Otago Law Review
Last Updated: 16 April 2014
Political Culture and the Rule of Law: Comparing the United States and New Zealand
W Bradley Wendel* I Introduction
Philosophers and lawyers often write about the rule of law as though it means
the same thing in different societies.1 This is understandable
given the methodology of conceptual analysis, which seeks to analyse the concept
with reference to features
that are common to every possible instance of a
society governed by the rule of law. It is probably the case that there is a
notion of legality that is common to all law-governed societies, but the
search for the bare minimum content of the rule of law has
obscured a different
kind of analysis, which is to explore the ways the concept may be instantiated
in actual, living legal systems.
Although it is sometimes observed that
Hart’s jurisprudence provides an account of the English legal system,
Dworkin the American,
and Habermas the German, all of them purport at least to
be providing an analysis of the concept of law that is general across different
conceptions of a legal system.2 An interesting possibility has
received less attention, however, and that is that legal systems that appear to
have a great deal in
common may nevertheless differ in the way they apply or
instantiate abstract ideals such as the rule of law. Differences at the
of conceptions of the more general concept may have considerably greater
practical significance than the criteria that characterise
the concept. The
* Professor of Law, Cornell University; Visiting Fellow, Legal Issues Centre, University of Otago Faculty of Law. I am grateful to David Fischer for extremely helpful comments on a draft of this paper, and to feedback from participants at an Otago Faculty of Law staff seminar.
1 See, eg, Lord Bingham of Cornhill “The Rule of Law” (2007) 66 CLJ 67; Jeremy Waldron “Is the Rule of Law an Essentially Contested Concept (in Florida)?” (2002) 21 Law and Philosophy 137; Joseph Raz “The Rule of Law and its Virtue” in The Authority of Law: Essays on Law and Morality (Clarendon Press, Oxford, 1983) 210; FA Hayek The Road to Serfdom (University of Chicago Press, Chicago 1994) at 80. The locus classicus for lawyers in the common law tradition is Dicey. See AV Dicey “The Rule of Law: Its Nature and General Applications” in Introduction to the Study of the Law of the Constitution (10th ed, Macmillan, London, 1959).
2 Both Dworkin and Rawls have used the
concept/conception distinction to refer to different levels of generality at
which a value can
be understood. Rawls, for example, argues that while all
political theorists may agree that a society should pursue justice, they
disagree about what justice requires in practice – that is, which
conception of the concept of justice ought to be pursued. John Rawls A
Theory of Justice (Harvard University Press, Cambridge (Mass), 1971).
Similarly, in Dworkin’s jurisprudence the task of a judge is to identify
the conception of a value (say, equality) that best fits with and justifies the
past political decisions of a community. See Ronald
Empire (Harvard University Press, Cambridge (Mass), 1985).
in which an ideal is given shape through application over time can be referred to as the political culture of a society.
This paper will take as its starting point a recently published history of rival political ideals and differing political cultures in the United States and New Zealand, David Hackett Fischer ’s book, Fairness and Freedom.3
Most Americans know little about New Zealand, other than thinking of it as a
place of beautiful landscapes, quirky but friendly people,
and rugby fanaticism.
It seems an unlikely subject for a comparison with the United States. Fischer
argues, however, that it makes
an excellent foil for understanding American
political culture because of the similarities in the histories of these two
At first sight, much of New Zealand’s history seems familiar to an
American. Both nations were founded by English-speaking
people in distant
lands. Both began with a heritage of the English language, law, and customs.
Both entered into complex relations
with native populations, Indian and
Māori. Both developed what Frederick Jackson Turner called frontier
large numbers of immigrants, and became more diverse in
ethnicity and religion. Both industrialized and urbanized, and had reform
movements in the Progressive Era and the era of the Great Depression, and in the
restructuring of the late twentieth century. Both
were allies in the great wars
of the twentieth century, and underwent comparable processes of restructuring in
the 1980s. . . . More
important for this inquiry, New Zealand and the United
States are both what Henri Bergson and Karl Popper called open societies.
share democratic polities, mixed-enterprise economies, pluralist cultures,
individuated societies, a respect for human rights,
and a firm commitment to the
rule of law.
Despite these significant similarities, there are profound differences
between the histories of political ideals and modern political
cultures of the
United States and New Zealand. Fischer looks at idiomatic or vernacular
language in the two countries and observes
that New Zealand political discourse
is pervaded by references to fairness, citing examples from Robert
of “a fair go for the ordinary bloke,” to
Winston Peters’ appeal to fairness as a call to national service, to
Green Party’s linkage of fairness and sustainable development.5
Ordinary speech contains numerous idioms for fair or unfair, many of which
are not present in American speech.6 The core of the meaning of
fairness is (1) not taking undue advantage of others; (2) “finding ways to
settle differences through
a mutual acceptance of rules and processes that are
thought to be impartial and honest”; and (3) accepting the legitimacy of
results obtained through fair processes.7 New Zealanders
3 See David Hackett Fischer Fairness and Freedom: A History of Two Open Societies, New Zealand and the United States (Oxford University Press, Oxford, 2012).
4 At xxiii – xxiv.
5 At 6-9.
6 At 12-13.
7 At 18.
about their own political culture tend to use the term equality rather than fairness,8 but they nonetheless do identify something distinctive about their political culture which differs from that of nations with a similar history.
In the United States, by contrast, one finds ambivalence regarding the value
of fairness. While there are prominent historical examples
of an appeal to
fairness, including Theodore Roosevelt’s “square deal” (which
sounds a great deal like Muldoon’s
fair go for the ordinary bloke),
Fischer contends that modern American political culture accepts that “life
is unfair.”9 In particular, the political right often
equates fairness with equality of outcomes, asserting that “ideals of
fair play are hostile to capitalism, destructive of national
security, and dangerous to liberty.”10 Fairness is not the
central organising principle of American public life; that distinction belongs
to ideals of liberty or freedom,
which are endlessly invoked by politicians
across the ideological spectrum. The reason is that the founders of American
by and large, fleeing what they perceived as English tyranny and
religious persecution,11 while
8 Consider the descriptions by a former high-ranking government lawyer and former dean of a law school, and an award-winning historian, respectively. Matthew Palmer identifies egalitarianism, along with trust in government power and pragmatism, as the three constitutive elements of New Zealand political culture. Matthew SR Palmer The Treaty of Waitangi in New Zealand’s Law and Constitution (Victoria University Press, Wellington, 2008) at 278-282. James Belich summarises what he calls the “Pakeha treaty,” a set of informal myths about how life ought to be lived, ie the values of the “ordinary Kiwi bloke.” The elements of the Pakeha treaty are: (1) egalitarianism – “not the absence of class but the absence of extreme class distinctions, class oppression, and direct gentry rule”; (2) harmony, or at least the absence of conflict, among classes; and (3) continuous progress. James Belich Paradise Reforged: A History of the New Zealanders from the 1880s to the Year 2000 (Allen Lane, Auckland, 2001) at
9 Fischer, above n 3, at 23-25.
10 At 27.
11 At 38-47. I do not intend to pursue this point further in this paper,
because I am not a historian and, in any event, it is beyond the scope of
what I will be arguing here, but it is worth observing that any concept,
labeled as liberty or freedom, which is broad enough to encompass the
motivations and beliefs of the Puritans who settled New England (and
who had been persecuted as dissenters by the Anglican church), the
Royalists who fled England after the defeat of Charles I and formed the
Cavalier elite of Virginia, the Quakers who founded Pennsylvania, and the
Scots-Irish refugees who populated the American backcountry, must be a
capacious ideal indeed. There may be family resemblances among these
various conceptions of freedom, but there are probably more significant
differences among them than similarities. More to the point here, some
of these ideals of freedom so closely resemble conceptions of fairness as
to be indistinguishable from them. Fischer cites the Quaker commitment
to reciprocity: “More than any major group in modern history, they
extended to others the rights they demanded for themselves.” At
emigrants to New Zealand, representing a second wave of out-migration from Britain, were motivated by the desire to create “a hierarchical society that was more just and fair than that of England ... matching rank to merit, and wealth to virtue.”12 Thus, ideals of freedom and liberty loom much larger in the consciousness of Americans than they do of New Zealanders.
Fischer uses the fairness/freedom contrast to unify a wide range of seemingly disparate facets of the histories of the United States and New Zealand, including settlement and land acquisition by European settlers, education, women’s rights, the treatment of indigenous people, foreign policy, industrial and labour relations, fiscal policy, and even the basic structure of government. For example, he argues that there was sufficient unoccupied land (because Native Americans had already been evicted from it) remaining throughout American history, even into the early-
21st century, so that it has remained possible to believe in the so-called “American dream” that “one person can become rich and prosperous without impoverishing another.”13 Thus, there is considerable resistance to any government policy that can be characterised as wealth redistribution. In such a society, citizens perceive that government should play a limited role in their lives, mostly keeping out of the way to allow individual initiative and effort to create prosperity. In the physically smaller territory of New Zealand, by contrast, ideals of social justice cannot be realised by assuming that the pie would always be growing larger. Instead, it was necessary for the society to rely on “intervention, planning, and even the redistribution of limited resources and material possessions such as land.”14 The role of government has accordingly been larger in New Zealand, with a goal of ensuring “fairness, equity, and natural justice.”15
If Fischer is right about his description of the foundational political value
commitments of New Zealand and the United States, we
would expect to see
differences in the way these two societies understand the rule of law. Political
scientist Robert Kagan, in his
important comparative account Adversarial
Legalism,16 notes that the American approach to
that not the core commitment of the ideal of fairness?
12 At 50 (citing the views of Edward Gibbon Wakefield).
13 At 149.
14 At 150.
15 At 204. See also at 27-28. Natural justice is a term that might be unfamiliar
to American lawyers, but its meaning in New Zealand law is simply what
Americans would call procedural due process, ie that certain procedures
(such as notice and an opportunity to be heard) must be followed, and a
tribunal must be suitably unbiased, in order for a decision to be legitimate.
Section 27 of the New Zealand Bill of Rights Act 1990 is straightforwardly
a procedural due process provision.
16 Robert A Kagan Adversarial Legalism: The American Way of Law (Harvard
University Press, Cambridge (Mass), 2003). In a book that was talked
about a great deal when it was published, Mary Ann Glendon contended
that Americans tend to transform political problems into assertions
problems emphasises justiciable rights, formal procedures, review of government decision-making by courts, and decentralised authority. Other Western democracies have a different style of policymaking, emphasising expert authority, bureaucratic regulation, and considerably more trust in day-to-day working relationships between citizens, regulated activities and industries, and agencies of the state. American lawyers, on the other hand, work within a legal system and a broader political culture characterised by polarisation, fragmentation, mistrust of government power, and a highly individualistic, us-against-them orientation toward both adjudication and policy-making. Kagan does not discuss New Zealand in any depth, but it differs markedly from the United States in the ways he describes. In several important areas, the relationships between citizens and the state are considerably less antagonistic in New Zealand, and the rule of law is understood not in terms of individual rights but as protection of social cooperation. Constitutional and tort law, for example, are characterised by a level of trust and agreement over ends that are quite surprising to an American observer.
Much depends, of course, on having accurately characterised the political
cultures of the United States and New Zealand, as well as
having a clear notion
of the operative terms of freedom and fairness. Fairness and freedom are protean
concepts, taking on different
meanings depending on the context. Moreover, they
both connote ideals or virtues, so it is unsurprising to hear politicians
support for a policy on the ground that it increases freedom or
fairness. Thus, the first claim of this paper is that a “fairness”
story can be told on both sides of many of the policy debates canvassed by
Fischer.17 There may be less of a difference than Fischer claims
between the political cultures of the United States and New Zealand. It may
the case that New Zealanders tend to be attracted to the label
“fairness,” but the substance of the policies so identified
as different to American values as some of the stronger claims in the book would
suggest. There is a danger inherent in
using a term like fairness to mean,
essentially, something of which the author
rights, which emphasises individualism at the expense of a sense of community and social responsibility. See Mary Ann Glendon Right Talk: The Impoverishment of Political Discourse (Free Press, New York, 1993).
17 In places Fischer recognises this difficulty in his account. Consider the economic restructuring of the 1980s, begun by the Labour Party and popularly referred to as “Rogernomics” after Finance Minister Roger Douglas. After the National Party replaced Labour in government, Finance Minister Ruth Richardson said, “The only sustainable welfare state is one that is fair and affordable.” Quoted in Fischer, above n 3, at
457. If the notion of fairness is broad enough to encompass the economic
policies of both National and Labour, and if it identifies
a value that is
continuous with the foundation of previous economic policies, then it seems that
a wide variety of substantively
different policies can be lumped together under
the label of fairness, making the analytic utility of that term somewhat less
approves. In order to do any useful analytic work, a sharper definition
of fairness is required.
The second claim I wish to pursue in this paper is that Fischer has understated the importance of another dimension of difference between American and New Zealand political culture, namely how much citizens tend to trust powerful public and private institutions. Very roughly, American rhetoric and practice reflects a desire to limit the power of the state, on the right of the political spectrum, and large corporations, banks, and other economic institutions, on the left. Fischer quotes William Pember Reeves writing approvingly of state intervention to benefit the community or the less fortunate classes within it.18 New Zealanders are comfortable, observed Reeves, with a significant state role in employment, land ownership, and control over education, the delivery of health care, and infrastructure.19 Fischer notes that, by contrast, Americans have historically preferred a limited role for government, relied on private industry (with significant state subsidies) to build railroads and telegraph lines, and placed responsibility on private charities to take care of the less fortunate. It is hard to imagine something like the “Don’t Tread on Me” rattlesnake flag, which has become a symbol of the Tea Party, catching on in New Zealand (and not only because there are no snakes here). The level of trust of government, corporations, and of elites in general is considerably higher in New Zealand and, while there are populist sentiments and political actors catering to them,20 there is nothing that compares with the anti-government strand of the Tea Party or the Occupy movement in terms of intensity or impact on the political process. The reason is that New Zealanders simply are not as distrustful of power as Americans. The rule of law, for Americans, means that the legal rights of citizens set limits on what powers lawfully may be exercised by government institutions, leaving a substantial domain of freedom for private ordering, free of regulation. For New Zealanders, it means something closer to rule by law, in which citizens entrust significant decisions concerning their welfare to powerful state decision-makers.
To illustrate these claims, the paper will consider two case studies:
(1) Constitutional law and policy, as illustrated in New Zealand by the treatment by courts and Parliament of the Treaty of Waitangi and the decisions of the Waitangi Tribunal, and in the United States by aspects of the Supreme Court’s constitutional jurisprudence, particularly the resort to the original understanding of the constitutional drafters.
(2) The problem of accidental injuries, which in New Zealand are handled on a social-welfare approach through the Accident
18 At 326-327.
19 See also Belich, above n 8, at 313-314 (quoting L Lipson The Politics of
Equality: New Zealand’s Adventures in Democracy (University of Chicago
Press, Chicago, 1948)).
20 The always colourful Winston Peters and the New Zealand First party
are the current embodiments of populist politics in New
Compensation Commission (ACC),21 and which in the United States are notoriously left to the common law tort system. (I believe, by the way, that some of the notoriety of the tort process is undeserved, as discussed below).
Fischer gives considerable attention to the Treaty itself but less to
subsequent implementation of it, and mentions the ACC only in
passing. In both
instances, he sees the difference between the United States and New Zealand as
arising out of the fairness versus
freedom distinction, but I will contend that
the story is a bit more complicated. The rule of law in New Zealand tends to be
in practice in a pragmatic, flexible standards-based way, while in
the United States it generally involves the assertion of claims
to rights that
can be expressed as either-or rules – as Justice Scalia puts it, the rule
of law as a law of rules.22
II Principles-Based Treaty Policy vs Rights-Based American
Both the United States and New Zealand have had to confront the question of how the majority of European-descended citizens should deal with indigenous people or other minority groups. The obvious comparison is between Māori-Pākehā23 relations and the Treaty of Waitangi, on the one hand, and the American law and policy with
21 In a telling rhetorical shift, the ACC in 1981 was renamed the Accident Compensation Corporation. Substantive reforms made at the same time aimed to reduce the cost to employers of the ACC scheme.
22 See Antonin Scalia “The Rule of Law as a Law of Rules” (1989) 56 U Chi L Rev 1179. For the rules vs standards distinction, see the classic article, Duncan Kennedy “Form and Substance in Private Law Adjudication” (1976) 89 Harv L Rev 1685. It is a commonplace in the rules/standards literature that legal norms expressed in the form of standards tend to shift power to the decision-maker by establishing a broader sphere of discretion. Legal norms expressed as rules, on the other hand, tend to constrain the power of decision-making institutions. Thus, the somewhat trite jurisprudential distinction between rules and standards nicely suggests the theme of trust to be explored here.
23 “The term Pakeha is commonly used for a non-Maori New Zealander of whatever origin including those of mixed Maori-European ancestry who do not consider themselves Maori.” Claudia Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) at 272, n 3. Controversially, Michael King has argued that “being Pakeha” means something more than simply being of European ancestry, but also involves a particular way of being attached to the land. See Michael King Being Pakeha Now: Reflections and Recollections of a White Native (Penguin Books, Auckland,
2004). Although it is generally accepted, it is a bit troublesome, because it is often used to refer to New Zealanders of European descent, no matter how deep their roots in the country, and thus renders problematic the status of non-Māori New Zealanders of other than European extraction, including Pacific Island peoples and East Asians. For an overview of some of the difficulties with this usage, see Andrew Sharp Justice and the Māori: The Philosophy and Practice of Māori Claims in New Zealand Since the
1970s (2nd ed, Oxford University Press, Auckland, 1997) at
respect to Native American nations, on the other. The problem with this
comparison is that Native Americans have never had prominence
and influence in
wider American culture equal to the impact of Māori on New Zealand society.
In numerical terms, Māori
and African-Americans represent roughly the same
proportion of the national population,24 and the comparison is also a
better one for present purposes in light of the prominence of Māori and
in legal and legislative policy-making. The United
States had a legal low point in Dred Scott;25 New Zealand had
the roughly contemporaneous Wi Parata decision.26 The
turning point for white-black relations in the United States was a court case,
Brown v Board of Education, and legislation in the form of the 1964 Civil
Right Act; Parliament played the leading role in New Zealand with the Treaty of
Act 1975, but the courts proved quite receptive to the principles-based
approach reflected in early Waitangi Tribunal reports arising
out of the Orakei,
Muriwhenua, and Manukau claims.27 The most salient difference
between the Treaty and the interpretation of the US Constitution is that in New
Zealand, Parliament, the
courts, and the Waitangi Tribunal are willing to allow
policy to develop gradually, using a pragmatic, open-ended, deliberative
that relies on foundational values at a high level of generality and
does not seek to foreclose further debate.28 Constitutional politics
24 According to the 2010 Census, African-Americans make up 12.6 per cent of the US population. From Statistics New Zealand Census Snapshot (based on 2006 Census), Māori are 14.6 per cent of the population of New Zealand.
25 See Dred Scott v Sandford  USSC 9; 60 US 393 (1857).
26 See Wi Parata v Bishop of Wellington  3 NZ Jur (NS) SC 72.
27 See, eg, New Zealand Māori Council v Attorney-General  2 NZLR 129
(CA) [the Lands case]. For the early, highly influential Waitangi Tribunal
reports, see Report on the Muriwhenua Fishing Claim (Wai-22) (1988)
[“Muriwhenua Report”]; Report on the Orakei Claim (Wai-9) (1987) [“Orakei
Report”]; Report on the Manukau Claim (Wai-8) (1985) [“Manukau Report”].
The Tribunal and New Zealand courts have an interesting reciprocal
relationship regarding Treaty interpretation. The Court of Appeal in
the Lands case relied on the Tribunal’s interpretation of the Treaty, but
subsequent Tribunal Reports have been indebted to, and have cited,
court decisions such as the Lands case. For a summary of this mutually
reinforcing interpretive process, see Palmer, above n 8, at 112, 123-125.
28 Matthew Palmer refers to this tendency as ad hoc pragmatism with an
ironic appeal to tried-and-true Kiwi tropes: “We expect politicians to fix
problems as they appear and to fashion world-leading innovations with
number eight wire after tinkering in the constitutional shed.” Palmer,
above n 8, at 279-281. Palmer also describes the value of pragmatism
in a way that suggests Cass Sunstein’s idea of incompletely theorised
agreement: “[New Zealanders] are more comfortable with getting
on with the practicalities of working out concrete problems between
the Crown and Māori in a particular context than in developing
abstract written formulations of it.” At 289. Compare Cass R Sunstein
“Incompletely Theorized Agreements” (1995) 108 Harv L Rev 1733. The
difference between New Zealand constitutionalism (at least with
an ongoing process of negotiation. This style of decision-making reflects a comparatively high level of trust in the relevant institutions. In the United States, by contrast, the Supreme Court has looked for bright lines and clearly defined rights that take certain issues off the table for discussion through the political process. American constitutional practice reflects persistent mistrust of the power of government institutions and a desire to devolve power to individual citizens whenever possible. These differences are apparent in the way legal institutions make use of history.
A Looking Back, Looking Forward
The history and legal significance of the Treaty of Waitangi is familiar to New Zealand readers. The following summary is offered for the purpose of briefly summarising the story for American readers and, perhaps more importantly, as a kind of check to ensure that I, an outsider, have gotten things more or less right.29 The principal contention of this section is that the difference between the United States and New Zealand in constitutional decision-making is more a matter of style (reflecting greater trust of government institutions) than substance. The reliance on principles can be explained not by a preference for fairness, but on a widespread belief that the Crown and Māori can negotiate in good faith and act as a partnership, to use a term that recurs frequently in Waitangi Tribunal reports. The New Zealand approach is based on a particular, contested view of history in which a process of bicultural cooperation was begun with the acts of a few representatives of an embryonic British colony and a gathering of local chiefs.
The Treaty itself was signed in a formal ceremony on 6 February 1840,
by representatives of the British Crown and an assembly of 43
to Treaty issues) and Sunstein’s model is that Sunstein prefers to leave highly abstract concepts unspecified and work inductively from areas of agreement. The New Zealand process is precisely the reverse, with agreement (or at least settlement) at high levels of generality providing a framework within which agreement can be reached on specific issues. This is closer to a conception of genuinely pragmatic judging than Richard Posner ’s so-called pragmatism, which is a profoundly un-conservative invitation to judges to do what they believe to be reasonable in a given case. See Richard Posner “Pragmatic Adjudication” (1996) 18 Cardozo L Rev 1.
29 For historical background and the texts of the
Treaty, I have relied upon Waitangi Tribunal Ko Aotearoa Tēnei: Te
Taumata Tuatahi – A Report into Claims concerning New Zealand Law and
Policy Affecting Māori
Culture and Identity (2011) [“Wai 262
Report”]; Palmer, above n 8, ch 2; Ranginui Walker Ka Whawhai Tonu
Matou: Struggle Without End (rev’d ed, Penguin, Auckland, 2004); Law
Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) ch 5; James Belich Making Peoples: A History of the New Zealanders
from Polynesian Settlement to the End of the Nineteenth Century (Allen Lane,
Auckland, 1996); IH Kawharu (ed) Waitangi: Māori and Pākehā
Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland,
1989); Orange, above n 23; Ruth Ross “Te Tiriti o Waitangi: Texts and
(1972) 6 New Zealand Journal of History 154.
chiefs from Northland, a fraction of the 500 or more who eventually indicated their agreement with the Treaty. The parties were not strangers to each other. Naval officer William Hobson and British Resident James Busby, who represented the Crown in the negotiations, had long- standing relationships with Māori from the Bay of Islands, Hokianga, and other northern areas. In response to perceived French designs on New Zealand, Busby had sought to establish a government among the fractious chiefs and had prepared a Declaration of Independence in 1835, pledging British protection for the ad hoc group he called the United Tribes of New Zealand. Despite his best efforts, however, wars continued to break out among rival tribes and there never was any effective confederation among the Northland chiefs. Thus, references to the Confederation of the United Tribes of New Zealand are to a fictional entity.30 On the Crown side, there was little more in the way of an effective government. “Hobson’s civil service consisted of 39 genteel officials and their assistants, and his army of eleven alcoholic New South Wales police troopers.”31 Nevertheless, the British Colonial Office instructed Hobson, who had since been appointed Lieutenant Governor, to seek to acquire sovereignty over New Zealand. Lord Normanby, the Secretary of State for the Colonies, conceded in his instructions to Hobson that an acknowledgement of Māori rights had been made in the Declaration of Independence, and that this was “binding on the faith of the British Crown.” Notwithstanding the fragmentation of the Māori polity into “numerous, dispersed, and petty Tribes, who possess few political relations to each other,” Normanby conceded on behalf of the Crown that “New Zealand [is] a Sovereign and independent State.” Accordingly, no claim on New Zealand would be made “unless the free and intelligent consent of the Natives, expressed according to their established usages,” was forthcoming.32
Notoriously, the Treaty documents are a linguistic dog’s breakfast.
Busby drafted a version in English, which was translated
into the Māori
language by missionary Henry Williams, and then Hobson prepared a corrected
draft in English. (The only surviving
English version of the first draft is a
back-translation from the Māori version.) The English and Māori
in crucial respects. The first article of the Treaty purported
to be a cession of sovereignty by the chiefs to the Queen. The
30 Subsequent concerted efforts at creating a pan-tribal unified political entity, including Kotahitanga and the King movement, were unsuccessful. This lack of a stable political structure among Māori would later form one of the grounds for the conclusion in the Wi Parata case that the Treaty was a legal nullity.
31 Belich, above n 23, at 191.
32 See “Instructions from Lord Normanby to Captain Hobson” in Mai Chen
and Geoffrey Palmer (eds) Public Law in New Zealand (Oxford University
Press, Auckland, 1993) at 295-296. Normanby’s instructions are discussed
in Orange, above n 23, at 30-31. Their role in interpreting the Treaty is
evidenced by reliance in Waitangi Tribunal reports, eg, Muriwhenua
Report, above n 27, at [11.3.6].
English version reads:
The Chiefs of the Confederation of the United Tribes of New Zealand, and the separate and independent Chiefs who have not become members of the Confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, over their respective Territories as the sole Sovereigns thereof.
The Māori version, translated back into English, provides:
The Chiefs of the Confederation, and all the Chiefs not in that Confederation, cede absolutely to the Queen of England forever the complete Governance [kāwanatanga] of their lands.
The second article states, in English:
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their Lands and Estates, Forests, Fisheries, and other properties which they may collectively or individually possess ....
The Māori version states:
The Queen of England confirms and guarantees to the Chiefs, to the Tribes,
and to all the people of New Zealand, the absolute Chieftainship
rangatiratanga] of their lands, of their homes, and all their treasured
Other provisions of the Treaty, such as the guarantee by the Crown of taonga, are less linguistically ambiguous,33 although they raised their own problems for subsequent interpreters.
Among numerous interpretive issues, one of the most basic is what power or
capacity was transferred from the Māori signatories
to the Crown, and what
was retained by the Māori. The English- language version contemplates
cession of “all the rights
and powers of Sovereignty” to the Crown,
with Māori to retain possession of lands, forests, and fisheries. The
version, on the other hand, provides for the assumption by
the Crown of the right of kāwanatanga with reservation of te tino
rangatiratanga. Considerable controversy has followed from the usage of these
terms. Kāwanatanga is not a word that was in
common use in the Māori
language at the time the Treaty was drafted; it was an invention of bilingual
missionaries who first
transliterated the word “governor” into
kāwana and then added
33 Taonga, meaning “treasured
possessions,” and sometimes understood as “resources” (see,
eg, the Muriwhenua
Report, above n 27, at [10.3.2], is rendered within the
English text as “lands, estates, forests, fisheries, and other
The difficulty is not in equating taonga with resources or
valued possessions, but determining the extent of protection to be given
the Māori language, or “taonga-derived works” such as art
incorporating Māori motifs, images, elements,
or designs. These matters are
dealt with at length in the Wai 262 Report, above n 29.
the suffix –tanga to indicate something possessed by the governor.34
Governors have limited powers – less than full sovereignty – and this
fact would have been known to Māori, many of whom had traveled
to New South Wales.35 Thus, the Māori version of the document does
not encompass the cession of anything equivalent to full sovereignty,
as the English would have understood it. Rangatiratanga is a bit less
troublesome, because rangatira, meaning chief, was a generally used
Māori word. The real problem comes from the omission of the word
mana, which had been used in the 1835 Declaration of Independence
and thus was known to the British officials. Mana, a word still widely
understood today by all New Zealanders, means the authority that comes
from status, prestige and lineage, and is confirmed or enhanced through
actions. In philosophical terms, it connotes legitimate authority rather
than de facto power. Everyone in 1840 would have known what was
implied by a cession of mana, but of course the chiefs would never have
signed away their mana. Moreover, the Māori signatories would have
understood rangatiratanga as inseparable from their mana.36 The English
term “possession of land” would similarly be rendered in Māori as mana
whenua if one were aiming to convey the idea of ceding sovereignty
over land to the Crown. Thus, historian Ranginui Walker argues that
the drafters of the Treaty must have been engaged in a subterfuge when
they employed the word kāwanatanga in the place of
34 See Walker, above n 29, at 91-93; Orange, above n 23, at 40-41.
35 Sharp, above n 23, at 17-18.
36 In subsequent discussions of the Treaty, Māori have generally used mana
and rangatiratanga interchangeably. See Muriwhenua Report, above n 27,
37 See RJ Walker “The Treaty of Waitangi as the Focus of Māori Protest” in
IH Kawheru (ed) Waitangi: Māori and Pākehā Perspectives on the Treaty of
Waitangi (Oxford University Press, Auckland, 1989) 263. Claudia Orange
notes that there are other possibilities, such as accidental omission and
Williams’s tendency to simplify English texts when rendering them in
Māori. See Orange, above n 23, at 40-41. Belich implicitly endorses
the view that a hopeless muddle was created by the conflicting English
and Māori versions of the Treaty: “It is not clear to everyone that a few
paragraphs fudged up by a bunch of mediocre, biased and possibly
deceitful British Maori-language scholars in 1840 is a suitable bible
for Māori-Pakeha relations in the twenty-first century, infallible and
omnipotent.” Belich, above n 29, at 195. A right-wing critic of the current
state of Māori-Pākehā relations, by contrast, has a much rosier view of the
document itself: “[T]here can be no doubt but that the translators, honest
men knowledgeable in the Māori tongue, endeavoured to translate into
Māori the meaning of the English draft. The very nature of the Treaty’s
origins – as an English draft which purported to cede sovereignty being
then translated into Māori – render differences between English and
Māori improbable.” DJ Round “Two Futures: A Reverie on Constitutional
Review”  OtaLawRw 5; (2011) 12 Otago L Rev 525 at 533-534. I am not sure why the
intention to transfer sovereignty, which in any event was the intent only
on the British side of the table, makes it unlikely that there were two
different versions, given the suggestions of Walker and Orange that
Whatever the intentions of Busby, Hobson, and Williams regarding the written text, the emissaries of the Crown also made numerous statements and promises orally. James Belich suggests that it is likely that these representations were far more important to the Māori present at Waitangi and elsewhere than the precise wording of the written treaty. “[W]hy should powerful chiefs, self-confident in their oral culture, abandon the traditional practice of making solemn and binding verbal agreements on the basis of formal discussion at major meetings called for the purpose?”38
At the ceremonial signing of the Treaty, Williams (the most proficient speaker of the Māori language among the British) stated that the Queen desired to secure certain rights and privileges to Māori, and that the purpose of the Treaty was to protect them against exploitation by any foreign power, as had happened with the French takeover of Tahiti; there was no explanation of the transfer of sovereignty/kāwanatanga to the Crown.39 Busby had also reassured the chiefs at Waitangi that the Treaty was meant to secure them in possession of whatever land they had not previously sold.40 In response to a question from a young missionary, as to whether the assembled Māori understood the legal effect of the Treaty, Hobson said they would simply have to trust the missionaries, the most familiar representatives of British authority to many Māori, and in any event the only Europeans with any proficiency in the language.41
Led by Hone Heke, who subsequently became famous for repeatedly cutting down the British flag over Kororaweka, many of the chiefs present, mostly from the Bay of Islands, signed the written document. Hobson signified the event by stating, in words that would later serve as a formula for contesting national identity, “He iwi tahi tatou” (we are now one people).
In negotiating the Treaty, the Crown was following a pattern it had used with
indigenous people in other colonies, reflecting the
then- accepted contractual
theory of sovereignty.42 How, then, does the Treaty fare as a
contract or as a treaty under international law? The different languages in
which Treaty documents
were written should not pose
translation might have been a swindle, or a mistake.
38 Belich, above n 29, at 195.
39 Orange, above n 23, at 45-46.
40 See Orakei Report, above n 27, at [11.9.7]. After the ceremony at Waitangi,
Hobson traveled the country to obtain the signatures of other chiefs. At
Hokianga he emphasised that the Treaty was the best available protection
from unscrupulous European land buyers. He also had a circular issued,
in the Māori language, stating that the intention of the Crown was not
to acquire land. Hobson apparently heard and did not contradict the
statement, subsequently to be frequently cited, by Nopera Panakareao at
Kaitaia, that “the shadow of the land goes to the Queen, but the substance
remains with us.” At [11.9.8].
41 Orange, above n 23, at 54.
42 PG McHugh “Constitutional Theory and Māori Claims” in IH Kawharu
(ed) Waitangi: Māori and Pākehā Perspectives on the Treaty of Waitangi (Oxford
University Press, Auckland, 1989) 25 at 30-31.
that much of a challenge; well-established principles of the law of treaties
give effect to the Māori version as well as the
the drafting history of the documents can be considered, and to the extent there
is any ambiguity, it
should be construed against the Crown under the principle
of contra proferentem.43 Even working within Māori
understandings of Māori terms, however, there appears to be a remaining,
and fatal, ambiguity.
What exactly is the scope of legitimate authority assumed
by the Crown as its right of kāwanatanga, in light of the retention
Māori of their rangatiratanga? The text of the documents and the drafting
history do not answer that question. Nor does
it help to seek to recover the
intentions of the parties, as they almost certainly had conflicting
Reshaping the treaty into what enlightened Maori and Pakeha today would have
liked it to have been has its attractions. But it is
hard to see the historical
merit, because the intents of the two parties were clearly in conflict. The
British wished to convert
Maori into Brown Britishness and subordinacy, whereas
the one thing we can be sure of about Maori motives for signing is that they
not want this.
Where the subjective intent of the parties conflicts, the text of the treaty
must control interpretation.45 Where the text is ambiguous,
however, an interpreter may be able to do no better than to attempt to discern
some hypothetical end
or purpose for which the treaty was concluded. There seems
to be no way to ground an objective, stable meaning of the Treaty of Waitangi
either the text of the document or the actual, subjective intentions of the
parties. In addition, the limited number of signers
of the Treaty,46
and the lack of any pan-tribal political entity with authority to act on
behalf of all Māori, put considerable pressure on the
43 See generally Anthony Aust Modern Treaty Law and Practice (Cambridge University Press, Cambridge (UK), 2001) at 187-205. The Vienna Convention on the Law of Treaties (VCT), art 33(3), provides that both the Māori and English versions of the Treaty are authentic and equally authoritative. In any event, the Treaty of Waitangi Act 1975 adopted both versions as official in Schedule 1 of the legislation. Drafting history (travaux préparatoires) and the contra proferentem rule may be used as supplementary principles of interpretation to resolve any remaining ambiguity. VCT, art 32. Interpretation is subject to the overriding principle of good faith, often expressed as the maxim pacta sunt servanda. VCT, arts 26, 31.
44 Belich, above n 29, at 195.
45 See Ian Sinclair The Vienna Convention on the Law of Treaties (2nd ed,
Manchester University Press, Manchester (UK), 1984) at 130-131.
46 See Walker, above n 29, at 96-97 (noting that two important chiefs, Te
Wherowhero of Tainui and Te Heuheu of Tuwharetoa, as well as chiefs in
the Tauranga area, the East Cape, and the Lakes district, did not sign, thus
considerably undercutting British claims to sovereignty over the entire
North Island). Even today the claim that no Ngai Tūhoe chief signed the
Treaty has been a feature of the debate over the so-called Urewera Four.
See, eg, Catherine Masters and Patrick Gower “Guerillas in the Mist” The
New Zealand Herald (Auckland, 20 October
international law of treaties.47
Therefore, an extremely interesting possibility must be considered, which is that the answer to how the Treaty fares under the law of contracts or treaties is, “It doesn’t matter.” Conservative critics of the modern approach of the Waitangi Tribunal have emphasised formal defects in the process, including the lack of unified political authority on the Māori side, the “amateurish and hasty” drafting of the Treaty document, and the subsequent failure of Parliament to ratify the Treaty and thus give it effect in domestic law.48 The Treaty was, in fact, mostly ignored by the government until the 1970s, when political activism by increasingly urbanised (and therefore no longer invisible) Māori began to put pressure on the confident assumption that New Zealanders were “one people.”49 The last few decades of the 20th century witnessed a novel, even revolutionary approach to policy-making under the Treaty. Most interesting to an American observer is that none of it was, strictly speaking, compelled by law. American history of majority-minority relations is structured to a significant extent by high-profile acts by courts or legislatures which seek to force social change by creating legally enforceable rights. Consider, for example, decisions by the US Supreme Court, directing states to discontinue racially segregated public schooling and then compelling recalcitrant state governors to comply with its orders, or the voting-rights cases which slowly dismantled the legal framework of African-American disenfranchisement.50 Congress played a role as well, most notably in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which finally created an effective mechanism to enforce the Fifteenth Amendment to the US Constitution, enacted following the Civil War. School desegregation in particular was accompanied by a violent backlash, and Americans are sadly familiar with images from the era such as black high school students being escorted into Little Rock (Arkansas) Central High School by soldiers from the 101st Airborne Division.
A naïve American visitor to New Zealand would therefore expect that the contemporary landscape of Māori-Pākehā relations is the result of the assertion of legal rights under the Treaty by Māori claimants. An American lawyer may believe that the law must have set limits on what a Pākehā-dominated political process can do because in the American experience political majorities cannot be trusted to deal fairly with minority groups. The law has played, and continues to play a vital role
47 For arguments that Māori signatories did have the capacity to enter into a binding treaty with the Crown, see Palmer, above n 8, at 155-159; Benedict Kingsbury “The Treaty of Waitangi: Some International Law Aspects” in IH Kawharu (ed) Waitangi: Māori and Pākehā Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 121 at 125-126.
48 Guy Chapman “The Treaty of Waitangi: Fertile Ground for Judicial (and
Academic) Myth-Making” (1991) NZLJ 228.
49 The story is well told in Sharp, above n 23, ch 5; and Walker, above n 29.
50 For some of the early voting-rights cases, see Reynolds v Sims  USSC 202; 377 US 533
(1964); Baker v Carr  USSC 42; 369 US 186 (1962).
in structuring the bicultural partnership of New Zealand, but it does not function as it does in the United States. The rule of law in New Zealand does not generally entail the use of legal rights to compel social change. Rather, the law provides a means through which an ongoing evolutionary process of change can be negotiated. The role of the Treaty in New Zealand law is far from the “adversary legalism” style described by Robert Kagan, although elements of adversarialism, such as assertions of rights and demands for a remedy, may be present. Instead, and to borrow another metaphor from American legal theory, the two peoples making up the nation of New Zealand bargain in the shadow of the law,51 with the law being understood in deliberately vague, abstract terms. The rule of law must therefore be understood differently in New Zealand constitutional practice, as compared with the American case. The law does not serve as a lever to move reluctant state institutions, or as a weapon to be used against state actors; rather, it is a framework for an ongoing process of negotiating the terms of a relationship. The right theoretical model for legal rights and the rule of law is not a one- off contract whose meaning is fixed in time, but a “relational” contract whose content evolves and adapts within an ongoing relationship between the parties.52
To be sure, the Treaty has ongoing vitality as positive law through
legislative enactments and judicial decisions. Many statutes
references to the Treaty and require the government to act in ways that are
consistent with its obligations under it. For
example, Section 9 of the
State-Owned Enterprises Act 1986, which was to become central to the Lands
case, states that “[n]othing in this Act shall permit the Crown to act
in a manner that is inconsistent with the principles
of the Treaty of
Waitangi.” The Environment Act 1986 similarly makes reference to
“principles of the Treaty” as
one of five factors upon which
decisions should be made regarding the use of natural resources.53
Courts have given effect to these provisions as they would any other
statutory language.54 The Treaty of Waitangi Act 1975 established
51 Robert H Mnookin and Lewis Kornhauser “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale LJ 950.
52 See, eg, Stuart Macaulay “Non-Contractual Relations and Business: A Preliminary Study” (1963) 28 American Sociological Rev 55; Ian R Macneil “Contracts: Adjustment of Long-Term Economic Relations under Classical, Neoclassical and Relational Contract Law” (1978) 72 Nw U L Rev 854; Lisa Bernstein “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry” (1992) 21 JLS 115; Lisa Bernstein “Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions” (2001) 99 Mich L Rev 1724. The overall objective structuring the relationship or partnership has been described as follows: “[I]n return for ceding sovereignty, Maori gained protection of their persons, properties and tribal status, and individually, the rights and privileges of British subjects.” Muriwhenua Report, above n 27, at [10.5.2] (citing the Court of Appeal’s Lands case).
53 See Palmer, above n 8, at 92-95.
54 At 204-205.
Tribunal as a permanent commission of inquiry, and the jurisdiction of the Tribunal was soon expanded to consider grievances dating back to
1840.55 The Tribunal does not have the power to order legal changes or property settlements,56 but its recommendations have considerable persuasive force, and the government has responded to many of these recommendations regarding matters such as fisheries regulation.57
Early Tribunal reports, particularly those arising out of the Orakei,
Manukau, and Muriwhenua claims, established the approach that
decision-making under the Treaty today. They began to refer to principles of
the Treaty, refusing to be bogged down
by the specific textual problems referred
to above. Courts often refer to Tribunal reports when interpreting statutory
government decision-makers to give effect to the
Treaty.58 Finally, the Treaty serves as a self-imposed constraint
on government action, manifested in an array of forms including
agreements between members of a governing coalition,
statements by the Governor-General, and internal cabinet procedures
manuals.59 Nevertheless, the Treaty has constitutional and cultural
significance that go well beyond the American understanding of law as
consisting in individual rights that can be asserted by citizens
against each other, or to restrain the power of
55 See generally Palmer, above n 8, at 105-106, 272. The Tribunal has between two and twenty members, appointed by the Minister of Māori Affairs after consultation with the Minister of Justice. Palmer notes that the Tribunal offers a distinctive Māori voice. By tradition it is comprised of equal numbers of Māori and Pākehā members. It has its own procedures and kawa [ceremonies pertaining to meetings, often used with reference to protocol on a marae], holds hearings on marae and in the Māori language. Evidence presented ranges widely over history, customs, tradition, beliefs and practices relevant to the past and ongoing relationship between the Crown and Māori. See the description of the Tribunal’s marae protocol in the Muriwhenua Report, above n 27, at [1.8.1]. Claims presented to the Tribunal are framed in the traditional manner of the English common law, in terms of an identified claimant seeking a remedy for a specified wrong, but the procedures of the Tribunal are more inquisitorial than in a New Zealand court of general jurisdiction. Palmer notes that “compared with the courts, the Waitangi Tribunal is more prepared to go beyond process, to uphold the substantive rights of Māori under the Treaty in the face of opposition by the executive.” Palmer, above n 8, at 275.
56 See Te Runanga o Muriwhenua v Attorney-General  NZCA 7;  2 NZLR 641 (CA)
at 651-652; Taiaroa v Minister of Justice  1 NZLR 411 (CA).
57 Palmer, above n 8, at 189-190. See, eg, the account of the Sealord deal in
Walker, above n 29, at 294-295.
58 See, eg, the Lands case, in which the Court of Appeal enjoined the transfer
of assets to State Owned Enterprises without considering whether doing
so would violate the Crown’s obligations under the Treaty. New Zealand
Māori Council v Attorney-General  2 NZLR 129 (CA). The court was
interpreting Section 9 of the State Owned Enterprises Act 1986, but its
reliance on the principle of consultation between the Crown and Māori
was indebted to earlier Tribunal reports.
59 Palmer, above n 8, at 215-226.
the state. The rule of law means something distinctive in New Zealand, including an essentially pragmatic, tolerant, trusting approach to the exercise of state power.
B History and Power
In considering the role of the Treaty in the political culture of New
Zealand, Fischer conflates modern understandings of the Treaty
the beliefs and expectations of British officials and Māori chiefs who
negotiated and signed it in 1840.60
Hobson and the Maori chiefs succeeded not by force or by fraud, or even by
persuasion, but by finding a mutuality of material interests
and a harmony of
ethical principles. The central principle was a creative tension between two
elements. One was British “sovereignty,”
(governance) in the Maori text. The other was the guarantee of te tino
rangatiratanga, which meant not only “unqualified
chieftainship” but, more broadly, “Maori control over Maori
things.” At the heart of the treaty was
an idea of divided powers –
a concept fundamental to governance among English-speaking people .... Maori
chiefs and British
officers established a frame of law, and an idea of divided
powers between te kawanatanga katoa for the queen and te tino rangatiratanga
Maori. Together they created the possibility of balance, justice, and
Believing that the signatories understood rangatiratanga as “Māori
control over Māori things” would require
imputing an approach to
Māori-Crown relations that is forward-thinking (and controversial) in the
first decade of the 21st century
to a handful of leaders on both sides who were
just beginning to feel their way toward a governance structure for New Zealand.
would take the wars of the 1860s in Taranaki and the Waikato, subsequent
Pākehā retrenchment and ignoring of the treaty
for many decades, the
Māori civil rights movement in the 1970s, the Treaty of Waitangi Act 1975,
and numerous reports of the
Waitangi Tribunal, judicial decisions, and
legislation referring to Treaty principles in specific contexts to give any
the general notion of “Māori control over Māori
things.” As Ranginui Walker has shown, for decades after the
the Treaty, Māori control over Māori things was precisely what was
sought by Māori and denied by the Pākehā
Kotahitanga (unification) movement tried to create a Māori parliament to
deal with matters entrusted to Māori
under the Treaty, such as possession
of land and control over fisheries.61 It was simply ignored by the
Parliament in Wellington. Furthermore, the scope of “Māori
things” is potentially
open-ended, and the current understanding of that
concept was almost certainly not within the contemplation of the 1840
The Wai 262 report encompasses a dizzying array of subjects,
including environmental policy, intellectual property, biodiversity
management of native flora and fauna, Māori language, traditional medicine,
and the effect of the Treaty on international
60 Fischer, above n 3, at 121.
61 Walker, above n 29, at 165-169.
into by the Crown. So broad did the Wai 262 inquiry become that the Report describes it as “pertaining to mātauranga Māori – the unique Māori way of viewing the world, incorporating both Māori culture and Māori traditional knowledge. It is no stretch to describe this claim as being about the survival of Māori culture and its ongoing place in this country.”
Whatever the signatories were thinking about on 6 February 1840, it probably
was not that their actions would affect the whole of
Māori culture and its
unique way of understanding the world. The germ of a bicultural partnership
with shared powers of governance
may be discernable in the negotiations between
Hobson and the Northland chiefs, but it is certainly not the only interpretation
is sustainable on the historical record.62 The maxim
“He iwi tahi tatou” could be understood as a mandate for
assimilation of Māori into Pākehā ways
of doing things, as it was
for more than a century following the signing of the Treaty.63 My
point, however, is not to reargue this point of history. Rather, it is to
identify two distinctive approaches to using history
in legal reasoning and
government policy-making – that is, to identify aspects of the
constitutional and political cultures
of the United States and New Zealand. The
difference is not so much an ideological commitment to freedom or fairness, but
for constraining the power of the state using positive legal rights
and remedies, in American political culture, and acknowledging
of the state to negotiate the terms of relationships among citizens, and between
citizens and the state, in an ongoing
way, without significant legal constraint,
in the case of New Zealand. There is also a relational dimension to the rule of
New Zealand, which would be almost incomprehensible to an American
lawyer. The basic terms of the agreement are left vague or unstated,
parties are encouraged to bargain to an acceptable solution to specific,
concrete problems. When Matthew Palmer argues
that the Treaty should be
understood as a pact of goodwill between peoples, or analogous to the unwritten
norms that structure family
relationships,64 this is far from the
“adversarial legalism” approach of American lawyers, who are
concerned to establish first the rights
of individuals, and to build
62 Sir Ian Sinclair calls this the “emergent purpose” version of the teleological approach to interpreting treaties, which seeks to recover the end and purpose of the agreement, not as it existed at the time it was entered into, but as it evolves over time. He criticises this approach (albeit indirectly and tactfully) as a means by which an interpreting institution can aggrandise its power. See Sinclair, above n 45, at 131-134.
63 Walker, above n 29, at 145, 198-199, 207, 225-228, 242-243. As civil rights activism by Māori increased in the 1970s and 1980s, some Pākehā became aware that the “one people” ideal was biased in their favour and began to speak instead of a bicultural partnership. For example, at the Waitangi Day ceremony in 1981, Governor-General David Beattie said, “We are not one people, despite Hobson’s oft-quoted words, nor should we try to be.” At 236.
64 Palmer, above n 8, at 302-303.
up relational interests only out of clearly established individual rights.
Americans tend to make a fetish of the original understanding of the meaning
of the Constitution. We act as though the intentions
and expectations of
Madison, Jefferson, Hamilton, Adams, Jay, and a few other canonical Framers
(capitalised, to convey reverence)
should be controlling today on issues
pertaining to federalism, separation of powers, church-state relations, capital
the financing of political campaigns, privacy, police searches,
marriage equality, race- based redistricting, and goodness knows
else.65 While some Americans may believe that the Framers were
uniquely wise and prescient, the more important reason for relying on the intent
of the Framers is to constrain the power of judges. By tying interpretation
tightly to the original meaning of the Constitution,
it is thought, judges can
prevent themselves and other courts from engaging in open-ended policy
reasoning, substituting their own
preferences for the rule of law. There has to
be something objective to rein in judges, either the plain meaning of the
text or the intent of the Framers. Since the text of the
Constitution is open-ended, vague, and fails to address
65 See, eg, Jack M Rakove Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, New York, 1996). For the purposes of this paper it is not necessary to get into the differences between the so-called Old Originalists and New Originalists. Briefly, the Old Originalists seek to constrain the interpretative latitude of judges by restricting the meanings of terms used in the constitutional text to those meanings that were subjectively in the minds of the actual Framers of the Constitution. See, eg, William H Rehnquist “The Notion of a Living Constitution” (1976) 54 Tex L Rev 693; Robert H Bork “Neutral Principles and Some First Amendment Problems” (1971) 47 Ind LJ 1. New Originalists, who sometimes call themselves textualists, seek to ground interpretation instead in an objectified public meaning of words as they would have been understood by a reasonable person at the time the document was written. Antonin Scalia A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann (ed), Princeton University Press, Princeton (NJ),
1997); John F Manning “Textualism and the Role of The Federalist in
Constitutional Adjudication” (1998) 66 Geo Wash L Rev 1337. New
Originalism avoids the problem of how coherently to summarise the
likely-conflicting subjective intentions of authors and delegates
constitutional convention. See Paul Brest “The Misconceived Quest for the
Original Understanding” (1980) 60 BU L Rev 204. It is less clear, to me
at least, that it is an adequate response to Jeff Powell’s argument that
the Framers themselves would
not have believed their intentions to be
controlling of future interpretation. H Jefferson Powell “The Original
of Original Intent” (1984) 98 Harv L Rev 885. While one
might respond that the Framers’ subjective intention is beside the point,
it still may be the case that Powell
correctly identifies a public, objective,
widely shared notion of the expectations of authors in the 18th century
regarding the process
of determining meaning. On the current United States
Supreme Court, conservative Justices Clarence Thomas and Antonin Scalia
the Old and New wings, respectively, of Originalism.
many matters, the next best source of objectivity in judging is thought to be the subjective intentions of the drafters and the then-current public meanings of crucial terms employed. History therefore assumes a central role in checking the exercise of arbitrary power by an unelected judiciary.
Consider, for example, the following case.66 The District of Columbia has a broad prohibition on the possession of handguns. A citizen who wishes to possess and register a handgun challenges the ban on the grounds of the Second Amendment to the US Constitution, which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” A number of interpretive questions are presented by this provision of the Constitution. What is the scope of the “right ... to keep and bear Arms”? Surely it does not extend to all weapons that might have military or law-enforcement applications. Even if there is such a prima facie right, the government might reasonably conclude that the public interest in safety and freedom from gun-related violence is more important than this individual right. Moreover, the text of the Second Amendment contains an interesting ambiguity created by the relationship of the first and second clauses. Is the right to keep and bear arms logically related to service in a professional or volunteer militia, so that citizens may keep and bear arms only to the extent that these weapons need to be available for military use? In the end, the Supreme Court was called upon to determine whether the DC handgun ban was unconstitutional.
In his opinion for the majority of the Court, Justice Scalia offered an extended ordinary-language argument based on how words such as “keep” and “bear” would have been understood in the founding era. Rather than seeking to determine how to make sensible policy decisions regarding handgun possession in a densely populated city, Justice Scalia assumed the Court’s task was to recover just what the parties to the drafting of the Constitution would have meant when they used those words. Never mind that the Framers probably did not have in mind the levels of urban crime, fueled by the drug trade and ready access to firearms, that motivated the DC City Council to enact the ban on handgun possession. For Justice Scalia it was sufficient to prove that the words “bear arms” had a meaning in the 18th century that encompassed firearms possession outside of the context of an organised militia. In dissent, Justice Stevens acknowledged Justice Scalia’s framing of the issues, offering a competing interpretation of the Second Amendment in its historical context, while Justice Breyer ’s opinion made a more frankly normative argument, that even if the Second Amendment was interpreted as creating an individual right not linked with militia membership, a legislature may nevertheless constitutionally restrict firearms ownership to protect citizens from urban crime. Significantly, Justice Scalia has relatively little to say in response to Justice Breyer ’s normative arguments. The bulk of his opinion reflects the confident
66 District of Columbia v Heller 554 US 570
assumption that historical evidence about the meaning of “bear arms”
in the founding era would be decisive of the issue.
By contrast with the persnickety American originalism which treats the words and intentions of the Framers as holy writ, the approach of the Waitangi Tribunal is informed by history, but at a sufficiently high level of generality that, in a sense, the precise words spoken by Hobson, the meaning and inter-translatability of sovereignty and rangatiratanga, and the intentions of all the actors are beside the point. The genius of the New Zealand approach is what might be called ahistorical historicism. The historicism of the approach acknowledges that courts, investigatory tribunals, and Parliament do not write on a blank slate. Māori-Pākehā relations have a long history in this country, and contemporary decision- makers can do better by taking that history into account. Nevertheless, the approach is sufficiently ahistorical to avoid getting bogged down in endless arguments over an event that took place long before the rise of the types of technology, institutions, and practices that lead to conflicts today between the two founding peoples of New Zealand. Sales of state-owned assets, large-scale commercial fishing, concerns about biodiversity, protection in international law for intellectual property, offshore gas drilling, and other matters that have been the subject of Waitangi Tribunal reports could not possibly have been within the contemplation of the signatories of the Treaty. It would be foolish to pretend that anyone in 1840 would have had a view one way or the other on any of the problems that now present themselves under the general rubric of “issues involving Māori.”
Justice Scalia’s opinion in the DC handgun case closes with a passage
implying that a Court has a stark binary set of options
in response to the
problem of handgun violence – either ignore the Constitution or strike
down the ban on handgun possession:67
Undoubtedly some think that the Second Amendment is outmoded in a society
where our standing army is the pride of our Nation, where
forces provide personal security, and where gun violence is a serious problem.
That is perhaps debatable, but
what is not debatable is that it is not the role
of this Court to pronounce the Second Amendment extinct.
Imagine that the Waitangi Tribunal or the courts of New Zealand had
approached questions regarding fisheries rights, possession of
land, or control
over cultural property with the same mindset. The options would then have been
to restore Māori sovereignty,
ie rangatiratanga, over these matters to the
exact condition in which it existed in 1840, or to tell Māori that they are
people” with Pākehā and have no recourse but to
participate in the political process on the same terms as everyone
model of a bicultural partnership avoids these extremes by fostering, rather
than shutting down, an ongoing process of
67 At 636.
the more specific commitments of the partnership.68
Conservative critics of policy since 1975 have been at pains to show that
neither the text of the Treaty (with the kāwanatanga/rangatiratanga
ambiguity) nor the intentions of the signers could possibly be a foundation for
the modern idea of a partnership between Māori
and Pākehā. The
response from legal scholars, as opposed to historians, has generally been,
“So what?” Constitutionalism
is not the recovery of past meanings,
but the ongoing process of meaning-creation, adapted to changing
circumstances.69 Critics have therefore fallen back on an argument
that is familiar to Americans, but which for some reason has not gained too much
traction in New Zealand, namely the fear of judicial activism. Justice
Scalia’s textualism and Justice Thomas’s originalism
68 Don Brash referred in his Orewa speech to the temporary stoppage of work on the Waikato Expressway due to concerns expressed by a local iwi that the construction would disturb a taniwha. See David Slack (ed) Bullshit, Backlash and Bleeding Hearts: A Confused Person’s Guide to the Great Race Row (Penguin, Auckland, 2004) at 149-156. The American analogue that immediately springs to mind is the halting of dam construction by a public authority in order to protect an endangered species, the snail darter. See Tennessee Valley Authority v Hill  USSC 115; 437 US 153 (1978); the case may be known to non-Americans through Dworkin’s use of it as an example in Law’s Empire. The snail darter controversy was always framed in all- or-nothing terms. Either the Endangered Species Act protected the snail darter, in which case the dam could not be built, or it did not, in which case the snail darter was out of luck. In the situation with the taniwha, the problem was resolved by respectful consultation, a slight redesign and rerouting of the highway, and modest additional cost to the project. This may not be a perfect analogy because there may have been no comparable design change that could have been made to the dam, but it is nevertheless significant that two high-profile public works projects in the US and New Zealand both encountered opposition on the grounds of environmental concerns (expressed in spiritual terms in the taniwha case), and yet were resolved in quite different ways. (Brash is still going on about taniwha – see Don Brash “An Address to the 2011 Act Party Conference” (12 March 2011), available at <www.donbrash.com>.
69 Paul McHugh “Constitutional Myths and the
Treaty of Waitangi”  NZLR 316. Compare the argument of Giselle
Byrnes that the Waitangi Tribunal has created a “retrospective utopian
Byrnes The Waitangi Tribunal and New Zealand History
(Oxford University Press, Auckland, 2004). It is not the case that McHugh
and Byrnes are describing the same phenomenon, only taking
disapproving attitudes, respectively, toward it. Rather, McHugh is writing
about constitutionalism, not history per
se. When he says “[o]ne cannot
understand the legal position of the Treaty or its place in Anglo-American
simply by reading a few chapters of Claudia Orange’s
book [and] Ruth Ross’ legally suspect but otherwise excellent
he is not advocating that critics of the Tribunal read more
history; he is recommending instead that they think more broadly about
political institutions should understand the relationship between history,
foundational values, and policy-making, and how power
should be shared among
institutions in a democracy.
are influential approaches to constitutional interpretation in the United States because conservatives fear the power of unelected judges over social policy-making. The idea of a living constitution is anathema to conservatives who believe that the “life” breathed into the document will be nothing more than left-leaning ideology. They point to numerous decisions of the Supreme Court under Chief Justice Earl Warren to illustrate their concern. The Court held, as a matter of constitutional interpretation, that prayer in public schools was impermissible, states may not ban access to contraceptives nor regulate abortion in the first trimester of pregnancy, suspects in police custody must be warned of their right to remain silent, evidence seized without authorisation may not be admitted at trial against a criminal defendant, prisoners could sue over unconstitutional conditions of confinement, and students could be bused to geographically remote schools to rectify the effects of segregation. None of these legal rights and remedies had the kind of democratic legitimacy that one would associate with legislation; therefore they seem to present a “countermajoritarian difficulty” due to either the opposition or the inaction of more directly politically responsive government institutions.70
The requirement that judges ground an interpretation of the constitution in
the plain meaning of its language or in some aspect of
its drafting history
(whether the subjective intentions of the Framers or the then-current public
meaning of words employed) is intended
as a check on interpretive freedom. A
judge cannot enact her own policy preferences as law, under the guise of
interpreting the constitution,
if text and history provide a meaningful
constraint. The political significance of the idea of the rule of law, in
theory, is principally as a limitation on the exercise
of power. Therefore, if American history is any guide – that is, if
Zealand and the United States share sufficient similarities as well as
differences – then one might expect to hear criticism
of the Waitangi
Tribunal and court decisions pitched in terms of activism and power-grabs by
undemocratic institutions. Judicial
decision-making in New Zealand does not
raise the countermajoritarian problem in the same way because of the Diceyan
parliamentary supremacy. Nevertheless, an institution may acquire
power in different ways, and the Waitangi Tribunal may have effective
notwithstanding its inability to issue binding judgments. As a political matter
it may be so difficult for Parliament to ignore
a recommendation of the Tribunal
that the Tribunal becomes, in effect, an unelected, unconstrained political
actor. Don Brash pushed
the “activism” button in his Orewa speech
when he criticised the reliance on Treaty principles, noting that “it
70 See, eg, Alexander M Bickel The Least
Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University
Press, New Haven (Conn), 1961). It is not much of an exaggeration to say that
American constitutional theory is obsessed
with the countermajoritarian problem.
See Barry Friedman “The Counter-Majoritarian Problem and the Pathology of
Scholarship” (2001) 95 Nw U L Rev 933.
unelected Court of Appeal judges to determine an interpretation of the
Treaty’s meaning that the politicians most certainly never intended.”71
There are also hints of this critical perspective in conservative academic
commentary. David Round, for example, worries that the principles-
based approach to decision-making under the Treaty “would be an open
invitation to activist judges and bureaucrats to readjust and rewrite the
laws of our country at their leisure and pleasure.”72
This possibility would be less frightening in a situation characterised by a great deal of mutual trust and respect. Earlier I analogised New Zealand constitutionalism to relational contracting. Matthew Palmer similarly has argued that, fundamentally, the meaning of the Treaty of Waitangi is that Māori and Pākehā are, like it or not, in an ongoing relationship and must continue to negotiate the terms of their dealing with one another. Palmer notes that the word “relationship” has touchy- feely connotations – calling to mind “empathetic woolly-woofter liberals and naïve idealism”73 – but he rightly emphasises that the analogy is not with personal relationships but complex commercial negotiations. The crucial insight identified with the word “relationship” is that the negotiations are not zero-sum, and that in addition to hard bargaining, it is necessary to appreciate what is possible, communicate honestly, listen carefully, and be prepared to compromise. Thus, it may well be true that the Tribunal is engaged in a process of myth-making, but the “myth” in this case is an outcome with political significance that is the subject of respectful negotiations conducted by parties that do not see bargaining as a one-off interaction but as an ongoing, emerging process. Viewed in that way, it is the American style of constitutionalism that is bizarre, with its insistence that the precise terms of the bargain struck in 1787 ought to control the allocation of civic rights and responsibilities in the 21st century.
C Two Conceptions of Fairness
Fischer suggests that the Treaty of Waitangi, and the settlement process
begun in 1975, is fairer to Māori than comparable agreements
processes have been to African-Americans.74 He does not take
account, however, of a strong backlash against the Treaty settlement process and
a widespread perception that Māori
are the beneficiaries of special
treatment. That is to say, there may be a competing fairness narrative – a
not universal, sense that the government has interpreted the
Treaty in a way that is unfair to Pākehā.75 Indeed, the
National Party arguably owes its current status in government to exploitation of
“Treaty fatigue” and a sense
that the process of rectifying
71 Quoted in Slack, above n 68, at 20.
72 Round, above n 37, at 539.
73 Palmer, above n 8, at 311.
74 Fischer, above n 3, at 287-290.
75 I do not endorse the substance of this argument, by the way, but note its
existence as evidence that there is more than one operative conception of
fairness which may be used to characterise the Treaty settlement
had swung too far in the direction of special rights for Māori.76 Fischer talks about John Key’s 2010 speech on Waitangi Day, as Prime Minister,77 but inexplicably neglects to mention the vastly more significant event of Don Brash’s speech in 2004 to the Orewa Rotary Club on Treaty policy, which was almost certainly one of the causes of National’s return to power.78 “Brash tapped into public fatigue with and ignorance of the Treaty of Waitangi by asserting that his thinking as a political leader was guided by one principle: ‘The Treaty of Waitangi should not be used as the basis for giving greater civil, political or democratic rights to any particular ethnic group.’”79 Despite the “negative reaction from journalists, editorial-writers of newspapers and political commentators on radio and television,”80 a substantial portion of the general public was supportive of Brash,81 and the speech led to a substantial spike in support for National in public opinion polls.82
All of this is depressingly familiar to an American observer. The rhetoric
of “equal rights, not special privileges”
could have come from any
episode of backlash against gains in civil rights made by women, people of
colour, LGBT citizens, religious
minorities, or anyone else challenging the
status quo. Behind the talkback radio clichés, however, is a different
of the political value of fairness. The ideal of colourblindness,
race-neutrality, formal equality, and being “one people”
appeal to one conception of fairness, in which rights and privileges are
allocated by the state in a manner that is neutral
with respect to criteria
irrelevant to deserts. Public employment, government contracts, spots in the
incoming class of a university,
portions of the broadcast spectrum, and so on,
should be apportioned on the basis of some notion of merit, with merit
independently of features such as race, ethnicity, gender, sexual
orientation, religion, or disability. That is an account of fairness,
that has considerable appeal both in the United States and New Zealand.83
It reflects the basic commitment of political liberalism, to treat all
citizens equally, without regard to factors that are not relevant
decision at hand. In the United States, it has become the dominant approach in
the jurisprudence of federal courts
76 For the term “Treaty fatigue” and polling data showing attitudes toward
the Treaty among Māori and Pākehā, see Palmer, above n 8, at 299.
77 See Fischer, above n 3, at 287.
78 See, eg, John Armstrong “Don Brash Tells: Why I Played the Race Card”
The New Zealand Herald (Auckland, 21 February 2004).
79 Walker, above n 29, at 394.
80 At 393.
81 See Geoff Cumming “Non-Maori Say They’ve Had Enough” The New
Zealand Herald (Auckland, 21 February 2004).
82 See ZB Newstalk “Poll Puts National Ahead of Labour” The New Zealand
Herald (Auckland, 15 February 2004).
83 The recurring issue of the Māori seats in Parliament is an example specific
to New Zealand of the tension between race-conscious and race-neutral
regarding affirmative action and voting rights,84 notwithstanding the remedial, as opposed to invidious, discrimination underlying these government programs.
Of course, race-neutrality is not the only conception of fairness that one
might regard as a standard for government decision-making.
Consider, as an
American point of comparison, the use of diversity as a factor in university
admissions, which in practice may mean
a preference (or a “thumb on the
scale”) for women, people of colour, and other members of traditionally
groups: John Doe and Cheryl Hopwood both apply for admission to
the University of State X.85 Suppose John Doe had a slightly higher
undergraduate grade-point average and scored a few points higher on the Law
Test (LSAT); to make the problem simple but unrealistic, assume
there is only one remaining slot in the entering class. Who deserves
in the class? In other words, what does fairness require in this instance? The
case for race- and gender-neutrality in
admissions assumes that deserts must
track merit, and that merit, in turn, must be assessed using standardised
measures of achievement
or ranking, such as LSAT scores. But one may question
whether merit or ability really is identical with easily quantifiable,
objective, types of achievement.86 Someone who
overcomes discrimination and social disadvantage to score only a few points
lower than an applicant who had a privileged,
comfortable life may be
considerably more deserving of recognition, and more meritorious on the less
readily measured dimensions
of hard work, tenacity, adaptability, and
self-confidence. Law schools presumably are interested in graduating successful
and success depends on more than just the ability to score highly on
standardised tests.87 A more radical critique of race-neutrality
would emphasise the social role of universities in securing equal opportunity
for all applicants
including, where necessary, compensating for disadvantages
resulting from a long history of discrimination. The John Doe versus
Hopwood competition may have looked fair, but in fact it was deeply unfair,
469 (1989) (government contracting); Wygant v Jackson Board of Education
 USSC 166; 476 US 267 (1986) (public employment); Hopwood v Texas  USCA5 784; 78 F 3d 932 (5th
Cir 1996) (university admissions). The leading voting rights case is Shaw
v Reno  USSC 102; 509 US 630 (1993); see also Miller v Johnson  USSC 80; 515 US 900 (1995); Bush
v Vera  USSC 56; 517 US 952 (1996); Shaw v Hunt 517 US 899 (1996).
85 This example is from Susan Sturm and Lani Guinier “The Future of
Affirmative Action: Reclaiming the Innovative Ideal” (1996) 84 Cal L
Rev 953 at 960-962.
86 At 964.
87 The Aristotelian principle that like cases must be treated alike, see Aristotle
Nicomachean Ethics at 1130b-1132b, depends on a prior understanding of
which aspects of two cases are normatively relevant. Arguments in favour
of affirmative action, against the principle of colour-blindness, trade on
the irrelevance, for normative purposes, of purportedly objective criteria
that claim to bear on merit, such as grade-point averages and LSAT
John Doe had a leg up at the beginning because he enjoyed access to better schools, safer neighbourhoods, more opportunities for after-school and extracurricular activities, private tutoring for the LSAT, and similar advantages. If one applicant is arbitrarily advantaged relative to another, the process is unfair; thus, fairness requires compensating for inherent disadvantages experienced by applicants.88
This example shows that both sides of a political issue may seek to wave the
banner of fairness in support of their position. American
prohibits race-conscious decision-making; the Waitangi Tribunal has recently
stated that government processes must
be comprehensively restructured to ensure
that they are more race-conscious.89 Which of these approaches is
fair? In political theory, fairness is often defined in terms of equality, with
fairness meaning treating
people as equals in relevant respects. The trouble
is, egalitarianism is just as much a contestable concept as fairness. One can
always ask, alluding to Amatya Sen’s influential lecture, “Equality
of What?”90 Fairness as equality can refer to equal
opportunity, equal access to institutions, “proportionality between
society and reward, proportionality between hardness of work and
reward, proportionality between need and share of social product,
[or] equal (or
otherwise appropriately distributed) power to act in society.”91
The observation of the essential contestability of the concepts of
fairness and equality provides a nice transition into the discussion
of the next
point of comparison between the rule of law in the United States and New
Zealand. The polar opposition between the New
Zealand comprehensive no-fault
accident compensation scheme and the enthusiastic invocation of common law tort
rights by Americans
can suggest a divide in the cultures between fairness and
freedom, but it also may show instead that fairness is a many-faceted concept,
and Americans and New Zealanders understand it in very different
88 Sturm and Guinier, above n 85, at 981-982, 990-991 (arguing that LSAT scores measure parental income more than anything else). This discussion is hypothetical and stylised, and accordingly relies on the assumption that John Doe comes from a well-off family and grew up in a comfortable neighbourhood with good public schools. As critics of affirmative action never tire of pointing out, race-based criteria can be overinclusive and underinclusive with respect to the underlying considerations of social disadvantage. A substantial number of white applicants come from poor or working-class backgrounds, may have experienced significant family, social, or educational disadvantages, and did not simply coast through life before arriving at law school. While government decision-makers are generally permitted to use rough proxies in order to minimise transaction costs, it is impermissible to do so when the criteria used as proxies for the underlying factors make reference to so-called “suspect classifications,” including race and national origin.
89 Wai 262 Report, above n 29.
90 Amarya Sen “Equality of What?” in The Tanner Lectures on Human Values
(Cambridge University Press, Cambridge (UK), 1980).
91 Sharp, above n 23, at 22.
III The ACC vs the Common Law Tort System
Non-Americans find the tort system in the United States to be utterly baffling. It seems like a gigantic roulette wheel, dispensing huge payouts to some injured people while leaving others without any recovery.92
Liability judgments, even in highly complex, technical cases such as medical
malpractice and product design defect, are based on verdicts
rendered by juries
comprised of ordinary members of the community without any experience in the
relevant scientific or engineering
disciplines. Lawyers paid on a
contingent-fee basis solicit clients with
92 Fischer says that “[t]he American system yields large payments to a few accident claimants.” Fischer, above n 3, at 472. While some individual results may seem arbitrary, in the aggregate the tort system does not wildly over-compensate claimants. For a good recent summary of the empirical literature, see Brian H Bornstein and Timothy R Robicheaux “Crisis, What Crisis? Perception and Reality in Civil Justice” in BH Bornstein and others (eds) Civil Juries and Civil Justice (Springer, New York, 2008) 1 at 1–19. Unfortunately Fischer tries to bolster his argument by citing the caricatured description of the McDonald’s coffee case which has been recycled endlessly in media accounts: “Another case in the United States was brought by tort lawyers for a woman who spilled a cup of hot coffee on herself in a fast-food restaurant.” Fischer, above n 3, at 472. Left out of his summary is the fact that the plaintiff, a 79-year- old woman, suffered third degree burns over six per cent of her body, including her inner thighs and genital area, was hospitalised for eight days, underwent skin-grafting surgery, and incurred medical expenses of approximately $11,000. Her theory of liability against McDonald’s was not “I didn’t know coffee was hot,” as is frequently stated, but that McDonald’s, for economic reasons, had a practice of storing and serving coffee at temperatures significantly above those which are necessary for good-tasting coffee and, more to the point, are much higher than those familiar to the ordinary person who prepared and drinks coffee. Coffee at the temperature served by McDonald’s (between 180 and 190 degrees Fahrenheit) will cause full-thickness skin burns in two to seven seconds. The standard warning printed on coffee cups indicating that “contents are hot” does not adequately warn of the heightened risks of coffee served at these temperatures. Nearly 700 people had filed lawsuits against McDonald’s, including many claimants who also suffered third-degree burns, but the company simply settled the cases and refused to change the temperature at which it served its coffee. The jury in the New Mexico case evidently believed that a punitive damages award of $2.5 million was necessary to force McDonald’s to change its policies, but the trial judge reduced the award to $680,000. See Marc Galanter “An Oil Strike in Hell: Contemporary Legends About the Civil Justice System” (1998)
40 Ariz L Rev 717. If Fischer believes that it is unfair or unjust for the
plaintiff to be compensated in these circumstances, then he owes readers
argument to that effect, with full consideration of the facts of the case. As a
teacher of first-year torts, I find it incredibly
frustrating to deal with urban
legends about the civil justice system which are uncritically perpetuated, often
by people and institutions
with an axe to grind against corporate
responsibility. A serious work of academic history ought to do better than to
rely on inaccurate
and misleading anecdotes.
dubious claims, knowing that by presenting an “inventory” of thousands of cases for settlement, a defendant would have to be crazy not to pay substantial sums to hedge against the risk of ruinous liability. For their part Americans, certainly American lawyers, are mystified that New Zealand somehow manages to be a safe place without recognising individual legal rights to sue for negligence or unsafe product design.93
Instead, a comprehensive no-fault compensation regime, administered by a government bureaucracy that would send conservatives in the United States into apoplexy, provides payments for victims of accidental injuries, including those arising out of medical malpractice and occupational exposure to toxic substances. These two legal systems are so far apart that one wonders whether they are even pursuing the same goal.
The fact that two otherwise similar countries handle the problem of accident compensation in such radically different ways provides a nice illustration of Fischer ’s thesis that the systems are founded in very different political ideals. If either the ACC or the common law were manifestly better than the other in some way, it could easily be adopted elsewhere. This is particularly true in the United States with its federal structure and traditionally state-based tort system. In principle nothing would prevent a state from moving wholesale to an ACC-style no-fault compensation system. That there is no political imperative whatsoever in the United States to adopt comprehensive no-fault, despite the vocal criticism of the tort system from many quarters, suggests that there is something stubbornly attractive about the common law. Fischer ’s conjecture is that it is more responsive to the value of freedom, while the New Zealand ACC does better on the dimension of fairness. While I am a bit sceptical that a preference for fairness over freedom is the best explanation for the establishment and continued vitality of the ACC, it must be admitted that a preference for pragmatism does not underlie the abolition of the common law tort system. To the extent a kind of inherent Kiwi pragmatism is the best explanation of New Zealand constitutional culture, particular with respect to the Treaty of Waitangi,94 a very different account must be proffered of the wholesale replacement of a more-or-less functional system of accident compensation with a completely different one.
Sir Geoffrey Palmer, who as a legal academic drafted the White Paper on
reform of the common law system of accident compensation and
as Prime Minister, identifies differences in the political culture of the United
States and New Zealand that
93 The orthodox view of tort liability, strongly influenced by law and economics scholars such as Guido Calabresi and Richard Posner, is that actors and industries who are able to externalise the costs of accidents will be under-incentivised to take precautions to prevent injuries. Therefore potential tort liability serves to deter risky behaviour. See Craig Brown “Deterrence in Fault and No-Fault: The New Zealand Experience” (1985)
73 Cal L Rev 976.
94 See Palmer, above n 8, at 278-290.
why the ACC scheme was adopted:95
[I]t is important to appreciate some of the differences in political culture
between the United States and New Zealand. Historically,
there has not been any
assumption or evidence that New Zealanders are opposed to state action. . . .
When the Woodhouse report came
out in New Zealand, the Labour Party greeted it
with quiet enthusiasm and said that it was democratic socialism. But the scheme
was actually implemented by a conservative National government, which was
dominated by farmers.
Elsewhere Palmer cites the ideal of substantive fairness, as described by Fischer: “There is a strong sense of group identity among the inhabitants of isolated New Zealand – a feeling that the welfare of one’s neighbour is as important to one’s own peace of mind as one’s own good.”96 There must have been a sense that the tort system was leading to unfair results, consistently enough, that its abolition and replacement was required. In fact, although Palmer and others have described dysfunctions within the common law tort system, the shift from tort liability to ACC cover was not intended only to correct flaws in the existing system, but to reorient it entirely. Where the tort system aimed to do justice between an injured party and the alleged injurer, the ACC was designed to provide income- replacement assistance for injured persons, regardless of whether another was blameworthy.
Americans critical of the ACC have not always noticed that Palmer ’s case for abolishing the common law right to sue for injuries in New Zealand makes critical assumptions about the function, role, and legal context of the respective systems. Palmer has repeatedly stated that “the provision of appropriate levels of income maintenance for the incapacitated is a core responsibility of the state of New Zealand.”97
Imagine that one were writing on a blank slate, as it were, and creating
state policy with respect to accidental injuries –
call it the Accident
Problem. The Accident Problem could be seen as bearing a relationship with other
aspects of governance, including:
public health; environmental policy; workplace
safety; social welfare, including superannuation, unemployment compensation,
and housing assistance, and the public provision of health care; and the
regulation of product design and marketing, including medical
pharmaceuticals. In terms of legal categories, a solution to the Accident
Problem might be found in contract law (governing
the voluntary assumption of
rights and duties), criminal law, public law (the administrative regulation of
product and workplace
safety, for example), environmental law, or the regulation
95 Geoffrey Palmer “Commentary” in Richard A Epstein Accident Compensation: The Faulty Basis of No-fault and State Provision (New Zealand Business Roundtable, Wellington, 1996) at 21.
96 Geoffrey Palmer Compensation for Incapacity: A Study of Law and Social
Change in New Zealand and Australia (Oxford University Press, Wellington,
1979) at 64.
97 Geoffrey Palmer “New Zealand’s Accident Compensation Scheme:
Twenty Years On” (1994) 44 UTLJ 223.
the insurance industry. Whatever the legal system did about the Accident Problem could also be understood in functional terms, as contributing to public safety by deterring careless behaviour, distributing the costs of accidents (as insurance does), rectifying wrongs between two parties (corrective justice), providing a civilised alternative to self-help (civil recourse), publicly reaffirming the boundary between acceptable and unacceptable behaviour (expressive theories of tort), compensating the victims of accidental injuries, promoting the efficient allocation of resources by creating the optimal mix of incentives, and respecting the autonomy of individuals and their capacity to make informed decisions about the rights and obligations they should have. Quite simply, the United States and New Zealand have taken categorically different approaches to the Accident Problem, with the US seeing it as having something to do with deterrence, corrective justice, and efficiency, and New Zealand dealing with it as an aspect of social welfare.
Parliament passed legislation enabling the ACC scheme after consideration of
a report of a royal commission, commonly known as the
Woodhouse Report after the
chairman Hon Owen Woodhouse.98 The commission recommended that any
system of accident compensation be designed to reflect five foundational
principles: (1) community
responsibility; (2) comprehensive entitlement; (3)
complete rehabilitation; (4) real compensation; and (5) administrative
efficiency.99 These principles describe the goals, functions, and
form of a public-law social-welfare scheme, not a system designed to deter
or promote the efficient allocation of resources to productive
enterprises. “Few would attempt to argue that injured workers
treated by society in different ways depending on the cause of injury,”
the Woodhouse Report confidently states.100 In the US, at least,
many would argue that injured people should be treated differently, depending on
the cause of injury. Those who
were injured by the wrongful act of another ought
to have a right to recover damages from the wrongdoer; those who were injured
of their own carelessness, or by the act of a third party, ought not to
be able to recover from their employer, or anyone who happens
to be conveniently
made a defendant in a lawsuit. The Woodhouse Commission transformed the
Accident Problem from an issue arising
within a bilateral relationship between
injured party and injurer (with the added complication of first-party medical
third-party liability insurance) into a much broader social
98 See Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (New Zealand Government, Wellington, 1967) [“Woodhouse Report”]. An electronic version of the Woodhouse Report is available at <www.library.auckland.ac.nz/data/woodhouse/>.
99 At .
100 At .
101 See Richard A Epstein Accident Compensation: The Faulty Basis of No-fault
and State Provision (New Zealand Business Roundtable, Wellington, 1996)
Is the difference between the approaches of the US and New Zealand to the
Accident Problem really an instance of the fairness/freedom
answer would be, yes and no. To pick up on the themes of this paper, two
observations can be made. First, one can
supply a “fairness”
account in support of either the ACC or the common law tort system. The American
many elements of the ACC, such as the socialisation of risk
and loss-spreading. Protecting individual autonomy (particularly by giving
individuals a legal entitlement to bodily integrity) is certainly a goal of the
tort system, but so is ensuring that injured people
Nevertheless, while it seems fair to assert that injured people should be
compensated, one must also ask fairness-related
questions about the source of
that compensation, and how the costs of providing compensation should be
allocated, for example among
careful and careless drivers, employers with good
safety records and those with shoddy ones, employers and employees, and so on.
Second, the continuing appeal of the American tort system, notwithstanding all
of the complaints about its capriciousness, cost,
and complexity, has to be
understood in terms of the capacity of tort liability to serve as the sole
effective constraint on some
forms of power. Despite the constant bellyaching by
the business community about the tort system, there is no political will to
it with a no-fault system. This is surprising given the federal
structure of the United States; surely at least one state would have
legislature and governor who are sufficiently responsive to lobbying by business
interests to abolish the tort system in that state.
politicians like to blame campaign contributions by “trial lawyers,”
by which they mean only plaintiffs’
trial lawyers, money alone does not
explain the persistence of the tort system.102 I will argue that a
better explanation is the well-
102 This is concededly not a rigorous empirical
analysis, but some useful data are available from the website OpenSecrets.org,
campaign contributions, lobbying, and other political expenditures,
and is respected for its impartiality. In 2011 the main plaintiffs’
lawyers’ lobbying group, the American Association for Justice (formerly
the Association of Trial Lawyers of America),
spent $3.34 million on lobbying.
In the same year, the US Chamber of Commerce spent $5.96 million on tort reform
alone. Other lobbying
groups with a substantial interest in tort reform include
the National Federation of Independent Business ($2.92 million total lobbying
expenses), the American Medical Association ($21.5 million total), and the
American Hospital Association ($20.48 million total).
Except in the case of the
US Chamber, which breaks out separately its tort-reform efforts, it is difficult
to determine how much
of the resources of a group like the AMA is dedicated to
tort-reform lobbying. Moreover, some of these lobbying efforts may be relatively
issue-specific, such as seeking caps on non-economic damages in medical
malpractice cases. There are also other avenues of influence
to consider, such
as campaign contributions. In the 2012 congressional election cycle, the
plaintiffs’ trial lawyers organisation
contributed $1.34 million to
Democratic Party candidates and only $55,000 to Republicans. Then there is the
matter of political
communications and campaign advertisements. In the
deserved mistrust that people feel toward both large corporations and the government regulators who often fail to do enough to protect consumer safety.
A The Ambiguity of Fairness in Tort and Accident Compensation
Fairness is a foundational value in the English common law of torts, upon which the American tort system is grounded. Consider George Fletcher ’s classic article, “Fairness and Utility in Tort Theory”.103 Fletcher was concerned to argue for a corrective justice foundation for tort rights and to explain the preference for either negligence or strict liability in terms of which principle of liability is most responsive to the value of fairness. For Fletcher, the crucial contrast is between instrumental and non- instrumental conceptions of fairness. His objection is to theories of tort liability that seek to rationalise doctrine with reference to essential social ends, such as loss-spreading, compensation for injuries, deterrence, and efficiency. His distinction, between instrumental and non-instrumental, can be expressed as whether the tort system is essentially a means to further some social end, or whether it is best understood as a means of doing justice between the parties.104 Fletcher believes that tort liability is legitimate when A exposes B to a level of risk that is greater than the risk to which B exposes A; other risks are simply that which are inherent in the background of our social life, and must be borne by each of us individually.105 This paradigm of reciprocity is what Fletcher means by fairness, but notice that it is contrasted with utility, that is, the social ends to which the torts system might be put such as loss-spreading, deterrence, and compensation of injured persons. Fairness, for Fletcher, is essentially an individual-centred ideal. His article is generally cited as representing a Kantian foundation of tort law,106 which emphasises that individual rights cannot be violated to serve social ends. In other words, what Fletcher explicitly refers to as a fairness-based account of tort law is what Fischer would presumably refer to as expressing an American preference for freedom.
Many of the criticisms of the ACC have invoked the idea of fairness,
including a government paper published in 1991 calling for reform.
election cycle, the US Chamber of Commerce spent about $33 million on “electioneering communications,” overwhelmingly supporting Republican candidates. While it is difficult to say anything much more precise, I do think it is reasonable to conclude that plaintiffs’ personal injury lawyers are not drastically outspending business groups in the political arena.
104 At 538, 540.
105 At 542-543.
106 See, eg, Gregory C Keating “Rawlsian Fairness and Regime Choice in the
Law of Accidents” (2004) 72 Fordham L Rev 1857 (defending a different
fairness-based approach to tort liability); Ernest J Weinrib “Toward a
Moral Theory of Negligence Law” (1983) 2 Law and Philosophy
The paper was entitled, Accident Compensation: A Fairer Scheme.107 This title seems to support Fischer ’s thesis, because it invokes fairness as a value which all New Zealanders would presumably endorse. Many of the criticisms and proposals in the paper would be quite familiar and acceptable to Americans, including members of the business community who tend to oppose the existing tort system and would presumably also oppose anything that could be labeled as the “socialisation” of accident compensation. For example, the paper notes that the ACC system has been faulted for moving away from the principle of individual responsibility.108 If there is any staple of conservative American, presumably freedom-based criticism of the tort system, it is that it undermines individual responsibility.109 This looks more like a fairness argument, the gist of which is that people who are injured through their own carelessness get more than they deserve if they recover damages from a defendant with deep pockets. The Fairer Scheme proposals also included a recommendation that employer levies to fund the system be adjusted to reflect differential levels of risk, along the lines of experience- rating used in workers’ compensation regimes. The idea is that it would be unfair for safe employers to subsidise the compensation paid to employees at riskier firms. The proposals, from the conservative end of the political spectrum, were couched in the language of fairness, but they really trade on notions of corrective justice – ie the unfairness of making safe employers pay for the injuries caused either by unsafe employers or by careless employees.110 The emphasis on corrective justice was a significant departure from the Woodhouse principle of community responsibility, which itself was defended on grounds of fairness.
Some of the confusion surrounding the use of the word fairness may be
attributable to the influence of John Rawls, particularly in
A Theory of
Justice,111 in academic thought outside the domain of political
107 WF Birch Accident Compensation: A Fairer Scheme (New Zealand
Government, Wellington, 1991).
108 At 8.
109 See, eg, Walter K Olson The Litigation Explosion: What Happened When
America Unleashed the Lawsuit (Penguin, New York, 1991).
110 See also the use of the term fairness in one of the many reports on the ACC
issued by the New Zealand Business Roundtable. Accident Compensation:
Options for Reform (New Zealand Business Roundtable, Wellington, 1999)
at § 2.3, pp 6-7. The report states that “many may regard it as unfair”
if someone injured in the commission of a crime is entitled to the same
compensation as the victim, those who take precautions and act safely
subsidise the costs of accidents caused by those who take unreasonable
risks, “those who avoid hardship by working hard and buying insurance
subsidise those who choose otherwise,” and there is no right to sue for
111 John Rawls A Theory of Justice (Belknap Press, Cambridge (Mass), 1971).
Fischer has a curious Appendix on the use of the term fairness in other
disciplines, including a brief note on Rawls. See Fischer, above n 3, at 497-
499. He acknowledges that Americans and New Zealanders understand
fairness as a complex, contested concept, and also noted that in his
Rawls, of course, defended a conception of justice as fairness, and did so on self-consciously Kantian foundations. Rawls asked what individuals would agree to in a hypothetical social contracting situation in which they are behind a veil of ignorance, not knowing various personal attributes that in real societies may influence the distribution of goods, including their race, sex, wealth, social class, disability status, level of education, and so on. (Goods, for Rawls, include liberties and opportunities.) Basic rights and freedoms should be available equally to all; other goods should be distributed in such a way that they offer the greatest possible advantage to the least well-off members of society – this is the difference principle.112 This is obviously an egalitarian conclusion, but it is generated from individualistic premises. The parties in the original position are mutually disinterested, have no disposition to benefit others, and are motivated only by principles of reasonableness.113 The difference principle is entailed by rationality alone. Risk-averse individuals who do not know where they are positioned in the social pecking order will reasonably choose a hedging strategy that ensures that if they ended up near the bottom, they will be as well off as possible.114 Rawls wants to demonstrate, using the thought experiment of the original position and the veil of ignorance, that free and equal contracting parties would agree to a basic structure of the governing institutions of their society that promotes the well-being of the least advantaged. It is important to understand, however, that Rawls insists upon the priority of the right to the good, and is not a utilitarian.115 Basic liberties are lexically prior to distribution satisfying the difference principles; individual rights cannot be sacrificed for the sake of social welfare. His hypothetical choice procedure is highly respectful of individual freedom, but it yields a principle for the distribution of resources that is egalitarian.
The Rawlsian structure purports to show that rational individuals who
autonomously choose principles for the basic structure of the
institutions of society will opt for the difference principle. What is the
implication of this conception of ex ante
fairness for the normative
work Rawls made significant concessions to value pluralism. See John Rawls Political Liberalism (Columbia University Press, New York, 1993). Fischer approves of the move in Rawls’ scholarship from a unitary concept of justice as fairness to a political theory that relies on a much thinner account of the legitimacy of political institutions, seeking only an overlapping consensus of reasonable comprehensive doctrines. Fischer ’s embrace of the later Rawls threatens to undercut his neat dichotomy between fairness and freedom which structures the book. Fischer is a historian, not a political philosopher, so it is probably unfair to expect him to be as precise as a philosopher (or a lawyer) in his use of concepts, which are intended only to pick out broader categories that have explanatory significance in the comparison of two political cultures. At some point, though, categories that are too fuzzy lose their explanatory power.
112 Rawls A Theory of Justice, above n 111, at § 13.
113 At 145, 148-149.
114 At 154-155.
115 At § 6.
analysis of the tort system versus the ACC? The tradeoff between the ACC and the tort system might be described as follows: “[W]orkers no longer had the right to sue, but they would enjoy full coverage for work and non-work accidents; employers would be spared the costs of litigation and high administration costs, but the levies they paid were also to cover the non-work accidents of earners.”116 The answer would surely have to do with the risk preferences of people in the original position. To put it another way, are choosers concerned only with the worst-case outcome, or do they also have preferences regarding best-case outcomes? Some people may wish to gamble a bit and opt for a system in which they have a chance at being in the most advantaged group. Experimental evidence appears to show that people in a Rawlsian original position do not, in fact, select the difference principle, and have a preference instead for a system in which the least advantaged group could do better, but the most advantaged group is significantly better off.117
Apart from having to account for varying risk preferences in the original position, a Rawlsian analysis of ex ante fairness with respect to the Accident Problem would have to consider the full range of costs and benefits associated with the competing rules, and to do so with respect to the various contexts in which the Accident Problem might arise: for example automobile accidents, medical treatment, defective products, workplace injuries, exposures to toxic substances; and the different means available of providing compensation and deterring carelessness, including first-party and third-party insurance, administrative regulation, and market mechanisms such as reputational incentives and information-sharing. One might conclude that “an average consumer of automobiles might well prefer a system of first-person automobile insurance, and either first-person or socialized health insurance, and then simply no coverage for those perhaps quite significant costs that fall in- between-no coverage at all, but cheaper automobiles and cheaper automobile insurance.”118 That is essentially the ACC system. On the other hand, one may worry about the incentive effects of a pure no-fault regime like the ACC and may opt for a hybrid approach that considers the conduct of the party causing the injury in determining how the cost of the accident would be allocated.119
Even with the greater conceptual clarity provided by Rawls, these issues
remain difficult, and not readily susceptible to explanation
in terms of a
preference for the values of either fairness or freedom. The
116 Susan St John “Accident Compensation in New Zealand: A Fairer Scheme?” in P Dalziel and others Redesigning the Welfare State in New Zealand (Oxford University Press, Wellington, 1999) at 158.
117 See, eg, Norman Frohlich and others “Choices of Principles of Distributive Justice in Experimental Groups” (1987) 31 American Journal of Political Science 606.
118 Benjamin C Zipursky “Rawls in Tort Theory: Themes and Counter- Themes” (2004) 73 Fordham L Rev 1923 at 1932.
119 That is Richard Epstein’s proposal. See Epstein, above n 101,
structure builds in concern for both freedom, in the form of the lexical priority of basic liberties, and fairness, in the form of consideration of the distribution of resources from the standpoint of the original position. Any sophisticated approach to something like the Accident Problem must similarly respect both fairness and freedom.
B Trust and Mistrust
The law of negligence and product liability is comprised to a significant extent of cases litigated in response to failures of other types of legal regulation. To cite only one example, manufacturers of asbestos- containing products knew for many years of the dangers posed by asbestos to workers exposed to airborne fibres, yet they did nothing. One of the largest manufacturers of asbestos products, the Johns- Manville Corporation, had a practice of withholding chest x-ray reports from its own employees, reasoning that as long as they did not know they were suffering from serious lung diseases, they would continue to work for the company and not sue for damages for their injuries.120
The president and general counsel of Johns-Manville reportedly called other companies fools for disclosing to their employees that they had asbestos-related injuries, noting that the company saved a lot of money if they simply employed workers until they dropped dead.121 The company fought all attempts to establish legal responsibility for causing employees’ injuries, and had a practice of settling cases only with the use of strict confidentiality agreements that prevented plaintiffs from sharing information about the dangers of asbestos with other workers. Government regulators and large insurance companies were also aware of the risks of asbestos but did nothing to protect the health of employees exposed to these products.
What finally made a difference to the health and safety of thousands of employees was the tort system and the plaintiffs’ lawyers who doggedly pursued the companies for damages. A similar story can be told about the tobacco industry, which engaged in a massive, decades-long campaign of secrecy and disinformation. Indeed, torts casebooks include a long list of instances of regulatory failure combined with wrongdoing by powerful corporations: Agent Orange, DES, thalidomide, the Chevrolet Corvair and the Ford Pinto, the Dalkon Shield intrauterine device, the diet drug fen-phen, the painkiller Vioxx, breast implants, artificial hips – these are on the B-list of American consumer protection fiascoes, behind asbestos and cigarettes.
As far as I am aware, New Zealand has not experienced a comparable history of
corporate misconduct threatening public health and safety.
120 See, eg, Paul Brodeur Outrageous Misconduct: The Asbestos Industry on
Trial (Pantheon Books, New York, 1985).
121 Testimony of Charles H Roemer, Deposition taken 25 April 1984, Johns-
Manville Corp v United States of America, US Claims Court, Civ No 465-
83C, cited in Barry I Castleman Asbestos: Medical and Legal Aspects (5th
ed, Aspen, New York, 2005).
New Zealand may have engaged in an “orchestrated litany of lies”
in response to the inquiry into the Erebus crash, but
the accident itself was
the result of a terrible series of miscommunications, not an active policy of
covering up harm.122 I have heard it suggested that, as a
relatively small country, New Zealand has the luxury of free-riding on the
product safety regimes
of the nations in which imported goods are manufactured.
There may be an element of truth to this, but it seems more plausible to
that fiascoes like DES and the Ford Pinto are less likely to occur in a system
in which there is a relatively high level
of trust among industry actors and
government regulators. In the discussion of the Treaty of Waitangi in the
previous section, I
suggested that constitutionalism in New Zealand may be
analogised more closely to relational contracting than to a one-off bargain
whose terms remain static. A similar dynamic may play a role in the regulation
of product safety. In a smaller, more centralised
society, manufacturers may
see themselves as embedded in an ongoing relationship with consumers and thus
less prone to under- protect
their interests in safety.
Fischer ’s book may be a useful corrective to the idiotic insistence on
“American exceptionalism” that is such a
lamentable feature of
political discourse in the United States,123 for he attempts to show
how a similar society may be committed to the same set of political ideals, but
nevertheless realise them
in different ways. If it turns out that these
different conceptions of ideals such as democracy and the rule of law lead to
results, this is something of which Americans should take notice. While I
have said a great many things about the difference between
culture and that of New Zealand, the best way to capture the distinction may be,
ironically, from a political
philosopher arguing that doing justice in New
Zealand may be to stop worrying so much about justice and “continue to
and fudge along” – albeit in a principled way.124
One of the admirable features of American “rights talk” is the
hope that justice may be done. We love to quote Martin
Luther King Jr ’s
maxim that “the arc of the moral universe is long, but
122 See the book by the High Court judge who presided over the commission of inquiry, Peter Mahon Verdict on Erebus (Collins, Auckland, 1984). For a recent account, sympathetic to Mahon’s conclusions, see Paul Holmes Daughters of Erebus (HarperCollins, Auckland, 2011).
123 President Obama is incessantly attacked by conservative commentators for not believing in American exceptionalism, so in response he seems to mention it as frequently as possible. For citations to criticism, see Andrew Sullivan “The Big Lie” The Daily Dish (4 November 2010) <www. theatlantic.com>; for a recent statement by Obama seeking to rebut the criticism, see David Nakamura “Obama Touts American Exceptionalism, End of Wars in Air Force Graduation Speech” The Washingon Post (Washington DC, 24 May 2012). One refreshing feature of New Zealand politics is the absence of a perceived need for chest-thumping patriotism.
124 Sharp, above n 23, at 26.
it bends toward justice.” Ironically, however, aiming at ideal notions of justice may cause Americans to overlook the importance of process and its associated virtues such as respectful engagement, flexibility, compromise, and tolerance for ambiguity. New Zealand law and history reflect a greater appreciation for these virtues, and this is something from which American lawyers could learn a great deal.