• The Rule of Law

    Over the course of what is becoming, I am glad to say, a fairly long life, I have tried my hand at a range of different things. I have been a diplomat, a politician, an Oxford don, a television journalist, an economist, an author, a columnist and Waikato University Vice-Chancellor.

    But if I were asked to identify the central element in my career, I would answer that I have been a lawyer – and I choose that characterisation for a variety of reasons.

    It is partly that the law was my area of study when I first went to university – first, at Victoria University and then at Auckland – and the learnings I acquired then have stayed with me through the rest of my life. I have carried with me the intellectual training and mental habits inculcated by the study of the law – “once a lawyer, always a lawyer” one might say.

    It is not just that legal studies equip one for a variety of different careers, as indeed they do. It is rather that the law is such a constant and beneficial part of our national life, and one whose importance is so often overlooked, that it is a duty and a privilege to claim adherence to it.

    The law is by far the most significant and successful attempt we have made to regulate our social behaviour in the general interest. It is, as a consequence, the glue that holds us together as a society and that enables us to act together effectively.

    The experience of many people with the law may have been, as they saw it, of falling foul of irritating rules, seemingly made to be broken, or of paying apparently exorbitant bills to have the sale and purchase of property validated. But these perceptions understate and mistake the true value and purpose of the law.

    The law operates on the social level to outlaw disruptive and therefore unacceptable behaviour, so as to restrain violence, dishonesty, untrustworthiness and deception. And, it provides some ground rules so that we can conduct certain kinds of relations on a secure basis of honesty, trust and reliability. These purposes combine to provide valuable building blocks for a properly functioning society.

    But its value goes beyond those elements. The most important function of the law is, in many ways, to place limits on the exercise of what would otherwise be unbridled power – what is usually called the application of “the rule of law” – the principle that no man or body, however powerful, is above the law. It is that principle that was used to defeat the claim in England centuries ago that kings had a “divine right” to govern and were therefore above the law. And it is that principle that is currently being challenged in the US by Donald Trump.

    The law exists essentially to protect the rights and liberties of ordinary citizens. It is the bedrock on which our democracy is built.

    My own special interest as a law student and teacher was in a body of law called administrative or public law or the law of judicial review – the law that restrains the actions and powers of public bodies and government agencies and provides remedies to the ordinary citizen if the limits to that power are exceeded. It is a body of law to whose development I can claim to have made a small but significant contribution, through proposing a comprehensive and coherent definition of the concept of jurisdiction and replacing the complexities of the ancient remedies of certiorari and mandamus with an all-purpose modern remedy called a declaratory judgment.

    The law, as a scholarly and professional focus, has played an important role, not only for me but for my family as well. My brother was a judge in Hong Kong, my daughter is a respected defence lawyer in Tauranga, and my grand-daughter has recently completed law degrees in both New Zealand and France.

    We can, as a family, claim to be “upholders of the law”. But the value of the law extends well beyond me or my family; it is there to benefit us all.

    As I wrote this, I had news that my old Oxford tutor, Don Harris – also a Kiwi – had died. This column is in part a tribute to him.

    Bryan Gould
    19 August 2020

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