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Buckingham, Donna --- "New Zealand's Legal System: The Principles of Legal Method" [2006] OtaLawRw 14; (2006) 11 Otago Law Review 343


New Zealand's Legal System: The Principles of Legal Method

(by Richard Scragg, Oxford University Press, 2005)

The stated aim of this monograph is to help those who enrol in the LLB degree course "to acquire the skills demanded by a Legal System course in New Zealand". To that end Richard Scragg, a legal method teacher of long standing at the University of Canterbury, provides an overview of the techniques of case analysis, statutory interpretation and argument by analogy, bedded in a New Zealand context. That overview also focuses on the skills which the author considers to demonstrate success in a first year law course - described as both the 'foundation' and 'filter' for the remainder of the LLB degree.

The chapter structure provides an interesting take on how the author views the process of providing such a foundation. The work begins conventionally enough with an explanation of ‘law' and its sources, selected constitutional doctrines and briefly refers to the dichotomy between public and private law, civil and criminal law, common law and equity. Discussion then turns to the nature of common law and the exploration of the analytical tools of ratio, obiter, analogy and distinguishing. An exercise in case analysis provides the next chapter. Then the nature of statute law (its creation and the interpretive process it requires) is addressed, again with an attendant exercise in applying the principles of statutory interpretation. Both exercises are drawn from assessments conducted at the University of Canterbury.

The final two chapters (The Building of a Corpus of Law and Reasoning by Analogy) sit somewhat orphaned at the end of the work. They might more comfortably reside after case analysis, illustrating as they do how individual decisions contribute to a domain of common law legal rules. The rationale for their position might be that the latter chapter provides another model of how to respond to a problem solving examination question. However the chapter title is a little misleading since that reasoning process is not confined to case analysis but is a legitimate aspect of statutory interpretation, as the author briefly notes.

While the work attempts to deliver on both faces of its title (termed by the author as 'knowledge' and 'skills application'), the emphasis is more on the former. The 'knowledge' chapters on common law and statute law are considerably larger than those which rehearse skills-based legal method. This is understandable - as the author argues, such skills can only be understood in their context. Choosing how much of the legal domain to cover in order to make these skills both relevant and accessible inevitably taxes any legal method writer. Here the information/application balance is mostly well-struck and it would be carping to suggest that the work represents something of a missed opportunity to provide more examples to help students embed patterns of legal thinking. The author has elected depth over breadth and the three chapters in which the reader is directed through a response to legal problem solving clearly provide the kind of detailed guidance the author promises.

344 Otago Law Review (2006) Vol 11 No 2

There are some difficulties, perhaps only apparent to other legal method teachers.

Often our major dilemma is choosing an order in which to explain concepts -remaining vigilant to the risk that, in an attempt to keep the material digestible, the explanation of one concept will require the use of another, as yet unexplained. Lapses of this kind are inevitable. While 'distinguishing' is referred to several pages before that concept is explained, overall the chapters show a careful attempt to avoid this kind of pedagogical hump.

Statute law also presents some temporal challenges via the Interpretation Act 1999 and the ensuing revamp of the format of legislation, which has resulted in a statute now quite different in appearance from that enacted prior to 2000. The knowledge chapter on statute law contains a careful explanation of the current format and structure (indirectly attempting to straddle the changes) and reproduces a post-2000 example. Yet the problem statute in the following skills-based chapter adopts the 'old' format without any prior explanation of why the provisions bear little resemblance (in terms of their 'look and feel') to the example so usefully included in the preceding chapter.

In terms of content some aspects, such as Maori customary law, are not addressed (beyond a short reference) on the basis of their "being beyond the scope of the work". This seems self-defeating in terms of an enterprise which purports to provide a sound beginning to an understanding of sources of New Zealand law and legal method.

The content of first year law study varies across the five law faculties or schools and depends to some degree on the jurisprudential preferences of its teachers or their attraction to differing teaching styles. Consequently there is a sense in which a work of this kind is in danger of pleasing nobody by its assumption of homogeneity of approach. However, for this reviewer, many of the issues such an assumption might raise are matters of personal teaching style rather than legal content. The audience of the book is the legal acolyte and evaluation of the content should be approached with this catchment in mind.

From that perspective, and to its credit, the work firmly maintains a student-centred tone. Richard Scragg has provided useful models of legal discourse and some sound advice for beginners in terms of how to structure a response in an examination context. Whilst the writing is an extension of his teaching in one particular institution, his skills-based advice and demonstration of reasoning and interpretive techniques will find a resonance in any other.

D Buckingham, Faculty of Law, University of Otago.

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