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McElrea, Judge FWM (Fred) --- "Law and philosophy" [2015] OtaLawRw 3; (2015) 14 Otago LR 7

Last Updated: 26 May 2017



Law and Philosophy

Judge FWM (Fred) McElrea (retired)*

Having got over the shock of finding it is 50 years since I wrote something on “Law and Philosophy” for the first issue of this Review, and the pleasure of being asked to write another short piece, I re-read what I wrote 50 years ago and could not believe how verbose and complicated it was! The essence of my argument was that the study of law and of philosophy were closely linked – so much so that Philosophy 1 could replace English 1 as the compulsory subject for the LLB. It should have been simple to state, but I made a meal of it!

But what were those links between law and philosophy that I identified? First, in both pursuits there is an insistence on clarity and precision in the use of words – something that in turn requires a clarity of thinking. Secondly, both law and modern philosophy are mostly concerned with analysis – of principles and concepts, I might now say. A third point of contact between the two disciplines is logic, which seeks to formulate and examine the form (as opposed to the content) of thought. Since any use of argument involves the use of logic, good or bad, I argued then – and still contend – that it is unhelpful to say that law follows experience, not logic, as though the two were mutually exclusive. Lastly, I referred to ethics (always a strong strand in philosophy) as of considerable importance to the lawyer. Questions of human values cannot be avoided, and arise in all sorts of ways in practice, whether in the courts or in legal offices.

Taken together, these strands involved an important training of the mind in a way of approaching and dealing with problems. In addition, I felt, Philosophy could also provide the two main benefits to be gained from studying English – an ability to understand and write decent English, and an acquaintance with some of the great minds of the past and present. End of argument, I thought!

Well, of course, since those days English has ceased to be compulsory, just as Latin had in the 1950s, and instead of having to pass three papers from an Arts degree, students must obtain 108 points from any degree – which is another way of ensuring that law students have a well-rounded education.

I was lucky with the university teachers I had at Otago. Professor

Frank Guest was Dean of the Law School, and the first full-time Dean

* Fred McElrea is a retired District Court Judge, probably best known here and overseas for his work in Restorative Justice. After obtaining degrees in law and philosophy at the University of Otago he had two years’postgraduate study in England before returning to legal practice in New Zealand. After 19 years in the litigation department of a large Auckland firm, Fred was appointed to the bench at the Auckland District Court where he had a long and varied career, retiring in 2013 after 20 years full-time work and five years part-time work. He now grazes a few sheep on the outskirts of Wanaka.


to boot. He had a background in both law and philosophy, and so encouraged my similarly divided loyalties. In philosophy, Professor Dan Taylor – an Australian with an Oxford education – was revitalising the Philosophy Department and was a great mentor and teacher to his (rather small) senior classes. (So, incidentally, was the very Scottish Rev Henry Thornton.)

Although that first issue of the Review was done as a one-off exercise, there must have been an issue the next year (my last at the University of Otago) because I wrote something for it on the debate between Professor HLA Hart, an Oxford philosopher, and Lord Devlin, a senior English Judge – ‘the Hart/Devlin debate”– about the nature of moral obligations and the foundation of law. I doubt that that article enlightened anybody, because I thought they were both right and tried to show that.

As it happened, the study of law and philosophy together has served me well over the years. I graduated from Otago with an MA, LLB and was lucky enough to get a scholarship for two years’ postgraduate study in the UK. Keen to see something of both London and one of the great old universities, I chose two one-year courses, completing an LLM at London University in 1968 and a Postgraduate Diploma in Criminology (now an MJur I believe) at the University of Cambridge in 1969. Looking back, I was building an interest in the philosophy of law. I will mention just one paper that I studied in those two years, and it was the LLM course in Principles of Civil Procedure, taught by the late Sir Jack Jacob – then senior Queen’s Bench Master and principle author of “the White Book”, the English litigator ’s bible. What a brilliant teacher he was!! As well as having a total mastery of the rules of procedure he was able to stand back and look at the underlying principles and concepts. (Since then this approach to Civil Procedure has become much more common in many universities.)

Before leaving New Zealand in 1967 I was admitted as a Barrister and Solicitor, with my father as counsel moving my admission and Trevor Henry J presiding in the (then) Supreme Court at its sitting in the magnificent old court building in Lower Stuart Street. Before then I had been a mere “law clerk”, working part time for the last two years of my LLB and attending lectures usually at 5pm in a library room of the Otago District Law Society, across from the Dunedin Railway Station. Now I was a law practitioner. Indeed, I made my first court appearances in the Magistrate’s Court, at the other end of the same courthouse from where the Supreme Court sat, and 46 years later my last duty as a DCJ was to preside over District Court cases in the same courtroom! How important a courthouse like that is to a city like Dunedin.

Upon returning to New Zealand in late 1969 I obtained work in the litigation department of a large Auckland law firm, and soon was teaching part-time in – guess what? – Civil Procedure, at the Auckland Law Faculty. Master Jacob’s more principled approach was of course my model. A few years later I took a similar approach to Criminal Procedure, and later still started writing for Butterworths as an author


of District Courts Practice (Civil), something I enjoyed doing for seven or eight years.

Legal practice in big law firms tended to take you away from the practice of criminal law, with which most young lawyers “cut their teeth”. Even within the civil side of disputes, the pressures of practice are towards narrower and narrower specialisation. While this may be good for the image of the law firm, and good for business, I found it difficult to align with the idea of law as a profession, especially one that dealt with the whole gamut of life’s problems.

However, an invitation to become a District Court Judge, which I took up in 1988, took me right back into the world of general practice. I found myself using skills and knowledge that I had learned at Otago, and on an every-day basis. How grateful I was that I had been taught well! For my first few years as a DCJ I revelled in this return to a wide basis of legal work. Of course, as a Judge I was problem-solving rather than advising, but I found myself in that work, just as I had in legal practice, always searching for the underlying principles in the cases or statutes, and then analysing the facts in the light of those principles.

So those skills I had learned through the study of both philosophy and law – and, however ineptly, had been writing about in 1965 – were being used all the time. Indeed, they had become an integral part of me, which I also used over the years in voluntary work outside of the law. Otago University had a lot to answer for!

My interest in the philosophy of law was also critical in my developing an interest in restorative justice. I do not think that term was being used when our present model of Youth Justice was developed, but as soon as I became a Youth Court Judge (in 1990) I could see that we had here a completely different model of justice to the traditional, adversarial, model that most western lawyers grow up with. I wrote about that for the Legal Research Foundation, attached to Auckland University’s Law Faculty, and the next year returned to the Institute of Criminology at Cambridge University as a visiting scholar, during part of my sabbatical leave, where I immersed myself in the topic of restorative justice. On returning to New Zealand I started arguing for the application of restorative justice procedures to adults in the criminal courts, and to young people in schools. Successive Chief District Court Judges were very supportive of this work and helped promote it, eg with the Ministry of Justice.

To find a sitting Judge with an interest in law reform and a background training in critical analysis, must have been fairly unusual, as I found myself invited to speak on 20 or more occasions, in more than a dozen countries, on the subject of restorative justice and the criminal law. I wrote the various papers in my own time, but the travel costs were nearly always met by the inviting body. In the process I became part of an international movement for law reform that has been hugely influential. I say this not to “blow my own trumpet” but to illustrate how valuable a sound grounding in the law (and, in my case, in philosophy) can be,


not just to the individual lawyer and those with whom he or she deals, but to the body politic, both here and overseas.

I should perhaps explain that all Youth Court Judges were drawn from the ranks of DCJs, and so were part-time appointments. After 12 years I dropped that side of court work and instead, for the next 12 years, did Environment Court work – initially on prosecution cases only, which were about one-third of my work, but later including resource consent and other appeals under the Resource Management Act 1991. It would be stretching things to say that this grew out of my interest in law and philosophy, but what I particularly liked about Environment Court work was the ability to sit with Commissioners, drawn from other walks of life than law and so bringing a multi-disciplinary aspect to the work, which had strong echoes of restorative justice.

I will never know how I came to be approached to chair the Representation Commission, a statutory body that redraws electoral boundaries before each election – but I did one five-year term in that role, and it was a fascinating experience. Total commitment to the principles of the legislation, and complete oblivion to political considerations, were critical. I remember at one point the politicians were keen to see the material the Commission started with, which was a set of proposals drawn up by the Surveyor-General. The legislation did not provide for political comment or input until a later stage, and we were not going to make those proposals public. But before we could beat off media and political pressure to the contrary I had to give an interview on Radio New Zealand making it clear that our duty was to the public of New Zealand and not to politicians, and we were going to follow the statutory process with complete integrity. That brought an end to the pressure

– and a nice little note from the Clerk of the House of Representatives – and we were able to get on with the job Parliament had given us to do. However, it made me realise that integrity and intellectual honesty are not unconnected.

I had hoped to find, but cannot, some record of the seminar on legal reasoning run a few years ago by the institute of Judicial Training. I recall the seminar leader, an American academic with a passion for the use of “logic”, by which he meant things like syllogisms, and “the fallacy of the undistributed middle”. Of course for me this was like going back 40 years and indulging a favourite past-time, so I made a point of writing a few judgments over the following months that explicitly exposed such fallacies and other logical absurdities in counsel’s arguments on one side or the other. It was a little naughty, I suppose, to be inflicting such heavy stuff on the parties, but it was great fun to be using some of my old training in logic from Bob Durant – 40 years later!

So there you are. My allotted time and space are up, and I am lucky enough to still be writing a few words for an impressive law review – from Wanaka, in the beautiful back country of Otago.


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