Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 (HL).

Smillie was a meticulous researcher. I always enjoyed visiting Smillie in his office for a chat while he was working on a significant piece of research. He always had the relevant leading cases carefully laid out on his desk so that he could read them extremely closely and thoughtfully. By the end of this process, the cases were suitably decorated with detailed marginal notes on every page and all of the important bits were underlined with his ever-present red pen. These notes usually reflected Smillie’s reactions to the judicial reasoning process (or lack thereof) and it is fair to say that Smillie took no prisoners in this regard. I have often wondered what the judiciary would think if they ever saw a copy of Smillie’s annotations of their judgments.

Smillie was also an outstanding supervisor of postgraduate and honours dissertations. His students were required to think hard about the key issues involved in the topics they were researching. It developed their understanding and intellect for the law immensely, just as when I was a student.

Smillie was not just a well-respected teacher and colleague; he was also a valued friend to myself and others at the Faculty. He was particularly good at ensuring the academic staff got together at the local pub on a Friday night to have a convivial drink or two and discuss the issues of the week, which incorporated everything from law and politics, to sport and life in general. Smillie was also a very regular attender of Faculty morning teas and believed that exchanging ideas and debating legal issues over a hot beverage was a vital part of an academic’s day. Smillie’s words of wisdom and his approach to law, morning tea, and staff meetings are still frequently discussed in the corridors of the Faculty (and at the pub) and will be for some time to come.


The focus of this chapter is Smillie’s contribution to legal scholarship. Smillie was well known for cutting to the chase, with the most minimal amount of throat clearing. Smillie’s work concentrated on making one key point which, supported by impeccable research, analysis, and reasoning, always led to a clear and convincing conclusion. Smillie was particularly interested in solving legal problems in novel and carefully thought-out ways, resulting in his work being widely cited in New Zealand and around the world.2 Smillie often took controversial positions,

2 For example, John Smillie “Who Wants Juristocracy?” [2006] OtaLawRw 2; (2006) 11 Otago LR 183 was cited and/

or quoted in the following publications: Bruce Harris “Judicial Activism and New Zealand’s Appellate Courts” in Brice Dickson (ed) Judicial Activism in Common Law Supreme Courts (Oxford University Press, Oxford, 2007) 273 at 287; Andrew Geddis “Inter-Institutional

not merely for the sake of it, but rather as a result of his relentless reasoning and his preparedness to follow things through to their logical conclusions.

I have distilled the essence of Smillie’s legal scholarship into what I call the Smillie Method. The Smillie Method involves five key tenets:

Each of these tenets will be discussed in turn below in the hope of inspiring young and experienced legal scholars alike to adopt some of Smillie’s most impressive and effective legal reasoning techniques.

2.1 Make a Point

Smillie frequently used the American colloquialism “where’s the beef?” This was Smillie’s way of encouraging the individual to cut to the chase and make a point. Some academics superficially describe how a particular law functions without

Rights Dialogue under the New Zealand Bill of Rights Act” in Tom Campbell, Keith Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights (Oxford University Press, Oxford, 2011) 87 at 88; Andrew Geddis “The Comparative Irrelevance of the New Zealand Bill of Rights Act to Legislative Practice” (2009) 23 NZULR 465 at 466-467; Andrew Geddis “Prisoner Voting and Rights Deliberation: How New Zealand’s Parliament Failed” [2011] 3 NZ L Rev 443 at 460; Tony Smith “Inching Towards an Australian Bill of Rights: Cousinly Comments on the Australian National Human Rights Consultation Report” [2010] UNSWLawJl 9; (2010) 33 UNSWLJ 171 at 189; Thio Li-Ann ““It is a Little Known Legal Fact”: Originalism, Customary Human Rights Law, and Constitutional Interpretation” [2010] Sing JLS 558 at 560; David Erdos “Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand” (2009) 34 Law & Social Inquiry 95 at 124; John Morss “Good Global Governance: Custom, the Cosmopolitan, and International Law” (2007) 3 International Journal of Law in Context 59 at 65; and John Hansen “Courts Administration, the Judiciary, and the Efficient Delivery of Justice: A Personal View” [2007] OtaLawRw 2; (2007) 11 Otago LR 351 at 361. Smillie also authored four chapters of Law of Torts in New Zealand, which is the most cited work in the New Zealand courts. See John Smillie “Trespassing on Land” in Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) 423; John Smillie “Nuisance” in Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) 461; John Smillie “The Rule in Rylands v Fletcher” in Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) 517; and John Smillie “Remedies” in Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) 1,111.

considering why the particular law exists and whether the particular law should exist at all. Such academics do not actually seem to have a point to make. However, legal scholars are paid to question the law and, therefore, such analysis should be a significant part of their work. It takes time to do this well and to really get to the bottom of what is going on, especially considering how quickly the law changes.

This type of analysis sometimes requires taking a controversial position, something Smillie has never been afraid to do. For example, alongside calling for the abolishment of the Supreme Court of New Zealand,3 and preventing nonelected judges from deciding moral and social issues better left to Parliament,4 Smillie has also suggested eliminating the law of negligence,5 the limited liability of companies,6 the rule in Rylands v Fletcher,7 and the courts’ jurisdiction to award exemplary damages.8 Smillie has also controversially argued in favour of adopting a “general fair use exception to the exclusive exploitation rights of copyright owners”,9 as well as extending New Zealand’s Accident Compensation scheme

3 Smillie “Who Wants Juristocracy”, above n 2, at 192 where Smillie states: “As a first step to

reducing the number of judges, Parliament should abolish the Supreme Court. The Supreme Court is simply a wasteful extravagance – one right of appeal to a competent and consistent tribunal is quite enough to meet the reasonable demands of justice. After all, the highly sophisticated Roman legal system functioned perfectly well during much of its classical period with no rights of appeal at all. Wisely, the Romans focused their efforts and resources on ensuring one competent trial of the merits of the case.”

  1. Smillie “Who Wants Juristocracy”, above n 2. See also John Smillie “Formalism, Fairness and
    Efficiency: Civil Adjudication in New Zealand” [1996] NZ L Rev 254 at 274 where Smillie states: “In the end, it is up to those of us who remain sceptical of judicial claims to Solomonic wisdom and moral infallibility to express our concerns, and attempt to persuade our judges to take a more modest view of their role in society, and one that is more within their limited capabilities as lawyers.”
  2. John Smillie “Certainty and Civil Obligation” [2000] OtaLawRw 4; (2000) 9 Otago LR 633; John Smillie “The
    Future of Negligence” (2007) 15 TLJ 300; and John Smillie “Tort, Contract, and the Limited Liability Company – Another Look at Trevor Ivory Ltd v Anderson” in Jeremy Finn and Stephen Todd (eds) Law, Liberty, Legislation: Essays in Honour ofjohn Burrows QC (LexisNexis, Wellington, 2008).
  3. Smillie “Tort, Contract, and the Limited Liability Company”, above n 5, at 140 where Smillie
    states: “What then should be done about limited liability? My preferred solution would be to remove the privilege entirely so that the corporation is returned to its proper legal status as the agent of its members. Every shareholder would be personally liable for the company’s debts.”
  4. John Smillie “Non-Natural Use” [2011] NZLJ 88 at 90 where Smillie said “New Zealand
    courts should be prepared to take the next logical step and follow the High Court of Australia by formally abolishing the rule in Rylands v Fletcher.”
  5. John Smillie “Exemplary Damages for Personal Injury” [1997] NZ L Rev 140. See also John
    Smillie “Exemplary Damages and the Criminal Law” (1998) 6 TLJ 113 at 121 where Smillie states, “I hold to the view I expressed in 1996 that in New Zealand, exemplary damages should be abolished and compensatory damages limited to pecuniary loss.”

9 John Smillie “Digital Copyright Reform in New Zealand” (2004) 26 EIPR 302 at 312.

(ACC) to cover, not just accidental injury, but also incapacity resulting from illness.10 Smillie is also a proponent of retreating from the principle of individual fairness in each case when applying common law principles, and proceeding by way of cautious adoption of established rules and categories of liability.11

All of Smillie’s legal scholarship (whether controversial or not) has a robust and often memorable point to make. His point is made clear early on and reinforced throughout each piece of writing, alongside detailed reasoning. This ensures that the reader is left in no doubt as to what the point is and why Smillie is taking that particular position on the issue in question. For example, Smillie’s article on “Who Wants Juristocracy?” demonstrates his concerns that New Zealand society is moving from a “parliamentary democracy (in which parliament is acknowledged as the supreme lawmaking authority)” towards a more American “constitutional democracy in which legislation as well as delegated government action is subject to judicial review”.12 The article clearly illustrates Smillie’s opposition to judges having “the final say on controversial issues of morality and social policy.”13 This is all set out in the first paragraph of the article allowing the reader to see where the article is going and what it is about right from the beginning.

Smillie them systematically explains why he has taken this position by analysing what he calls the “case against constitutionalism”.14 He presents seven clear reasons as to why constitutionalism is a bad idea, claiming it is undemocratic,15 that judges are unsuitable “to decide controversial issues of morality and social policy”,16 that it fosters judicial activism,17 that it erodes public confidence in the judiciary and the state,18 that it is expensive,19 and because it “makes a minimal contribution to social justice”.20 Not content to stop there, Smillie then goes on to provide five pieces of advice to Parliament to slow the slide towards constitutionalism. To this end, Smillie suggests that our legislators should repeal the New Zealand Bill of

10 Craig Brown and John Smillie “The Future of Accident Compensation” (1991) NZLJ 249.

11 Smillie “Formalism, Fairness, and Efficiency: Civil Adjudication in New Zealand”, above n 4 and Smillie “Certainty and Civil Obligation”, above n 5.
12 Smillie “Who Wants Juristocracy”, above n 2, at 183.
13 At 183.

14 At 183-189.

15 At 183.

16 At 184.

17 At 185.

18 At 186-187.

19 At 187.

20 At 188.

Rights Act 1990,21 reduce the number of judges,22 abolish the Supreme Court,23 abolish judges’ clerk positions,24 and adopt the European practice of training career judges.25

Not everybody would agree with Smillie’s overarching point or the reasons behind his particular position, many of which are controversial and the subject of much debate. Fewer still would agree with his advice for Parliament, but the reader is left with plenty to think about and an extremely clear understanding of Smillie’s position, the arguments against constitutional democracy, and what can be done to avoid it. This is legal writing at its best; clear, to the point, and with something important to say.

2.2 Analyse the Function of the Law in Question

Behind all of Smillie’s work is the question of function; what is the purpose of this law and what is it supposed to achieve? Law is designed to serve society’s ends; it does not exist merely to create work for lawyers and judges. If the law in question is not fulfilling its intended purpose, then it should be either amended or abolished.

Smillie provides a good example of functionality-based analysis when he argues that limited liability, a central principle of New Zealand’s commercial legal system, is not fit for purpose.26 As a general legal principle, rights come with responsibilities. Yet allowing companies to limit their liability removes many of the responsibilities involved and in fact provides “an extraordinary level of state protection of their assets.”27 Smillie goes on to explain that limited liability is “not a necessary characteristic of incorporation of commercial enterprise” and demonstrates that it was neither the original, nor most important, advantage offered by the corporate form.28 He also makes the point that limited liability is not required for economic growth because “shareholder liability existed in various states [...] up until the early 1930s without any apparent adverse impact on economic development”.29 Smillie emphasises that even Adam Smith, “the pioneer of free market economic theory”, was opposed to limited liability because

21 At 191.

22 At 191.

23 At 192.

24 At 192.

25 At 192.
26 Smillie “Tort, Contract, and the Limited Liability Company”, above n 5.
27 At 137.

28 At 137.

29 At 138.

it encouraged “irresponsible risk-taking by principals and management.”30 Even more revealingly, Smillie demonstrates that few companies actually need the protection of limited liability “for the original justifying purpose of raising capital by public subscription”, because most modern companies are founded by their principals and loans from banks.31

Smillie’s detailed analysis evidences that limited liability does not serve any useful legal purpose and is also morally dubious. As Smillie states, “it is morally wrong to shift the cost of taking risks from those who enjoy the profits when things go well, to creditors and the public generally when things go badly.”32 This is Smillie in his prime, probing beneath the surface and showing why there are no justifiable reasons from a functional perspective for limiting the liability of companies. Questioning whether current laws serve a useful and justifiable social purpose is one of the key jobs of legal academics; a role Smillie wholeheartedly embraces.

Smillie employs the same functionality-based approach to question whether we still need the law of negligence. In explaining his reasoning for this position, Smillie claims that the existence of the law of negligence cannot be justified from either a functional or social policy perspective. As Smillie states:33

The problems raised by negligence liability are both fundamental and acute. In fact the continued existence of an independent tort of negligence is very difficult to justify, either in terms of principle, or instrumentally by reference to the social goals it is claimed to serve.

This is premised on his argument that most people would not accept “that justice requires a person of limited means who is guilty of a moment’s inattention to repair loses that may run to millions of dollars”.34 The law of negligence has been linked to notions of social justice since its very inception. For example, in the famous case of Donoghue v Stevenson,35 Lord Atkin held it was a matter of common sense that Mr Stevenson, the producer of the ginger beer, owed a duty of care to Ms Donoghue, who became unwell after consuming the ginger beer.36 This decision

30 At 139.
31 At 139.
32 At 136.
33 Smillie “The Future of Negligence”, above n 5, at 300.
34 At 301.
35 Donoghue v Stevenson [1932] AC 562.

36 Donoghue v Stevenson [1932] AC 562 at 599 where Lord Atkin held: “[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation

was based on the moral principle of love thy neighbour, which in law becomes do not injure thy neighbour.37 However, in reality, judges have always placed “artificial limits” on the compensation provided by the law of negligence, such as limiting those who can bring a negligence claim and what they can claim for.38 Judges also frequently deploy other “control devices” or wider policy considerations that allow them to reach results that most align “with their views of what distributive justice demands in the particular case.”39 As Smillie explains, such policy considerations are often based on the interests of other persons and groups other than the litigants themselves.40 Ultimately, Smillie concludes, “a theory of corrective justice [...] does not provide an accurate descriptive account of negligence law”.41

The “social goals” the law of negligence “is claimed to promote”, such as deterring harmful conduct and compensating victims of injury, also fail to provide plausible justification for continuing to employ the law of negligence.42 In terms of deterrence, Smillie rightly argues that: 43

or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care. It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense.”

37 Donoghue v Stevenson [1932] AC 562 at 580 where Lord Atkin held: “At present I content myself with pointing out that in English law there must be and is some general conception of relations, giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question “Who is my neighbour?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
38 Smillie “The Future of Negligence”, above n 5, at 301-302.
39 At 301.

40 At 301. See also Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, [2003] 4 All ER 987; D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 AC 373, [2005] 2 All ER 443; Brooks v Metropolitan Police Commissioner [2005] UKHL 24; [2005] 2 All ER 489 (HL), [2005] 1 WLR 1495; Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181, [2006] 4 All ER 256.
41 Smillie “The Future of Negligence”, above n 5, at 302.
42 At 302.
43 At 302.

The defendant who is personally incapable of appreciating the risk associated with his or her conduct, or of responding adequately to that risk, is beyond the reach of any deterrent effect, as is the unfortunate individual whose isolated act of inadvertence happens to result in injury.

He also points out evidence demonstrating that the deterrent affect of possible civil liability is not as strong as assumed. For example, New Zealand’s ACC scheme disallows suing for personal injury caused by negligent acts. Yet the behaviour of health professionals in New Zealand is not worse than those from other countries where negligent heath professionals can still be sued.44

Smillie suggests that the “functions of deterrence and accident prevention are best left to the criminal law, the intentional torts and targeted regulatory regimes.”45 However, employing Smillie’s arguments for why tort liability for negligence is not an effective deterrent, one can also extend his argument to argue that some aspects of criminal and regulatory law do not deter negligent acts any more effectively than the threat of civil action does. By their very nature, negligent acts cannot be effectively reduced as a result of deterrence because they frequently occur as a result of inadvertence or carelessness. Such negligent or careless actions are essentially accidents.

The offence of careless driving is a good example.46 Careless driving occurs when an individual “operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road.”47 The threat of having to pay a fine not exceeding $3,000 and a period of disqualification from driving is likely to have little impact on people falling asleep while driving, or becoming distracted by something internal or external to the vehicle, or taking a corner too fast (but within the speed limit), or skidding on black ice.48 The primary focus is on proving the elements of the offence and appropriately punishing the offender, not deterring the individual involved from similar sorts of inadvertent behaviour in the future. There may be some degree of deterrence for other members of the public who, for example, after seeing the consequences experienced by an individual who fell

44 Marie Bismark and Ron Paterson “No-Fault Compensation in New Zealand: Harmonizing Injury Compensation, Provider Accountability, and Patient Safety” (2006) 25 Health Affairs 278 at 282-283. See also Smillie “The Future of Negligence”, above n 5, at 302.
45 Smillie “The Future of Negligence”, above n 5, at 302.

46 Land Transport Act 1998, s 37. This example of careless driving excludes the more serious charges of careless driving causing injury or death and aggravated careless use of a vehicle causing injury or death contained in ss 38 and 39 of the Land Transport Act 1998.
47 Land Transport Act 1998, s 37.

48 Land Transport Act 1998, s 37. See also Andrew Becroft and Geoff Hall Becroft and Hall’s Transport Law (looseleaf ed, LexisNexis) at [LTA37.6-LTA37.8].

asleep while driving, may decide to pull over and rest if they are tired while driving in the future. However, in a practical sense, this type of deterrence is likely to be of extremely limited effect.

Negligence liability is also an extremely inefficient way of compensating victims of accidental injury because of the need to prove “actionable negligence” and the consequential high costs and long timeframes involved.49 As Smillie states: “only a very small proportion of accident victims are fully compensated for their losses by the tort system, while the cost of administering the system is extraordinarily high.”50 Indeed, the law of negligence is so inefficient at fulfilling this function that Smillie declares that “[n]o rational person would ever devise or adopt the law of negligence as a system for compensating victims of accidental injury.”51

Smillie also rightly points out that abolishing “tort liability for negligence would scarcely be noticed” in terms of damage to property, because of the extensive use of insurance in modern times.52 As Smillie explains, “almost all items of valuable property are covered by first-party insurance, and the negligent action is no longer necessary to provide property owners with compensation for accidental damage.”53 Smillie goes on to say that:54

The few cases that go to court are usually subrogation claims by first-party insurers seeking to recoup their losses from liability insurers or large self-insurers. These claims represent a waste of social resources.

Essentially such litigation, which is extremely costly in nature, becomes an argument as to whose insurance company should pay for the loss suffered. This is Smillie at his best, calling for the abolishment of the law of negligence after carefully thinking through the underlying purposes of the law of negligence and demonstrating that it is not adequately fulfilling these purposes.

2.3 Research, Research, Research

All of Smillie’s pieces of work are supported by impeccable and extensive research. Smillie’s article on “Formalism, Fairness and Efficiency: Civil Adjudication in

49 Smillie “The Future of Negligence”, above n 5, at 303.
50 At 303.
51 At 303-304.
52 At 307.

53 At 307. See also Richard Abel “Should Tort Law Protect Property Against Accidental Loss” (1986) 23 San Diego L Rev 79.
54 Smillie “The Future of Negligence”, above n 5, at 307.

New Zealand” is a good example.55 This article will be read and cited for many years to come, not just because of the clear way he explains his ideas and the strength of the reasoning he employs, but also because of his comprehensive research.

Smillie’s article argues that a civil adjudication system based on clear predictable rules is preferable to a system where judges can decide the case on the basis of their own notions of fairness. Such a view of fairness, whereby fairness is “both personal and intuitive” and reflects “the judge’s own moral convictions” is, as Smillie demonstrates, “an extraordinarily arrogant philosophy.”56 Smillie concedes that a rule based system cannot remove all uncertainty because of the inherent ambiguities of language and that in exceptional cases long standing rules may need to be changed. Circumstances also frequently arise which do not neatly fit into pre-existing categories. However, Smillie argues that judges should be very cautious about altering legal rules to ensure that the required level of predictability remains in the system. Smillie’s primary focus is to enhance predictability and consistency in the law wherever possible. In Smillie’s words:57

Consistent application of settled rules does tend to promote certainty in the law, enhances the predictability of legal outcomes, and encourages future planning and co-operative activity. And since rules limit the number of facts and arguments to which decision-makers can have regard, rule-based adjudication offers a manageable and efficient means of resolving disputes which conserves the resources of judges, lawyers and litigants alike.

Smillie’s argument is based on a critique of a number of influential proponents of the virtues of fairness such as Sir Robin Cooke and Thomas J.58 It is clear from his analysis that Smillie spent a significant amount of time researching and considering their work in this field while developing his own countervailing arguments. Such analysis adds considerable strength to his own views, as does the significant number of cases referenced throughout the article.

2.4 Provide Clear Reasons for your Position

No researcher can ever be convincing unless they provide clear reasons for the position they are advocating for. Smillie’s article entitled “Certainty and Civil

55 Smillie “Formalism, Fairness and Efficiency”, above n 4.
56 At 261.
57 At 257.
58 At 259-268.

Obligations” is a good example of this.59 The article clearly sets out Smillie’s reasons as to why the values and interests recognised by “the traditional heads of civil obligation” remain relatively stable and why this is a good thing.60 The real advantage of judges remaining true to these underlying values and interests is that they confine “judicial discretion within narrow limits, thereby enabling the law to be applied consistently, predictably and efficiently.”61 Smillie’s primary reason for this belief is because of the inherent fundamentality of these values and interests. As Smillie states:62

I believe that the traditional heads of civil obligation recognise and promote fundamental human values and interests that remain relatively fixed and constant over time. These values and the relationships between them are not subject to rapid or radical change – in particular, they do not react quickly to sudden shifts in political direction or popular ideology. The purposes of the various heads of obligation and the nature of the interests they protect and serve dictate the remedies available for their breach.

This initial reason is supported by specific examples under a number of civil heads encompassing contract, fiduciary obligations, intentional torts, and negligence.63

The rationale for the law of contract is, in Smillie words, “to positively encourage contracting”.64 The creation of contracts is deemed to be a social good, both in moral and economic terms. As Smillie states:65

The activity of contracting promotes two distinct but complementary social values; one moral, the other economic. First, by providing the means by which people can secure a measure of control over the future, contracting enhances the core moral value of freedom or autonomy – the ability of each individual person to choose and pursue his or her own goals and plans for life. Secondly, voluntary exchange-bargains promote the collective welfare of society as a whole by creating and sustaining markets which tend to allocate scarce resources to those who value them most highly and can use them most productively. So contracting is good for us all, and citizens must be encouraged to pursue their goals and realise their choices by negotiating exchanges of binding promises.

59 Smillie “Certainty and Civil Obligation”, above n 5.
60 At 638.
61 At 651.
62 At 638.
63 At 638-650.
64 At 639.
65 At 639.

This is why the common law rules of contract “place such a high value on certainty and predictability.”66 In essence, people need to know whether and when they are legally bound by a contract. They also need to know what will happen if they change their mind and no longer wish to be bound by the contract.

The rationale for the law of trespass (an intentional tort) is quite different. The law of trespass essentially “condemns as prima facie wrongful any positive voluntary act which interferes directly and immediately with another’s freedom of movement, bodily integrity or physical property”.67 As Smillie states, the underlying justification for the law of trespass is that “deliberate acts of interference with [individual autonomy or freedom] must be strictly proscribed in order to guarantee everyone an equal freedom to pursue their own chosen ends.”68 Given this rationale, “trespass is actionable without proof of actual harm, and reasonable mistake or good motive provides no defence.”69

Identifying the underlying rationales of legal rules helps clarify how the particular rule should be interpreted and what potential limits exist. Smillie’s aforementioned article provides clear reasons as to why it is crucial to know and understand what interest(s) each head of obligation is trying to protect and how they fit into the wider purpose of stability and consistency within the law. This is legal reasoning at its best; something at which Smillie excels. It is a vital part of the academic role and something that we can all learn from.

2.5 Write Succinctly and Clearly

It is not just what Smillie says that is important, but also the way that he says it. A great virtue of Smillie’s scholarship is that it packs an extremely powerful punch in a very succinct way. His articles and book chapters are not long, even though they are based on a great deal of research and thought. He always gets straight to the point of the argument at hand in the quickest and clearest way possible. Each word is chosen carefully and thoughtfully. On every page of Smillie’s work it is clear he has thought deeply about what he is saying. The final product is not the sum of all of his research, but rather a pared down distillation of the important points, backed up by a typically robust Smillie reasoning process. His use of ordinary and easy to understand language, which could easily be read and understood by members of the public without legal training, further enhances the readers’ understanding of his argument and the way New Zealand’s legal system

66 At 639.
67 At 643.
68 At 643.
69 At 643.

actually works. In an age where academic articles have become longer, wordier, and more complex, Smillie’s body of work is an oasis of clarity and succinctness.


Professor John Smillie has spent his academic career researching and writing about what society really needs from the individual laws making up New Zealand’s legal system. If the particular law is unnecessary, Smillie makes a case for the law in question to be abolished. This is not a common feature of legal academic writing or legal commentary where there is a tendency to think that all laws are entirely necessary and important. Questioning whether long established laws are actually serving any particularly useful purpose for society is what sets Smillie apart as a legal thinker and is at the heart of the Smillie Method. It is a legacy that I am sure will continue to inspire legal academics in the future to ensure that all our laws are relevant and productive in terms of the common good. Smillie’s sharp, analytical mind and clear prose will be greatly missed. It has been an immense privilege to work alongside Smillie as one of his former students, as a colleague, and as a friend.

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