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Economides, Kim --- "Measuring Law's impact: the future of socio-legal studies in Aotearoa New Zealand" [2013] OtaLawRw 7; (2013) 12 Otago LR 167

Last Updated: 23 April 2015

^{Inaugural Professorial Lecture}

Measuring Law’s Impact: The Future of Socio-Legal

^{Studies in Aotearoa New Zealand}

Kim Economides* I Introduction

Tēnā koutou, tēnā koutou, tēnā tatau katoa. Ngā mihi ngakau ki a koutou.

Deputy Vice-Chancellor, Pro-Vice-Chancellor, Dean, Colleagues, Ladies

^{& Gentlemen: all inaugural lecturers are faced with a challenging task in}

^{satisfying an audience comprising both the knowledgeable and relatively}

^{ignorant: the risks are that one merely convinces the knowledgeable}

^{of one’s ignorance or, even worse, the relatively ignorant are led to}

^{believe that one is knowledgeable. When also branded a “Leading}

^{Thinker”1 in a Faculty teeming with talented intellectual leaders, and}

^{in a country where “tall poppies” rightly are viewed with scepticism,}

^{failing to meet expectations seems almost inevitable. Even so, rather}

^{than present a popularised, possibly entertaining summary of previous}

^{research findings (the safer path chosen for my previous inaugural),}

^{this evening I thought I should look more to the future and explain the}

^{direction to which I intend to steer the new Legal Issues Centre2 and,}

^{more importantly, what the new Centre might dare to achieve in seeking}

^{to challenge, if not lead, (socio-)legal thought throughout New Zealand.}

^{However, to sound a note of caution, the fate of leading thinkers is not}

^{exactly encouraging: if too heretical – as with Archimedes – they risk}

^{murder at the hands of the ignorant; if lucky they will just be ignored,}

^{misunderstood or considered insane by contemporary expert opinion.}

^{Whatever my fate this evening, salvation may lie either in the technology}

^{of the podcast, or published versions of this lecture,3 that will enable my}

^{“leading thoughts” to survive and connect with other audiences further}

^{afield, both within and beyond New Zealand.}

The inaugural lecture is a serious and challenging rite de passage of

^* Professor and Dean, Flinders Law School, Flinders University, Adelaide; former Professor and Director of the Legal Issues Centre, University of Otago.

^{1 Otago “Leading Thinkers” initiative: <www.beehive.govt.nz>.}

^{2 University of Otago Legal Issues Centre <www.otago.ac.nz>.}

^{3 This is a revised version of my Inaugural Professorial Lecture delivered}

^{at Otago on 22 September 2010. Kim Economides “Measuring Law’s}

^{Impact – The Future of Socio-Legal Studies in Aotearoa New Zealand”}

^{(Podcast, 22 September 2010) <www.otago.ac.nz>. See also K Economides}

^{“Socio-legal Studies in Aotearoa/New Zealand” (2014) Journal of Law}

^{and Society (forthcoming). I am grateful to the Dean of the Law Faculty,}

^{Professor Mark Henaghan, for his warm and enthusiastic support, to}

^{Alex McRae and Marie Callandar for research assistance and to friends}

^{and former colleagues at Otago for helpful information and insights.}

both a public and private nature and it is customary to acknowledge the invaluable support of those who have inspired or assisted one’s career. On this occasion, apart from thanking my family and colleagues, I must also express deep gratitude to Grant and Marilyn Nelson for their generous endowment – and vision – in establishing a research centre dedicated to achieving a more accessible, affordable and efficient legal system for ordinary citizens. I should also like to thank my students for their perceptive questions and cheerful optimism that have, more than they realise, inspired me to see New Zealand’s legal system through fresher eyes.

This lecture poses three basic questions about observing, mapping and influencing legal behaviour in New Zealand. They are directed to slightly different, possibly overlapping, audiences on how future legal scholarship and education might be reoriented to exert greater influence in and on the so-called “real world.” It is especially important to connect with those outside academia and, within academia, the next generation of legal scholars. My point is not that “socio-legal” studies should replace traditional legal analysis – or indeed that this brand of scholarship is totally absent in New Zealand – but rather that the latter, without the former, is insufficient. Neither do I deny that doctrinal analysis, or even plain common sense and pragmatism, have contributed to law reform. My core argument is that far more attention be devoted to “external” perspectives on law, particularly drawing on the social and behavioural sciences, but not excluding the humanities or natural sciences either. I believe establishing and nurturing this “external” perspective is crucial to the future success of the new Legal Issues Centre and its audacious, perhaps naïve, mission to actually improve the legal system – or at least change how we think about it.

My first question asks, “Do you need to be a bird to be an ornithologist?” and is intended to explain what a socio-legal perspective has to offer. My second question, “Have socio-legal studies migrated to New Zealand?’’ looks at the extent to which “socio-legal studies”⁴ are already present in New Zealand. My third question asks whether university researchers have a duty to protect or improve the environment inhabited by our research subjects: “Should ornithologists build bird sanctuaries?” Let me now delve deeper in answering each of these questions, first by taking stock and reviewing current progress in establishing socio-legal studies in New Zealand, before gazing into my crystal ball to assess whether this approach to legal scholarship is viable and can make an impact.

⁴ I define “socio-legal studies” with reference to the Socio-Legal Studies Association (SLSA)’s definition: “Socio-legal studies embraces disciplines and subjects concerned with law as a social institution, with the social effects of law, legal processes, institutions and services and with the influence of social, political and economic factors on the law and legal institutions. Socio-legal research is diverse, covering a range of theoretical perspectives and a wide variety of empirical research and methodologies.”

2. Observing legal behaviour: do you need to be a bird to be an ornithologist?

This first question raises an epistemological point concerning assumptions underpinning research and is intended mainly for legal practitioners and judges with first-hand experience – or an “internal” view – of the legal process. They may well feel inclined to dismiss “Ivory Tower” speculation as at best “detached” or at worst “harmful”, particularly coming from a foreign legal academic who has not practised law in New Zealand, a view possibly shared by policymakers and politicians. Some academics – whether or not legally qualified – may also be sceptical, particularly if they prefer a more detached role for their scholarship that speaks primarily to other academics rather than those engaged in legal practice or law reform. My short answer to this question is an emphatic “no” and that it is vital that the intellectual space for “socio-legal” research be recognised, sustained and, if necessary, defended. Why do I believe this?

Writing 40 years ago, Rick Abel, a pioneer of the US “law and society” movement noted an important distinction between “law books” and “books about law”; the latter being a mode of reflection upon the legal system, while the former rationalizes rules, mainly in response to demands made by the legal system itself. While legal practitioners – and I would add litigants, administrators, journalists and other participants

- have a particular perspective on the legal process, these views, as Abel observes, should not be allowed to eclipse other equally valid scientific perspectives capable of revealing deeper understanding about the scope and nature of legal behaviour:⁵

Neither legal training nor professional competence is adequate qualification to write about the legal system, any more than an Olympic swimmer or leading opera singer is qualified to explain the hydrodynamics of swimming or the physiology of singing. This is not to deny that practice of a professional skill permits unique insight into the skill, but understanding is a different matter. For this reason, efforts to understand legal action have borrowed the perspectives of other intellectual disciplines; the social sciences and the humanities have all been used to illuminate legal phenomena.

In order to assess and evaluate law’s social, cultural and economic impact – and expose the gap between legal ideals and legal reality – we need methodological tools and insights drawn from the social and behavioural sciences, and also the humanities, that place law within its wider context. I would also wish to include “applied comparative law” within our toolkit although, as Nigel Jamieson and others have demonstrated, “legal transplants” may be rejected, foreign experience can still assist law reform.⁶ I also believe there is much that New Zealand

⁵ R L Abel “Law Books and Books about Law” (1973) 26 Stan Law Rev 175.

^{6 N J Jamieson “Legal Transplants: Word-Building and Word-Borrowing}

^{in Slavic and South Pacific Legal Discourse” (2011) Victoria University}

^{of Wellington Law Review 42. See also H C Gutteridge Comparative Law}

^{has to offer to law reformers overseas and that the traffic in good ideas}

^{for reform will be two-way.}

Such “external” views of the legal process enable us to understand how the system and its actors actually behave, or could behave, and to improve upon subjective anecdotal evidence that, consciously or unconsciously, may allow facts to be distorted by bias or prejudice. “Socio-legal” research, though not without limitations such as its inability to penetrate the idiosyncratic nature of legal reasoning, nevertheless articulates an “external” view enabling us to transcend subjective experience. The “socio-legal” field - which examines the “law in action” and produces “books about law” – has been marked over the past four decades by vigorous if still unresolved substantive and methodological debates. Taken together with parallel scholarly developments such as “Law in Context”, “Law & Society”, “Sociology of Law” – and interdisciplinary legal studies more generally – we can see that what began as a marginal, almost dissident, academic movement in the 1960s and 1970s, reacting against the constraints of legal formalism (the “black- letter” law tradition) and often borrowing research methods developed in criminology and transferring these from criminal to civil justice, has achieved stability and respectability to become very much part of the mainstream of Anglo-American legal scholarship.⁷ The focus of the socio- legal canon today reaches far beyond observing the behaviour of lawyers and courts and includes regulation, governance, technology, gender and postmodern theory that, arguably, have collapsed the boundaries of law as an autonomous discipline. The irony is that “context”, which once was peripheral, is now a constituent part of the new “core” and few, if any, modern legal scholars would dream of researching or teaching legal rules totally abstracted from their social, political, economic or many other contexts.

However, according to an influential report called Law in the Real World, a disconcerting problem remains, and not only in the UK, concerning “capacity” and the inability to establish empirical research skills so that the information needs of legal policymakers, professionals and law reformers – and I would add those involved in theory construction – are adequately met.⁸ While armchair “socio-legal” theorising has blossomed

(Cambridge University Press, Cambridge, 1949) 9; O Kahn-Freund “On Uses and Misuses of Comparative Law” (1974) 37 Modern Law Rev 1; E Stein “Uses, Misuses – and Nonuses of Comparative Law” (1997) 72

^{Northwestern Law Rev 198.}

^{7 See generally accounts of socio-legal development in the UK: D R Harris}

^{“The development of socio-legal studies in the United Kingdom” (1983)}

^{3 Legal Studies 315; C M Campbell and P Wiles “The Study of Law in}

^{Society in Britain” (1976) 10 Law & Soc’y Review 547.}

^{8 H Genn and others Law in the Real World: Improving Our Understanding}

^{of How Law Works. Final Report and Recommendations (The Nuffield}

^{Foundation, London, 2006) at 26-27. See also Adler Recognising the Problem:}

^{Socio-Legal Research Training in the UK (2007) University College London}

^{<www.ucl.ac.uk>.}

a stable empirical research base mapping and explaining legal behaviour has not – and significant gaps in our knowledge of the “law in action” remain. But what is the story here in New Zealand and to what extent has legal thought, and thought about law, engaged with socio-legal scholarship, particularly empirical legal studies? More importantly, can these knowledge gaps be filled?

III Mapping legal behaviour: have socio-legal studies migrated to

^{New Zealand?}

My second question, directed to those who produce and consume research, is more descriptive and focuses on the extent to which legal research (ie both “law books” and “books about law”) adequately explain legal behaviour in New Zealand? I am also interested in the actual impact of this research on policy but find this much harder to assess. This task may become easier if the PBRF mutates, as did the UK’s RAE into the REF, to measure research quality with reference to “impact”. My short answer here is more qualified: that legal research seemingly has made a contribution in certain defined areas, but not others, and that “socio-legal” research, if it can overcome some obstacles, could make an enduring and significant contribution – and potentially across a very wide range of social and legal issues. My basic point is that investment by potential producers and consumers of socio-legal research in this brand of scholarship could produce significant dividends in terms of enhancing rational decision-making across and beyond government departments, but particularly regarding legal service provision managed under the aegis of the Ministry of Justice. Moreover, such research could help us understand, and at a deeper level, the underlying nature of problems with which policymakers repeatedly grapple.

The fact that the “socio-legal” label is barely visible in New Zealand does not mean this brand of legal scholarship is either absent or unknown. The extended version of this lecture documents the presence of socio-legal scholarship in New Zealand and argues that future prospects are in fact far better than many might predict.⁹ From my overview of university legal scholarship, at and beyond Otago University, it is clear that law continues to be connected with a host of other disciplines; not only sociology, but also criminology, economics, psychology, psychiatry, history, anthropology, politics, geography and religion. Research on the family, criminal justice, Indigenous rights, natural resources, the human genome and emerging technologies often has an empirical as well as interdisciplinary component and frequently reaches reputable international journals. And distinguished foreign scholars, such as Dame Hazel Genn, the first Chair of Socio-Legal Studies in the UK, visit or write about “law and society” in New Zealand. The Law Foundation makes a unique and vital contribution by funding such visits as well as legal research that benefits the New Zealand public. The Ministry of Justice,

⁹ See K Economides, above n 3.

and particularly its Strategic Policy Unit, is interested in quantitative research though this is more likely carried out “in-house” or by private consultants rather than university researchers. That is partly because, to date, monitoring the operation of our legal system, particularly regarding civil justice and legal services has, unlike other areas, received scant attention from Law Faculties, a gap that the Legal Issues Centre intends to fill. Let me briefly explain how this might be done. More is required than the discovery of superficial facts about legal behaviour, and then seeking to measure them; a deeper approach is required.

Building on court user surveys, which examine perceptions and levels of satisfaction with the current system, a second phase of research might explore basic principles and objectives that could, or should, govern the civil justice system.¹⁰ A series of discrete, yet inter-connected, projects

– some of which are being conducted by doctoral students – will lay foundations for our ambitious Civil Justice Design Research Programme that in the medium-term should identify underlying principles and promising reform strategies capable of addressing endemic problems, but in a manner respectful of New Zealand’s traditions and indigenous culture, whilst also being open to the advantages presented by new technology. These projects draw upon a range of interdisciplinary and comparative approaches that, for example, investigate the Disputes Tribunal, lawyer discipline, diagnosis and referral of legal issues, by-passing courts, stress induced by regulatory and litigation processes as well as the process of law reform itself.

Our priority is the costs and delays litigants experience when entering and passing through the present court system. We are planning a large- scale project looking at delays in our court system that should provide original data and a national overview of trial length that will inform, if not steer, current debates on how best to expedite trials. This project is an important prelude to developing alternative, possibly more radical, approaches that may deliver justice even more efficiently and effectively to citizens. Through opening up novel theoretical and comparative perspectives on civil justice, drawing upon neglected ideas and experiences found in legal theory, foreign and Indigenous legal cultures and, where appropriate emergent technology, we intend to experiment through small-scale pilot studies with new ways of handling disputes that may be less stressful, fairer and more direct than formal procedures that tend to evolve reactively within official legal systems. In short, the Centre is committed to increasing the intellectual resources available to law reformers determined to improve New Zealand’s legal system.¹¹

¹⁰ S Righarts and M Henaghan “Public Perceptions of the New Zealand Court System: An Empirical Approach to Law Reform” (2010) 12 Otago Law Rev 329. See also K Economides “’Socio-Legal’ Research and Access to Justice in New Zealand” (September, 2010) At The Bar 11.

¹¹ K Economides, A Haug and J McIntyre “Are Courts Slow? Exposing and Measuring the Invisible Determinants of Case Disposition Time” (2013) Department of Economics, University of Otago, Discussion Paper 1317

But can socio-legal research follow through and impact on legal policy? I now wish to consider what could be done to strengthen our knowledge base and persuade both consumers and producers of socio-legal research to invest in projects designed to influence policy so that real, rather than ephemeral, change actually happens? What are the obstacles and how might they be surmounted? A key problem to be tackled is that of “policy-implementation”, the fact that good ideas may be produced by quality research but then not be implemented because the political culture is so adept at absorbing rule-change, but without actually changing on the ground. This problem exists almost everywhere and is also present here. For example, in 2004 the Law Commission produced an excellent critique of New Zealand’s court system in a report called Delivering Justice for All.¹² The report drew upon foreign research and experience before proposing a range of sensible recommendations, which included assessment of their economic impact, and put first citizens, rather than the legal profession. I would strongly commend anyone interested in reforming courts and tribunals to read it carefully. This excellent blueprint containing 160 “renovations” delivered a coherent reform package, but one that was left on the shelf. But what I find most striking here is that academic input was somewhat “understated” and although Ngatata Love, a Commissioner and Professor of Management at Victoria University, helped establish a valuable dialogue with Maori that included visiting several hui, there seems to have been no sustained dialogue with the community of academic lawyers.

IV Influencing legal behaviour: should ornithologists build bird

^sanctuaries?

My third question is unashamedly normative and invites my university colleagues, especially legal academics, but also law students and those working in cognate fields, to reflect on their role and responsibility to act as social critics. It asks whether describing and mapping behaviour is sufficient and, if not, whether we have a duty toward our research subjects and the environment they inhabit. This is awkward to answer for at least two reasons: first, because it pushes the boundaries of what is legitimate academic enquiry and forces us to confront complex issues of political engagement and policy formation; second, from a methodological standpoint, a real tension can arise between impartial measurement and responsible observation. Is seeking change in our research subject something to be strived for, or something to be avoided? For example, psychologists familiar with the “Hawthorne effect” will appreciate how behaviour being experimentally measured can alter, for better or worse, simply in response to the fact that behaviour is being observed. It may be possible to sustain this tension between observing and improving the legal system, but only if we can understand and

<www.business.otago.ac.nz/econ/research/>.

^{12 Law Commission Delivering Justice for All: A Vision for New Zealand Courts}

^{and Tribunals (NZLC R85, 2004).}

^{respect the boundaries separating different research roles.}

Perhaps the first obstacle is to persuade those working in universities (and also the legal profession) that they can and should improve the legal system. It is worth remembering that universities established in New Zealand are under a statutory obligation, contained in section 162 (4) (a) (v) of the Education Act 1989, to accept as part of their defining role the responsibility to act “...as critic and conscience of society.” And lawyers in New Zealand have, since 2008, been under a statutory duty to “uphold the rule of law and to facilitate the administration of justice” (section 4 (a) Lawyers and Conveyancers’ Act 2006). How should legal academics discharge their statutory duty and to what extent are they obliged, legally if not morally, to make a difference? Is it enough to shout from the sidelines and should legal scholars aim to be more closely involved with the policy process to exert real influence on legal development? We have judges, lawyers, politicians, regulators, civil servants and the police to make, apply and enforce our law; are not legal academics supposed to stay in their Ivory Tower (or the law library) and just teach students and comment from the sidelines? Does it really matter if research is ignored? And if we do dare to venture into the policy arena, might another (statutorily defined) and rightly cherished characteristic of universities, namely “intellectual independence”, be compromised?

Socio-legal research is clearly not for everyone and there are many ways academics perform the role of “critic and conscience” including through doctrinal analysis, a point well illustrated by previous IPLs from this Law Faculty.¹³ Academic lawyers do in fact comment frequently in the popular press (and increasingly blog) or are heard on TV and radio, but when it comes to making written submissions to the Law Commission they can appear quite mute. The late Richard Sutton, who was seconded to the Law Commission, was clearly an exception. Of the 3,000 submissions to the report on liquor not one came from a legal academic, and similarly with the Law Commission’s report on access to statute law.¹⁴ And I was surprised to discover I was the only academic to make a written submission to the recent Bazley Review of Legal Aid (the only other submission coming from a law school was from a student at Auckland).¹⁵ This silence no doubt reflects low expectations many have that research should impact on policy, particularly during its gestation period. However, Simon Power, the Minister of Justice, announced one month ago in this room that his personal views on vulnerable witnesses had been altered by research carried out at AUT and also a visit to

¹³ See University of Otago, Inaugural Professorial Lectures (Podcasts)

^{<www.otago.ac.nz/news/itunesu/podcasts>.}

^{14 Law Commission Alcohol in Our Lives: Curbing the Harm (NZLC R114,}

^{2010) and Law Commission Presentation of New Zealand Statute Law (NZLC}

^{R104, 2008).}

^{15 K Economides “Reforming Legal Aid” [2010] New Zealand Law Journal}

^{5; K Economides “Submission to the Justice and Electoral Committee on}

^{the Legal Services Bill” <www.parliament.nz>.}

Germany. He also announced changes to control the legal aid budget that implemented recommendations of the Bazley Review which academic research patently did not influence.¹⁶

Perhaps the reception given socio-legal research findings will not be nearly so hostile as some might fear, and indeed some “birds” have been demanding more “ornithology”. Most recently the Chief Justice, Dame Sian Elias, has warned that law schools risk becoming detached and “...increasingly aloof from legal practice and the work of New Zealand courts”, and to the detriment of both the academic and judicial functions.¹⁷ Sir Ivor Richardson was arguing over 20 years ago in Williams v Attorney-General that social science, where appropriate, could even be cited in Court:¹⁸

...it ought always to be important in policy analysis to assess all direct and indirect effects where and to the extent that that is possible. In a case of this kind [a duty of care owed by customs officials] I consider that the Court should be furnished with arguments and available analytical material so that proposed policy alternatives are considered in an informed way rather than on instinctive responses supported by generalized reasons.

Empirical, as opposed to doctrinal, legal research tends not to influence law reform for a variety of reasons. Funding is limited and with no strong tradition in law schools of teaching quantitative and qualitative research skills it is hardly surprising they are either absent or deficient. Timing is another barrier. The lack of synchronicity between policy and research cycles, each governed by different expectations regarding the production and control of research findings, means that public servants often work to tight time frames of 2–3 months, sometimes less, dictated by the need for a “quick fix” solution and the limited attention span of politicians, the media and the general public. By contrast, empirical researchers may need 2–3 years to design, execute and deliver a rigorous project resulting in publication that satisfies their primary audience: peer reviewers and PBRF assessors. And other obstacles, arising out of either the research or policy context, may stunt the growth of socio-legal studies. For example, those funding “socio-legal” research might feel vulnerable to its findings. They may therefore decide not to fund sensitive research or, if they do, seek to control publication, if not actually manipulate findings. Is it reasonable or realistic to expect researchers to be “critics” and “bite the hand that feeds?” It is naïve to think that “intellectual independence” will not be put at risk whenever researchers venture beyond their Ivory Tower.

A key challenge then is how to walk this tightrope between relevance and autonomy and to offer informed, constructive criticism without surrendering to short-term demands of government, powerful interest

16. Simon Power, Minister of Justice “Challenging Tradition” (Public Lecture, Faculty of Law, University of Otago, 25 August 2010).
17. S Elias “Law, Like Love: Why ‘Guardian’s of the Law’s Rationality’ Fail to Satisfy” [2010] CanterLawRw 13; (2010) 16 Canterbury Law Review 187 at 195.

^{18 [1990] NZCA 20; [1990] 1 NZLR 646 at 681.}

groups or those who control purse strings and, indirectly, academic research agendas. I shall resist the temptation to give my captive audience a long wish list of measures designed to establish and secure the place of socio-legal studies within law faculties – though the flexible application of the SLSA Statement of Principles of Ethical Research Practice¹⁹ and PBRF criteria – could do a great deal to encourage and protect empirical research on law and the legal system. But I offer a short wish list in my conclusion. The most difficult challenges ahead probably lie outside universities and researchers, lawyers, judges and policymakers need to build greater mutual trust, and respect, primarily through a better understanding of each other ’s strengths and concerns.

Socio-legal scholars are able to assist with the discovery and measurement of “facts” but they can do much more. Avoidance of superficial rule change – or “tinkering”, ie change that can easily be absorbed and serves only to delay change that might actually make a lasting difference – is another significant contribution. “Tinkering” merely transfers problems elsewhere; and often exacerbates rather than resolves problems. For example, the Woolf reforms of civil procedure illustrate well what Hazel Genn describes as “policy making in the dark”. Research conducted on the impact of the Woolf reforms of civil procedure suggests that following their introduction trial costs actually increased, or were merely “front-loaded” to the pre-trial stage. Lord Justice Jackson’s costs review made a genuine effort to learn from research findings (particularly economic analysis) and foreign experience, including that of New Zealand, and consequently is far better placed to withstand criticism and inform policy. Socio-legal scholars have far more to offer than running around with tape measures, they can explain the wider economic, social and cultural contexts in which legal rules and processes evolve and point out, if not predict, future options. But illuminating the way forward requires theory, imagination and principle. Personally, I am particularly attracted to David Trubek’s notion of “critical empiricism” that insists “law and society” research “...should be critical without being cynical, empirical but not positivistic, normative but not subjective, detached yet not disinterested.”²⁰ Theory matters, for it gives us criteria to measure success and, when linked to comparative analysis, the capacity to measure relative progress regarding the implementation of policy.

Invoking legal “theory”, “principle” and “imagination”, none of which sit comfortably with “pragmatism”, is perhaps unwise in New Zealand. According to Matthew Palmer, this kind of sententious exhortation could cause my present audience to “tune out” or “turn off”. Commenting on “constitutional culture” Palmer notes:²¹

¹⁹ See Socio-Legal Studies Association Statement of Principles of Ethical

^{Research Practice (SLSA, 2009) <www.slsa.ac.uk>.}

^{20 D Trubek “Complexity and Contradiction in the Legal Order: Balbus}

^{and the Challenge of Critical Social Thought About Law” (1977) 11 Law}

^{& Society Review 529.}

^{21 M Palmer “New Zealand’s Constitutional Culture” (2007) 22 NZULR 565}

We expect politicians to fix problems as they appear and expect them to fashion world-leading innovations with number eight wire after tinkering in the constitutional shed. The dominant New Zealand culture has little articulated sense of history, especially our own...[and] tends to be uncomfortable with high-flown rhetoric in case it seems pretentious. We don’t do the vision thing, let alone have a dream.

Note it is the politicians – not lawyers, judges, public servants let alone legal academics – that are expected to do the “fixing”. Notwithstanding this culture, my personal dream, vision, or “leading thought” is that over time the Legal Issues Centre will assist with the pressing task of “fixing” our legal system – and my “quick fix” pragmatic “bodge” is to establish early in the new year, not a shed or bird sanctuary, but a national “Justice Forum”, comprising leaders from the legal professions as well as representatives of all stakeholders with an interest in improving the justice system, that would meet on an annual basis in Wellington.²² In this way socio-legal (and other) perspectives might be directly injected into the policy arena, with stakeholders in the justice system learning more about each other ’s concerns.

IV Conclusion

Perhaps I might conclude by remembering the famous dictum of that ancient “leading thinker” Archimedes: “‘δῶς μοι πᾶ στῶ καὶ τὰν γᾶν κινάσω.”²³ If law reform in New Zealand follows the earth here in having its own unpredictable ideas about where, when and how it chooses to move, I trust I have shown the importance of discovering where the fulcrum for fundamental change in New Zealand’s legal system may lie: the quest should not just be directed at mapping legal behaviour on the surface, we need also to expose underlying fault lines that threaten the basic design and architecture of our justice system. And this may involve constructing some new structures on more solid foundations. The Chief Justice is absolutely right and lawyers do need to work collaboratively in stronger partnerships. But how might this happen?

In order to advance the quest for a distinctive approach to socio-legal studies in New Zealand, one that harnesses and integrates the natural resourcefulness, energy, pragmatism and sense of justice of the New Zealand legal mind-set, I propose the following action:

1. The creation of a New Zealand network of socio-legal scholars that meet regularly, possibly under the aegis of the Law and Society Association of Australia and New Zealand (LSAANZ), which might consider holding annual meetings in New Zealand, if not in

at 571.

^{22 K Economides “A New Zealand Justice Forum?” (2011) 154 NZ Lawyer}

^{22; K Economides “Justice Forum: Setting the Agenda” (2011) 157 NZ}

^{Lawyer 22; B Toy-Cronin and K Economides “Justice Forum: Litigants}

^{in Person v Legal Representation?” (2012) 176 NZ Lawyer 16.}

^{23 “Give me where to stand and I shall move the earth.” Quoted by Pappus}

^{of Alexandria in Synagoge, Book VIII, prop 10, §11.}

alternate years, then perhaps triennially. This socio-legal network needs to concentrate on nurturing relationships between: socio- legal researchers based in New Zealand’s law faculties; researchers based in other disciplines; and stakeholder interests outside the university such as the legal professions, the judiciary, policy- makers and law reformers, who all need to be educated about the nature and scope of the socio-legal enterprise;

2. The establishment of an independent national legal education review that evaluates, quantitatively and qualitatively, how well New Zealand’s legal needs are being met by legal training currently on offer.²⁴ As part of this education review, there should be an examination of the place of socio-legal studies in the law curriculum and also the potential of double degrees to enhance key attributes of law students and researchers and whether they are being adequately prepared for work in or about legal practice, including performance of the specific “critic and conscience” roles expected of both New Zealand’s legal scholars and practitioners;

3. The guarantee of funds for independent socio-legal research by increasing the reserves of the New Zealand Law Foundation with universities also investing in financial and structural support for socio-legal researchers;

4. The provision of training for postgraduates and established legal scholars in research ethics and socio-legal research methods to be offered both by universities and at dedicated centres on both the North and South (and in time the Pacific) Islands;

5. The fine-tuning of audit mechanisms such as the Performance- Based Research Fund (PBRF) to better accommodate socio-legal and collaborative empirical research while also guaranteeing a platform for public discussion and dissemination of this research through the New Zealand Justice Forum in order to encourage, reward and scrutinise the production of applied socio-legal research;

6. The exploration of new publication outlets for socio-legal research through informal working papers, a special issue dedicated to socio-legal research to be published in one of the established mainstream New Zealand law journals, and in time the launching of a new regional socio-legal journal covering Australasia; and

7. Investment by New Zealand’s universities in bolder, more ambitious research projects and paradigms not immediately concerned with law reform or directed by the concerns of the policy audience but rather targeted at producing research more speculative and theoretical in nature located within the sociology of law that begins by examining “the social processes in which

²⁴ Short courses in social science research methods offered through the New Zealand Social Statistics Network (www.nzssn.org.nz) are open to legal researchers but, as yet, none have registered.

legality is embedded and in which legality operates.”²⁵

Other disciplines – I suspect many if not all represented here this evening – can help measure and monitor accurately the impact of real change, the kind that delivers lasting benefits. But we need also to seek guiding normative principles that clarify where justice could, or should, reside in the future. The platform on which we stand must support our role as ‘critic and conscience’ of society, and be broad enough to include a range of methods that help us to both anticipate and follow future legal development. If socio-legal studies can successfully migrate to these shaky isles, and become better established, it seems safe to predict that more kiwi lawyers will become ornithologists, a development all should welcome and encourage.

25. A Sarat and S Silbey “The Pull of the Policy Audience” (1988) 10 Law & Policy 97 at 142.