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Robertson, Michael --- "The elegiac and Manichean jurisprudence of John Smillie" [2016] OtaLawFS 9; The Search for Certainty: essays in honour of John Smillie 36

Last Updated: 31 May 2019



Michael Robertson*

I owe a lot to John Smillie. He was the dean who offered me a job at the Law Faculty of the University of Otago many decades ago. Shortly after my arrival he put me into the compulsory Jurisprudence course and told me to teach legal realism and critical legal studies (CLS). This was a bold move on his part, both because I had no prior experience with these jurisprudential movements and because he had no great sympathy towards them himself. However, as I educated myself about legal realism, CLS and other versions of critical jurisprudence, I found that I was developing an appreciation for their positions. Additionally, in the footnotes of some of the CLS articles I found references to Stanley Fish, and as I subsequently puzzled my way through Fish’s books I was led down the path that became one of my major research interests. So now, in a display of monstrous ingratitude, I will use what I learned from legal realism, critical jurisprudence and Stanley Fish to question the three jurisprudential positions that John Smillie developed in five articles which span twenty years: “A Bill of Rights for New Zealand? An Alternative Proposal”;1 “The Allure of ‘Rights Talk’: Baigent’s Case in the Court of Appeal”;2 “Formalism, Fairness and Efficiency: Civil Adjudication in New Zealand”;3 “Certainty and Civil Obligation”;4 and “Who Wants Juristocracy?”5.


1.1 Legal formalism is strongly defended, and any moves to depart

from it in the name of fairness or justice are rejected

Legal formalism tells judges to apply the objective meanings of established legal rules in a neutral manner, and to avoid any “judicial activism.” Judges should first

* Associate Professor of Law, Faculty of Law, University of Otago, Dunedin, New Zealand.
1 John Smillie “A Bill of Rights for New Zealand? An Alternative Proposal” (1986) 6 Otago LR

175 (hereafter ‘Article 1’).

  1. John Smillie “The Allure of ‘Rights Talk’: Baigent’s Case in the Court of Appeal” (1994) 8
    Otago LR 188 (hereafter ‘Article 2’).
  2. John Smillie “Formalism, Fairness and Efficiency: Civil Adjudication in New Zealand” [1996]
    NZ L Rev 254 (hereafter ‘Article 3’).

4 John Smillie “Certainty and Civil Obligation” [2000] OtaLawRw 4; (2000) 9 Otago LR 633 (hereafter ‘Article 4’).
5 John Smillie “Who Wants Juristocracy?” [2006] OtaLawRw 2; (2006) 11 Otago LR 183 (hereafter ‘Article 5’).

identify the legal rule called for by the facts of the case before them, and then simply follow the literal meaning of that rule without distorting it by engaging in interpretation. They should not allow any of their own beliefs about what would be a fair or just or wise resolution of the case to deflect them from their duty to apply the existing law. Nor should they inject any of their own background moral or political commitments into the process of law-application. As John describes it:6

A formalistic approach to adjudication is a natural corollary of a positivist view of the nature of law itself. By this view, the law consists largely of posited precepts laid down in legislation or leading judicial precedents. These precepts or rules are of universal application and are couched in reasonably clear and specific terms. They take the form of generalized propositions that specify particular legal consequences to prescribed sets of facts: if facts A, B and C exist, then consequence X must follow. By this view, the role of the judge in our society is a limited one—the judge’s basic job is to ascertain the relevant facts and apply the applicable rule.

How do the literal or objective meanings of legal rules, which are crucial for the legal formalist project, come to exist? The formalist answer is textualism: legal rules acquire perspicuous and compelling meanings through syntax and semantics. English words with established conventional meanings (which are collected in dictionaries) are combined according to the rules of English grammar into a linguistic unit that has a fixed meaning independently of the intention of the author, or the response of the reader.

John is a staunch defender of legal positivism and legal formalism: “In my view the role of the courts is to act as a conservative, stabilising force through consistent application of established norms that reflect settled expectations.”7 “Rule-based adjudication is necessarily conservative. It reflects a generally positive view of the status quo and a belief that any radical change from past practice is likely to produce worse rather than better outcomes.”8 He acknowledges that the legal formalist approach to law has some costs, but insists that it has far more benefits. It might be inflexible, but it achieves the rule of law, rather than of men. It delivers certainty, predictability, and the ability to coordinate and plan.9

6 Article 3, above n 3, at 255.
7 Article 5, above n 5, at 189.
8 Article 3, above n 3, at 258.
9 At 257.

But interestingly, (and as I shall later argue, significantly), it is very hard to find a pure legal formalist. They invariably qualify their position in various ways, as H.
L. A. Hart does in chapter 7 of The Concept of Law.10 John follows this pattern and also qualifies his legal formalism. He too sees some scope for innovation and creativity in judicial work, even while he insists that it should mostly be formalistic in nature:11

But even the most committed formalist must acknowledge that not every dispute can be resolved by mechanical application of a rule, and will concede that judges retain some legitimate capacity for choice between alternative solutions. The inherent ambiguity of language means that rules are necessarily uncertain at their margins, so that judges are frequently called upon to perform a creative interpretive role. And since the common law has never adopted a rigid default rule which dictates that a claimant must lose unless he or she can point to an existing rule which clearly grants relief in a case of that kind, there will always be gaps in the law that must be filled by an exercise of creative judicial judgment.

However, qualifying legal formalism is fraught with danger. “If the camel gets its nose in the tent, his body will soon follow,” goes the saying. How can a legal formalist stop the qualification to his doctrine from expanding its scope and allowing flexibility and discretion to infect more and more of the law? Although John does not seem to be aware of it, this problem is exemplified by his own account of legal formalism. Here, for example he endorses the textualist position, but immediately qualifies it in ways that undermine the whole formalist project:12

As to statutory interpretation, except in relatively rare cases of genuine ambiguity or absurdity, judges should give effect to the ordinary literal meaning of the provision in question unless, of course, a literal interpretation derogates from firmly established common law rights or settled expectations based on longstanding legislation, in which case the provision should be construed strictly so as to avoid or limit the derogation... The courts should avoid reference to extrinsic aids to interpretation, and ignore legislative attempts to direct them as to how they should exercise their constitutional function of interpreting statutes. Just as s 5(j) of the Acts Interpretation Act 1924 was largely

10 H.L.A. Hart The Concept of Law (Oxford University Press, Oxford, 1961).
11 Article 3, above n 3, at 255. See too Article 5, above n 5, at 190.

12 Article 5, above n 5, at 190-191. See too 189: “They should treat with suspicion legislation that seems to abrogate or derogate from entrenched common law principles and entitlements, or established expectations based on longstanding statutory provisions, and interpret the legislation strictly to avoid that result.”

ignored, so too should s 5 of the Interpretation Act 1999 and s 6 of the New Zealand Bill of Rights Act 1990.

In other words, give effect to the literal meaning of the statute passed by the legislature, unless, of course you think that the statute should be limited because its literal meaning “derogates from firmly established common law rights or settled expectations”, or because the statute is one that you think you have good grounds to “ignore.” Put bluntly: Be a legal formalist unless you think it produces bad results, in which case become an “activist judge” and depart from the literal meaning of the statute. And how can you limit in advance the circumstances when such judicial activism will be turn out to be necessary to save the law from itself (or at least from the legislators)?

Notwithstanding that he has already allowed the anti-formalist camel access to the tent via the back door, John ferociously guards the front door against what he sees as the major danger to formalism. He identifies this threat as those who think that it is justified to depart from the clear meanings of established legal rules in order to advance the goals of fairness or substantive justice. In the past, some legal realists explicitly endorsed these non-formalist values and goals. But the people whose open advocacy of fairness and substantive justice raise John’s hackles are some judges on the New Zealand Court of Appeal, particularly Justices Cooke,13 Richardson14 and Thomas.15 John investigates the soundness of these judges’ shift away from legal formalism and finds serious problems. He finds that Cooke and Thomas ultimately can give no solid content to their value of “fairness,” for all their talk about “shared social values” and “community...expectations”.16 Fairness ends up being something personal and idiosyncratic to the judge, and this undermines the rule of law:17

Ultimately, it seems, the ideal of fairness is both personal and intuitive, reflecting the judge’s own moral convictions. Justice Thomas concedes this point, and openly asserts the right of judges to ‘express that opinion which best serves their intelligence and wisdom and best discharges their personal scruples and conscience’. Expressed in this way, fairness represents an extraordinarily arrogant philosophy.

Richardson tries to inject some rigour into the concept of fairness by appealing to utilitarianism and economic notions of efficiency (Kaldor-Hicks and Pareto), but

13 Article 3, above n 3, at 254, 259.
14 At 258.
15 At 260.
16 At 259.
17 At 261. See too Article 4, above n 4, at 633.

John argues that all of his attempts also fail to rescue “fairness” from the swamps of confusion.18 His conclusion is that the shift from legal formalism to fairness and justice in the decision-making of the NZCA is a terrible mistake.

1.2 The common law of civil obligations and remedies established in the 19th century is strongly defended, and any moves to depart from it on the grounds that the law has to be modernized are rejected

John claims that the 19th century common law of civil obligations and remedies is a particularly cohesive and integrated body of law that is the expression of a single political vision:19

The traditional formal categories of civil obligation and their associated remedial regimes are not mere accidents of history that serve only to obstruct achievement of just outcomes. In fact the traditional heads of obligation protect different fundamental human values and interests and promote quite distinct social purposes. And the nature of those values and purposes dictate the form of the remedies available for breach of the particular obligation. So the traditional categories of obligation and their associated rules form a coherent set of norms directed at socially valuable ends.

The fundamental human values and socially valuable ends “that underlie and inform the traditional common law rules are those associated with classical liberal political philosophy,” according to John.20 This means that there is a “preference for private ordering over imposed decisions as to collective welfare [that] has a strong moral as well as economic justification.”21 Individual autonomy is to be respected, so people should be left to pursue their own conceptions of the good life through free market exchanges. “By this view, the function of the state is to facilitate individual choice—not to impose any particular set of values on citizens... The role of legal institutions is to define the area of freedom or autonomy within which each individual citizen is entitled to pursue his or her own ends without responsibility for adverse effects on others.”22

18 At 268-271.
19 Article 4, above n 4, at 650.
20 Article 3, above n 3, at 273.
21 At 272.
22 At 272.

John goes on to describe how classical liberal premises shaped the contours of 19th century contract law,23 fiduciary duties,24 and the intentional torts.25 In all of these areas respect for individual autonomy is playing a very important role, he claims. However, there is one part of the 19th century law that he acknowledges does not fit this pattern: negligence. Negligence is not concerned with respecting individual autonomy but with limiting autonomy; it imposes a general duty to avoid foreseeable harm to others.26 As accidental deaths and injuries increased with the industrial revolution, the courts wanted to allow some deserving victims to claim compensation, but without making the action so broad that productive enterprise would be stifled.27 The scope of the negligence action widened once liability insurance became common, but this turned out to be a very inefficient and capricious way of compensating victims. So in New Zealand the Accident Compensation Scheme eliminated the action of negligence causing personal injury in 1974.28 John argued that there was so little scope for negligence left that this tort should have been completely abolished in New Zealand in 1974.29 But it was not, and this led to trouble.

Starting in the mid-1970s, John tells us, New Zealand courts turned against much of this 19th century law and the classical liberal values that lay beneath it:30

In the last quarter of the twentieth century the inherited rules of common law and equity that defined the incidence and content of the various heads of civil obligation under our law and the remedial consequences that follow from their breach came under attack for being too rigid and insufficiently responsive to the current needs, values and aspirations of New Zealand society. ‘Fairness’ and ‘relevance’ became the fashionable touchstones, and we were instructed by prominent judges, serious academics, and enthusiastic law reform agencies, that the fundamental and overriding purpose of our legal system is to achieve substantively ‘fair’ results on the facts of individual cases.

23 Article 4, above n 4, at 639.
24 At 641-642.
25 At 643-645.
26 At 645.
27 At 646.
28 At 646-647.
29 At 651.
30 At 633. See too Article 3, above n 3, at 254, 258.

The judges saw themselves as having the duty to achieve this modernization of the law, not parliament.31 Rather than the values of classical liberalism, new values were to be advanced under this rubric of “fairness”:32

The moral convictions that in fact appear to underlie and inform the ideal of fairness display a strongly paternalistic, communitarian sense... Viewed from this perspective, the purpose of the civil law of obligations is simple and straightforward—the object is to protect citizens’ ‘reasonable expectations’ of security for their interests, and uphold minimum standards of moral behaviour in their dealings with others.

The stress is no longer upon respecting individual autonomy as reflected in obligations voluntarily undertaken. It shifts instead to obligations imposed on parties by courts in the name of fairness and concern for the interests of others. Consequently orthodox contract rules are weakened,33 while the tort of negligence, which was an anomaly in the 19th century precisely because it allowed the courts to impose obligations, is enthusiastically expanded:34

[T]hose of us who, in 1974, saw no future for the tort of negligence, reckoned without the judges. Many judges have a strong attachment to the law of negligence – the duty of reasonable care provides the perfect vehicle for the invigorating work of imposing their own moral standards on the community while relieving cases of individual hardship.

Equitable remedies and fiduciary duties are also expanded far beyond their traditional borders in the name of fairness,35 and rules regarding the traditional remedies are abandoned because they impede the goal of fairness.36 As John summarizes this trajectory:37

...New Zealand judges sought to achieve [fairness] through expansive application of tortious duties of reasonable care; equitable concepts of estoppel, unconscionability and fiduciary duty; unjust enrichment and implied contractual terms. And if different obligations, variously derived from contract, tort and equity, are perceived as serving essentially the same purpose and are directed at essentially the same sort of conduct, it seems anomalous and unfair if the remedies available

31 Article 3, above n 3, at 258.

32 At 261.

33 At 262 and Article 4, above n 4, at 634.

34 Article 4, above n 4, at 648. See too Article 3, above n 3, at 262.

35 Article 3, above n 3, at 262-263 and Article 4, above n 4, at 642.

36 At 264 and Article 4, above n 4, at 634.

37 Article 4, above n 4, at 634. See too 635.

to a judge in the event of breach must vary according to the historical source of the obligation. Since the ultimate objective in every case is to secure an outcome that is fair and just to both parties, the judge must be free to issue the particular remedy that is most ‘appropriate’ for that purpose, guided only by a non-exhaustive and contradictory list of ‘relevant factors.’

John is strongly of the view that these changes made by the New Zealand courts are a mistake. One reason for his rejection has been canvassed earlier: the changes are achieved by judicial activism which undermines the rule of law and the benefits provided by legal formalism such as certainty, predictability, and coordination. A second reason is that the shift away from formalism and towards fairness entails significant economic costs:38

Individualised justice comes at a high price. Substitution of vague discretionary standards and lists of relevant ‘factors’ for firm rules means that litigation becomes increasingly complex, protracted and expensive, and the incentive to appeal an adverse decision becomes stronger. Even where it is clear that a plaintiff has a good cause of action against a principal defendant, uncertainty as to the law’s response in terms of remedies, apportionment and contribution hampers settlement and encourages recourse to litigation.

A third reason is that John is convinced that the old classical liberal values and goals which form the roots of 19th century civil law need to be defended, not abandoned. The old values are more desirable than the new values which seek to replace them. After all, where do these new values come from? In his first article he describes some of them as “socialist,”39 but by the third article he has softened the description of others to “communitarian.”40 The implication is that John views them with distrust and distaste, regardless of their current popularity:41

Those of us who favour return to a more predictable rule-based system of civil liability must recognise that appeals to tradition, certainty, and the associated benefits of administrative efficiency and reduced costs, do not have the same emotive force and popular attraction as a general appeal to fairness and substantive justice. So if the traditional formal categories of civil liability and their associated remedial regimes are to be preserved and defended, we must be able to demonstrate that they reflect and serve quite distinct social purposes which remain worthy

38 At 635. See too Article 3, above n 3, at 266.

39 Article 1, above n 1, at 178.

40 Article 3, above n 3, at 261, 273.

41 Article 4, above n 4, at 638.

of promotion so that something of real value will be lost if the rules associated with those formal categories are abandoned or eroded.

John’s dissatisfaction with the contemporary New Zealand move away from legal formalism and classical liberalism gives his jurisprudence an elegiac and exasperated tone. He laments the loss of a very valuable body of law which was constructed by wise judges in the past, but which is today being destroyed by misguided modern judges. He cannot understand why these modern judges persist in what seems to him to be an obvious error with demonstrable serious negative consequences. By the time he writes the fifth article, his exasperation is such that he gives up on traditional common law judges and advocates moving to the European model of specially trained judges. The reason is that selecting judges from among the top barristers turns out to be part of the problem. It produces judges who are intelligent, articulate, confident and competitive, and who are therefore disinclined to simply follow the rules laid down:42

On appointment to the bench, many are not content to serve as mere custodians of the legal system focusing on consistent application of settled norms to careful findings of fact. Instead they want to be architects of the legal system and engage with high level philosophy, political theory, economics, sociology and ethics as they actively shape the law to conform with their perceptions of society’s needs.

What we need instead are modest technician-judges who self-consciously embrace a craft tradition that stresses fidelity to the law, and who reject the lure of broader, more glamorous enterprises.

1.3 Bills of Rights are Undesirable

In three of the five articles discussed in this chapter, John manifests a strong suspicion of bills of rights. Prima facie, this is odd. Bills of rights are favoured by the classical liberal tradition, and he approves of this tradition when it generates 19th century civil obligations and remedies. Moreover, in his first article he identifies “classical liberalism” and its values of individual autonomy and self-respect as the political philosophy underpinning the New Zealand Bill of Rights (although he thinks that this Act is also contaminated a bit by “socialist views.”)43 Given their liberal pedigree, why does he say that bills of rights are a bad thing?

He has two major reasons. The first is that strong bills of rights (i.e. bills which are constitutionally entrenched and which render inconsistent statutes invalid) give

42 Article 5, above n 5, at 192.
43 Article 1, above n 1, at 178-179, 190-192.

courts the final word over legislatures. This destroys the supremacy of parliament and undermines democracy.44 Second, bills of rights encourage activist judges. They are constantly tempted to expand the meaning of the enumerated rights in order to better protect individual liberty. “Formal guarantees of fundamental rights in constitutional documents encourage judges to discover additional rights that are somehow ‘implicit’ or ‘embedded’ in the express guarantees.”45 However, such interpretive gymnastics undermine legal formalism, and threaten to let the camel get his whole body into the tent:46

New Zealand judges will be drawn into making the kinds of overtly political and highly contentious value choices that so preoccupy their North American counterparts. This will be welcomed by barristers, and by judges committed to changing the law to conform with their perceptions of current values and needs. However it can only be bad for the judiciary as a whole and for the public at large.

It might be thought that a weak bill of rights such as New Zealand’s is immune from such criticism, but John points to Baigent’s Case47 where the New Zealand Court of Appeal “held that a breach of the New Zealand Bill of Rights Act 1990 gives rise to a new civil cause of action in public law which lies directly against the Crown and may attract a remedy in the form of an award of monetary compensation.”48 This judicial creation of a wholly novel remedy messes up the old law on Crown liability,49 and is not justified by the precedents cited or by the history and wording of the Act,50 John complains. It is judicial activism pure and simple.

What responses does John recommend to deal with the dangers posed by bills of rights? The response in his first article was to draft the sections of the New Zealand Bill of Rights more narrowly so as to create more modest rights which are carefully calibrated to achieve the liberal goal of individual self-respect without giving the judges scope to go wild with interpretive distortions.51 His response in the fifth and final article is more radical: “Parliament should repeal the New Zealand Bill of Rights Act 1990 and take care not to fall into the trap again of attempting to regulate behaviour by enacting vague open-ended standards that leave judges with

44 Article 5, above n 5, at 183-184.

45 At 185-186.

46 Article 2, above n 2, at 203.

47 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667.
48 Article 2, above n 2, at 188.

49 At 200.

50 At 190-193, 196, 197.

51 Article 1, above n 1, at 194.

virtually unconfined discretion at the point of application.”52 On the reasonable assumption that this was not going to happen, John made another radical suggestion: redraft the Bill of Rights so that its underlying political philosophy is modern liberalism, rather than classical liberalism. After all, if you really want to achieve fairness and substantive justice, you are not going to do so with the present Act, which “did nothing to arrest or mitigate the disastrous social consequences of the massive increase in income inequality that New Zealand experienced in the late 1980s and 1990s as a result of the aggressive free market economic policies pursued by successive governments.”53 John concludes:54

If you really believe that judges have a valuable role to play in advancing the cause of social justice in this country, you should not settle for the limited catalogue of negative rights presently guaranteed by the New Zealand Bill of Rights Act 1990. You should be lobbying hard for the New Zealand Bill of Rights Act, and any future entrenched Bill of Rights, to be extended to include positive economic and social rights such as the right to work, rights to adequate food and housing, and rights to reasonable standards of medical care and education.

Is this exasperated tongue-in-cheek sarcasm, or evidence of a genuine shift to a political philosophy that sees state intervention in the economy, rather than trusting the free market, as necessary to achieve the public good? I think the latter, based on the evidence of these passages in which he reflects upon New Zealand’s legal and social history:55

Judicial review of legislation for compliance with negative rights affording protection for individuals against an aggressive state fosters an unhealthy distrust of government and the exercise of state power... It encourages a ‘small government’ model and a suspicion of centralised authority. Yet for most of New Zealand’s history the central government has commanded respect as a positive force for good rather than a potential source of oppression.

And again:56

52 Article 5, above n 5, at 191.
53 At 189.

54 At 193. See too 195. John’s position here mirrors American President Franklin Delano Roosevelt’s attempt in 1944 to enact what he called a “Second Bill of Rights” which featured economic rights. See Cass Sunstein The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (Basic Books, New York, 2004).
55 At 187.
56 At 195.

You may object that such action would quickly return us to the boring social conformity of the 1950s and 60s. This is true. But at least during that period in New Zealand’s history everyone who wanted to work had a job, mothers of young children did not have to work to keep households afloat, the rates of violent crime and theft were much lower, everyone had prompt access to a reasonable level of health care, the state system of free education was both free and educational, inequality of income was much less marked, and certainly there was no permanent underclass resigned to life as beneficiaries of the state.

Again the tone is elegiac, but instead of lamenting the loss of 19th century classical liberal values, John has progressed to lamenting the loss of mid-20th century modern liberal values.


Critical jurisprudence would take issue with John’s valorization of the classical liberal political tradition and his claim that it had a beneficial influence on the law of the 19th century. The distinctive characteristic of critical jurisprudence is a concern with the ways in which the law operates to maintain the unjust domination of some groups in society over other groups. Critical jurisprudence is particularly interested in the ways in which this unjust domination is achieved through the operation of unnoticed background ideas. Ideas that operate in this way are called “ideology”, and critical jurisprudence sees classical liberalism as a major source of ideology in the law. That is, it is claimed that many of the basic concepts, distinctions, and values of classical liberalism operate through the law to bring about the unjustifiable and systematic subordination of some groups in society by other groups.

(a) Bills of rights

Critical jurisprudence joins John in manifesting a strong dislike and distrust of liberal bills of rights, but this is not because critical jurisprudence agrees that bills of rights are threats to parliamentary democracy and legal formalism. Rather critical jurisprudence sees bills of rights as saturated with classical liberal background ideas that operate ideologically to disadvantage subordinate groups in liberal societies. For example, the classical liberal political tradition greatly valued the individual, and consequently liberal bills of rights tend to consist of individual rights. But critical jurisprudence argues that individual rights cannot respond adequately to systematic and enduring patterns of group disadvantage,

such as racism and sexism.57 A person might have an individual right not to be discriminated against, but if this right can only be vindicated by finding another individual who intended to discriminate against the person, and any remedy granted applies only to the harmed individual, then any systematic and historical pattern of discrimination within a society or organization will be hard to break down. That is why group rights and remedies (such as affirmative action) must be recognized. But the liberal tradition values the individual over the group, and is consequently unsympathetic towards group rights.

The influence of classical liberalism on bills of rights can also be found in their stress on civil and political rights rather than economic rights, and on negative liberty rather than positive liberty. Negative liberty is achieved when others leave you alone; positive liberty is achieved when you have different options for action available to you. The state can usually respect negative liberty by doing nothing, but positive liberty will often require state action and the commitment of resources. Critical jurisprudence argues for strong economic rights and a positive conception of liberty. It holds that classical liberalism and the bills of rights influenced by classical liberalism respond to the particular liberty concerns of those who are already well-housed, well-fed, well-resourced and well-educated, but not to the liberty concerns of those who do not have the resources necessary for a fulfilled life. John himself came to accept this point, as we saw earlier.

The classical liberal tradition emphasized the role of rights in maintaining the public/private distinction. In liberal societies, all of social life was no longer potentially subject to oversight and regulation by the monarch. Instead there was a limited public zone in which legitimate state coercion was exercised, and a large private zone which the state had to be kept out of so that individual freedom could be exercised there. Many of the individual rights in liberal bills had the job of policing the boundary between these two zones, and preventing the state from entering the private zone where free speech, freedom of religion and free contract reigned. For classical liberals the public/private distinction was designed to protect the individual from the state, which was believed to pose the greatest threat to individual freedom. This was why the rights set out in liberal bills of rights were only good against the state.

Critical jurisprudence’s most fundamental critique of the liberal public/private distinction is that it is ultimately incoherent, and that the state by necessity is

57 See for example Morton Horwitz “Rights” (1988) 23 Harv CR-CL Law Rev 393 and Nicola Lacey “From Individual to Group? A Feminist Analysis of the Limits of Anti-Discrimination Legislation”, in Nicola Lacey Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing, Oxford, 1998) 19.

always acting to advance a contestable conception of the good in the private zone.58 But critical jurisprudence also makes the less fundamental critique that classical liberalism’s public/private distinction and its consequent fixation on the state as the prime danger to individual freedom renders these liberals less able to see, or to see as important, the massive dangers to individual freedom that arise within the private zone itself. Large concentrations of economic power and wealth in the private zone can be used to exploit others, to distort democratic processes, and to threaten the environmental conditions required for human life. The dangers here can be even more significant than the danger posed by the state, but for a classical liberal what happens in the private zone is the product of free choices and so it is prima facie legitimate. Consequently, any government regulation of private property, freedom of contract, and market exchanges is to be distrusted as the thin edge of the wedge of tyranny. But critical jurisprudence would reply that state action which regulates the private zone here is the opposite of tyranny—it protects people from tyranny by powerful private actors.

It is true that modern liberalism moved away from classical liberalism’s positions on some of these matters. Some modern liberals were in favour of more individual economic rights and defended a positive rather than negative conception of liberty, for example.59 But modern liberalism only became dominant during the middle years of the 20th century. In the 19th century, to which John looks with approbation, classical liberalism was in the ascendancy and its influence on bills of rights was profound. This was the Lochner era in the United States where labour legislation to protect vulnerable workers and economic regulations to advance the public good were routinely struck down as unconstitutional violations of the American Bill of Rights and the individual rights to freedom of contract and private property that it protected. For critical jurisprudence, this is classical liberalism again operating ideologically through the Bill of Rights.

(b) Contract law

John admires how 19th century English contract law strongly reflected the classical liberal value of individual liberty, but critical jurisprudence would remind us that the 19th century was a time when a large industrial proletariat lived and worked in horrendous conditions in the United Kingdom. Were their leases, rooming

58 See, for example, Paddy Ireland “Property, Private Government, and the Myth of Deregulation” in Sarah Worthington (ed) Commercial Law and Commercial Practice (Hart Publishing, Oxford, 2003) 85 and Michael Robertson “Reconceiving Private Property” (1997) 24 Journal of Law and Society 465.

59 See for example Charles Reich “Beyond the New Property” (1990) 56 Brook L Rev 731. See too the references to Roosevelt’s Second Bill of Rights, above n 54.

house licenses and employment contracts free market choices that expressed their individual autonomy and self-respect? Classical liberals insisted that contracts be free, not coerced, but they set the threshold for coercion high enough that the economic exploitation of poor and desperate people would not trigger it and vitiate the contracts they had made. Karl Marx was making this point when he described the proletarian in the 19th century as a “man who is compelled to sell himself of his own free-will.”60 Trade unions, which might have reflected the autonomy and self-respect of these workers more, were illegal in the United Kingdom for most of the 19th century.

(c) Property law

Similarly, in 19th century New Zealand the high value given to individual private property by the classical liberal tradition operated through the land law and the Native Land Court to transform Maori collective native title into individually owned titles to land. These newly minted individual titles were soon transferred by contract to Europeans to pay the debts the new market society encouraged individual Maori to assume.61

In summary, classical liberal values and concepts operated through contract and property law and bills of rights in the 19th century to exploit and oppress subordinated groups. Critical jurisprudence would therefore deny that they deserve the admiration they garner in John’s jurisprudence.

2.2 Objections to Textualism

A critique of John’s defence of legal formalism is implicit in Stanley Fish’s rejection of textualism. This rejection takes a very strong form. Fish is not saying that textualism is difficult to put into practice, or that it leads to bad consequences. He is saying that textualism is impossible, that it is an incoherent position. Therefore nobody puts it into practice, and it has never had any consequences.62 It is important to emphasize immediately that Fish is not denying the existence of legal texts with meanings that are clear and compelling and understood by all in the same way—i.e. objective legal meanings. What Fish does reject is the textualist

60 Karl Marx Capital Book 1, ch 33 in C.B. Macpherson (ed) Property: Mainstream and Critical Positions (University of Toronto Press, Toronto, 1978) 59 at 68.

61 See Stuart Banner “Conquest by Contract: Wealth Transfer and Land Market Structure in Colonial New Zealand” (2000) 34 Law and Society Review 47.

62 See Stanley Fish “There Is No Textualist Position” (2005) 42 San Diego L Rev 629 and “Intention Is All There Is” (2008) 29 Cardozo L Rev 1109. For an expanded description and analysis of Fish’s position, see Michael Robertson Stanley Fish on Philosophy, Politics, and Law (Cambridge University Press, Cambridge, 2014) at ch 8 “Legal Formalism”.

account of how these objective or literal meanings come to exist, and he seeks to provide a more adequate explanation of them. His explanation is that a group of people similarly trained and engaged in similar practices will be socialized to share background beliefs, values, and organizing categories, and this shared background explains why the members of the group will often see the same clear and compelling meaning in a text. Fish would reject the charge that his explanation makes textual meaning multiple and subjective, because he would deny that the background that delivers textual meaning is unique and idiosyncratic. Instead it is social and shared, and this is how it can provide the objectivity law requires. Consequently:63

[W]hen you come to the end of the anti-formalist road, what you will find waiting for you is formalism; that is, you will find meanings that are perspicuous for you, given your membership in what I have called an interpretive community, and so long as you inhabit that community (and if not that one, then in some other), those meanings will be immediately conveyed by public structures of language and image to which you and your peers can confidently point.

Fish defends intentionalism, which takes aim squarely at the central claim of textualism that you can ascertain the meaning of a text by semantics and syntax alone, without considering authorial intention at all. According to intentionalism, for a meaningful text to exist the reader must be assuming that it was produced by an author, and that the author intended it to mean something. Therefore you can never do without an author and authorial intention in the way textualism claims:64

Words alone, without an animating intention, do not have power, do not have semantic shape, are not yet language; and when someone tells you (as a textualist always will) that he or she is able to construe words apart from intention and then proceeds (triumphantly) to do so, what he or she will really have done is assumed an intention without being aware of having done so.

Textualists, naturally, would deny that they are doing this, and to support this denial they invent thought experiments in which English words appear in situations where it seems obvious that no author is involved. The argument is that because these shapes form English words which we can read in the absence of any author, this proves that words can have a textual meaning independently of

63 Stanley Fish The Trouble With Principle (Harvard University Press, Cambridge, 1999) at 294 295. See too Stanley Fish Doing What Comes Naturally (Duke University Press, Durham, 1989) at 26.
64 Fish “There Is No Textualist Position”, above n 62, at 632-633. See too 635.

any authorial intention. These thought experiments have a lot of intuitive power. It seems obvious that we can read the imagined texts, even though they were produced in a random, accidental, and authorless way. The intentionalist counter-argument is that the textualist has not conducted his thought experiment carefully enough. If one genuinely did succeed in making the author disappear, then the text would disappear too, leaving only random marks without sense.

Steven Knapp and Walter Benn Michaels considered the thought experiment of a person walking on a beach and seeing a stanza of Wordsworth’s poetry written in the sand. As the waves wash up the beach and recede, another stanza appears in the sand. Is this an example of a text which is meaningful without an author? They say no:65

You will either be ascribing these marks to some agent capable of intentions (the living sea, the haunting Wordsworth, etc.) or you will count them as nonintentional effects of mechanical processes (erosion, percolation, etc.). But in the second case—where the marks now seem to be accidents—will they still seem to be words?...As long as you thought the marks were poetry, you were assuming their intentional character. You had no idea who the author was, and this may have tricked you into thinking that positing an author was irrelevant to your ability to read the stanza. But in fact you had, without realizing it, already posited an author. It was only with the mysterious arrival of the second stanza that your tacit assumption (e.g. someone writing with a stick) was challenged and you realized that you had made one. Only now, when positing an author seems impossible, do you genuinely imagine the marks as authorless. But to deprive them of an author is to convert them into accidental likenesses of language. They are not, after all, an example of intentionless meaning; as soon as they become intentionless they become meaningless as well.

The textualist claim is that because we can understand the words in such thought experiments, this proves that we do not need authorial intention to understand the meaning of a text. The intentionalist counter-claim is that we are only able to understand the words produced in these thought experiments—we are only able to see them as words at all—because we have assumed that they were produced by an author with a certain intention. Who might be the assumed authors of the unusual texts in these thought experiments? In Knapp and Michaels’ wave poem example, the first assumed author is, naturally enough, an unknown person who

65 Steven Knapp and Walter Benn Michaels “Against Theory” in William Mitchell (ed) Against Theory. Literary Studies and the New Pragmatism (University of Chicago Press, Chicago, 1985) 11 at 16.

earlier wrote the words in the sand with a stick. But that assumption is both revealed and demolished by the appearance of the second stanza. Who might the author be now? One might conclude that the words are being produced by an unknown person who is using unfamiliar technology which enables him to generate words at a distance. Or one might turn away from human authors and, as Knapp and Michaels suggest, conclude that the author was Wordsworth’s ghost, communicating from the other side, or that the sea itself was trying to communicate a message. Intentionalism places no a priori limits on who or what the intentional agent producing the text is. That agent need not be a human being or collection of human beings. One can even stipulate or hypothesize an author other than the actual author. One can also ascribe to the actual author an intention other than the one you know the author really had. The intentionalist argument is only that some agent with an intention must be assumed as author or we will not perceive a meaningful text.

Fish agrees with the intentionalist analysis of Knapp and Michaels:66

[I]n order to hear sense in arbitrarily produced sounds and marks we have to hear those sounds and marks within the assumption that they have been produced by some purposeful agent; that is, we have to hear them as not arbitrarily produced, even if to do so we must attribute purpose and intention to the waves or to the wind or to the great spirit that rolls through all things.

Fish also agrees with Knapp and Michaels that if you really do succeed in expunging from your mind the belief that the marks before you were produced deliberately by some author in order to communicate some meaning, the result will be that you experience them as meaningless, rather than as words:67

Suppose you’re looking at a rock formation and see in it what seems to be the word ‘help’. You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally,

66 Stanley Fish There’s No Such Thing as Free Speech (Oxford University Press, New York, 1994) at 182. See too Fish “There Is No Textualist Position”, above n 62, at 635: “[L]exical items and grammatical structures by themselves will yield no meaning—will not even be seen as lexical items and grammatical structures—until they are seen as having been produced by some intentional agent.”

67 Stanley Fish “Intentional Neglect”, New York Times, July 19 2005, p A 21. See too Fish “There Is No Textualist Position”, above n 62, at 632; Fish Doing What Comes Naturally, above n 63, at 295-296; Fish “Intention Is All There Is”, above n 62, at 1111.

and therefore you no longer believe that it’s a word, a bearer of meaning. It may look like a word—it may even seem to be more regularly formed as such than the scratchings of someone who is lost—but in the absence of the assumption that what you’re looking at is a vehicle of intention, you will not regard it as language.

So according to intentionalists, textualists are not and could not be looking only at contract or statutory language (sentence meaning) and ignoring authorial intention (speaker’s meaning), regardless of what they profess themselves to be doing. When a textualist claims to be attending to syntax and semantics alone, he is misdescribing his practice, because the practice he claims to be performing is impossible. The textualist may be ignoring the actual intentions of the author (the legislature or the drafter of the contract), and may be assuming instead that the author intended the words used to have their most conventional dictionary meanings. Or the textualist may be assuming an author other than the actual author, such as “the reasonable man”. But whichever path he is following it is not textualism, because an author with intentions is being assumed, not ignored in favour of semantics and syntax alone. However, it is important to stress that this new description of the practice of textualists does not imply any criticism of the practice itself. There may be good reasons to move from actual to hypothetical authors in law, or to ascribe non-actual intentions to actual authors, such as the rule of law reasons which John values. But a judge who does that is not the formalist judge he admires, and looks more like the activist judge he fears.


A second critique raised by Fish’s work is directed at the Manichean character of John’s jurisprudence. For John, legal formalism (suitably qualified) is the only proper approach to law. An approach which emphasizes fairness and substantive justice over the neutral application of pre-existing rules with objective meanings is wrong and dangerous and must be fought tooth and nail. John’s orientation here fits well with much of jurisprudence in which hard dichotomies and dualisms abound. In the West, two stories about the nature of law have competed since Plato and the sophists. According to one story, law is rational, coherent, consistent, and predictable. According to the other story, law is malleable, changeable, inconsistent, and rhetorical. This contest became especially heated in the 20th century when the legal realists and CLS challenged the views of legal positivists and legal formalists.

But Fish joins other legal theorists in arguing that this familiar jurisprudential dilemma of deciding between two incompatible stories about law should be

abandoned as misguided and impossible.68 Fish argues that Western societies have assigned two inconsistent and incompatible jobs to law— the rule of law job and the substantive justice job. These jobs pull in opposing directions because while the rule of law job stresses the goals of certainty, consistency, predictability, and continuity with the past, the justice job stresses the goals of flexibility, context-sensitivity, an ability to adapt to new realities, and the importance of achieving fair and sensible results. If law wants to retain its institutional power and prestige, Fish argues, it must find ways of performing both of these inconsistent and incompatible jobs.

Because the existence of these two competing law jobs is longstanding in liberal societies, according to Fish’s analysis, it is instructive to consider what strategies have been adopted to deal with the conflict. One possible response is to abandon one of the two jobs in order to eliminate any messy contest between them at the heart of law. On this approach, one of the law jobs is argued to be the true or proper job of the law, and the other is denigrated as a dereliction of law’s real task or as an impossible dream. The legal formalist opts for the rule of law job as the only true one. This is John’s preferred strategy, and on his account it was the strategy adopted in the UK in the 19th century. But on Fish’s account it will turn out to be impossible to eliminate one of the two jobs successfully. John’s own jurisprudence reveals the difficulty. His qualification of legal formalism is a backhanded recognition that the substantive justice job cannot be ignored, as is his puzzled observation that the top judges in New Zealand and the UK Privy Council can’t seem to help getting seduced by the substantive justice job.69

Another possible response is to retain both jobs, but to avoid a messy contest between them by providing a separate territory for each. This is the approach H.

L. A. Hart took in chapter 7 of The Concept of Law.70 He saw the legal formalists as describing what happened when the facts of a legal dispute fell within the core of a rule (the rule of law job prevailed), and the legal realists as describing what happened when the facts fell within the fuzzy penumbra of a rule (the substantive justice job was able to prevail). Both law jobs are acknowledged on this approach, but they don’t conflict because their performance is required in completely different contexts. Moreover, Hart believed, the separate territories of the two jobs were not equal in size. In the typical case, he thought, the facts would fall within

68 See Michael Robertson “Telling the Law’s Two Stories” (2007) 20 CJLJ 429; Robertson Stanley Fish on Philosophy, Politics, and Law, above n 62, at ch 10 “Fish’s Positive Account of Law”.
69 Article 3, above n 3, at 273.
70 Hart, above n 10.

the core of a rule. Penumbral cases were less common in everyday life, though they might be more common in the higher courts.

A third response rejects both of the first two responses. It denies that one of the law-jobs can be eliminated, thus leaving the other job in occupation of the entire territory of the law, and it also denies that each of the law jobs can be assigned a separate territory to avoid clashes between them. On Fish’s analysis, each of the law jobs is capable of making territorial claims over any part of the legal field. That is, whenever a legal dispute arises, it will be possible to argue that its resolution requires performing either the rule of law job or the substantive justice job. The contest between law’s two basic jobs is therefore not resolved logically but rhetorically. Two stories about what the law should do will compete to be the most plausible and persuasive.

Sometimes the substantive justice job can be advocated for openly. This is the situation that John focuses on in his criticisms of some of the judges on the New Zealand Court of Appeal. They appeal explicitly to fairness and justice as the basis for their decisions, but as John has forcefully demonstrated, this open approach is asking for trouble. You face objections that you can’t define what “fairness” and “justice” are; you face objections that seeking fairness and justice entails significant economic costs; you face objections that you are acting in an ad hoc manner; you face objections that you are violating the rule of law. For these reasons, the substantive justice job is not typically advanced by such open advocacy. Instead, judges find that it is better to employ more indirect rhetorical strategies to advance the substantive justice job.

One indirect strategy is to do the substantive justice job, but to describe what you are doing as falling under the rule of law job. This strategy can be pursued by selecting from among the available existing rules the one which delivers the result which substantive justice requires. Fish reports that there are many ways in which contract law comes to contain competing rules that provide the flexibility which enables the justice job to be done without generating a direct conflict with the rule of law job:71

You develop a taxonomy of contractual kinds, one of which violates the principles of the taxonomy; you produce a document (the Restatement) that, in the guise of clarifying the law, presents its contradictions in a form that further institutionalizes them; develop and expand notions like promissory estoppel, duress, incapacity, unconscionability, and unjust enrichment and then expand them to the point where

71 Fish There’s No Such Thing as Free Speech, above n 66, at 163.

there is no action that cannot be justified in their terms; you invoke the distinction between public and private, even as you allow public pressures to determine the distinction’s boundaries.

Or this indirect strategy can be pursued by manipulating a single formal rule so that it delivers the result which substantive justice requires. For example, Fish points out that even when judges acknowledge that they must respect the formal contract rule requiring consideration, they have shown great creativity and skill in finding consideration to be present (when initially it seemed to be absent) in order to reach a morally satisfying result in the particular circumstances of the case before them:72

As the case history shows...judges have no difficulty recharacterizing the shape of consideration so that it supports the conclusion they wish to reach. Indeed, directions for performing this interpretive feat are built into contract doctrine itself, which turns out in my analysis to be as porous and plastic as poetry or abstract art.

I think this reveals a problem with John’s analysis. He critiques decisions in which there is open advocacy of fairness and justice rather than following established legal precedents, and thinks that he has thereby defended formalist decision-making. But as Fish has noted, judges can advance their conception of what fairness and justice requires just as well by using formalistic legal reasoning as by abandoning it. This means that formalism is not a wall against substantive justice, but instead can be a device used to achieve it. The camel is already inside the tent, even though it is camouflaged as something else.

At one point John does briefly advert to this other way of doing the substantive justice job:73

If [it] cannot be done openly, a judge who is determined to achieve a substantively just result between the parties will strain logic to distinguish inconvenient precedents, or manipulate the facts to bring them within or outside the rule.

What is the nature of John’s objection here? If he is simply disagreeing with the interpretation that his opponent has made of the facts or a precedent, then he has failed to set up a strong opposition between the rule of law and judicial activism, which is what he needs to do. It is one thing to say: The precedent will be ignored here in order to achieve justice, and quite another to say: The precedent will

72 At 21. See too Fish’s detailed analysis of the consideration requirement at 156-168.
73 Article 3, above n 3, at 257.

be honoured here because the precedent, correctly understood, delivers justice. Ignoring a relevant precedent can be described as a serious violation of a lawyer’s training, but offering an interpretation of a relevant precedent is a completely proper thing for a lawyer to do. Disagreement among lawyers as to the correct interpretation of the precedent is just business as usual, and does not constitute ignoring a precedent or engaging in judicial activism.

So John must be objecting here that any disagreement about the meaning of a particular precedent is improper because the correct meaning of that precedent is determined by syntax and semantics, and cannot be shifted by rhetoric. He is objecting to using interpretation to change the literal or objective meaning of the rules and precedents. But this is textualism, and Fish has argued that such textualism is impossible. When widespread agreement exists among members of the interpretive community of lawyers about the meaning of a precedent, Fish says, this is the contingent product of the present shape of their shared background. This particular background was put in place by rhetorical successes, and although it may stay in place for a very long time and thus make the meanings it delivers very stable, it is always possible to change the background by a new rhetorical success. When this happens the perceived meaning of the precedent will change. The precedent will either have a new clear meaning, or hitherto unseen ambiguities will appear.

The reworking of past precedents in order to do the substantive justice job, but in a way that preserves the rule of law story rather than undermining it, is one of the ways in which both of the law’s incompatible jobs can be successfully performed. The process was described well by the legal realist Karl Llewellyn, who insisted that stare decisis was really a mechanism which enabled the law to change while still telling a persuasive story about its continuity and stability. A precedent is not ignored or overruled; rather it is reshaped by legitimate techniques with an eye to the needs of the present. Then the past precedent with its new content is declared to compel the result in the present case. Thus the decision can be presented as governed by the neutral application of a rule established in the past, even though it really is a response to current pressures.74 Fish echoes Llewellyn’s insight:75

[R]ather than the past controlling the present, the present controls the past by providing the perspective from which the two must be brought into line. The truth about precedent, then, is the opposite of the story we tell about it; precedent is the process by which the past gets produced by the present so that it can then be cited as the producer of

74 Robertson “Telling the Law’s Two Stories”, above n 68, at 440-442.
75 Fish Doing What Comes Naturally, above n 63, at 514-515.

the present. It is in this way that the law achieves what Ronald Dworkin calls ‘articulate consistency’, a way of thinking and talking about itself which creates and re-creates the continuity that is so crucial to its largest claim, the claim to have an unchanging center that founds its authority. Articulate consistency is not a fact, but an achievement, something that is forever being wrested out of diverse materials which are then being retroactively declared always to have had its shape.

Fish marvels at the way the law is able to reshape the past, efface the evidence of that reshaping, and then declare itself compelled in the present case by the past it has just transformed. This, he says, is:76

[T]he story of rhetoric, the art of constructing the (verbal) ground upon which you then confidently walk.... Scheiber calls this the law’s ‘amazing trick’, the trick by which the law rebuilds itself in mid-air without ever touching down.

But the trick is amazing because it is difficult; it requires skill and favourable circumstances and cannot always be achieved. Sometimes—often—rhetorical efforts to reshape the law’s past fail, and this is why the rule of law story is not simply a sham or a “noble lie.”77 However, because the amazing trick is always possible, the ratios of past cases and the meanings of chains of past cases (i.e. legal institutional history) cannot function as the kinds of fixed external constraints upon present legal interpretation that John desires. These things are themselves the products of legal interpretation, and so are neither fixed nor external. Stability is certainly possible in law, but it is always a rhetorical achievement; it is not the product of constraint by forces that repel rhetoric.

So John, I have to conclude that your favoured jurisprudential positions do not stand up to the scrutiny of the people you made me read. The fact that I reach this conclusion is really your own fault. You should have told me to teach civil procedure instead of jurisprudence.

76 Fish There’s No Such Thing as Free Speech, above n 66, at 170.

77 For an expanded description and analysis of Fish’s position, see Robertson Stanley Fish on Philosophy, Politics, and Law, above n 62, at ch 11 “Change and Indeterminacy in Law”.

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