Pragmatism, Principle, and Power in Common Law Constitutional Systems

Bruce Harris has left an indelible mark on public law across the common law world. In this Festschrift, commentators explore key themes including the nature of executive power, issues concerning the judiciary, and the future of unwritten constitutions. This collection of essays conveys a distinctively pragmatic approach to public law, relevant to scholars and practitioners alike.
Author(s):
Sam Bookman, Edward Willis, Hanna Wilberg, Max Harris
book | published | 1st edition
March 2022 | xxxii + 326 pp.

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ISBN 9781839701986


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Professor Bruce Harris has left an indelible mark on public law in New Zealand and across the common law world. In particular, his suggestion that there exists a ‘third source’ of executive action, in addition to statutory and prerogative powers, has influenced scholarship and judicial decisions in New Zealand, the United Kingdom, and elsewhere.

In this Festschrift, leading commentators explore key themes from his work. The first theme is the nature of executive power. Claire Charters argues that the future New Zealand constitution must pay greater attention to Māori legal concepts and substantive protections for tangata whenua. She suggests that a pressing concern is holding the Executive to account and restraining its power, particularly vis-à-vis Māori. Edward Willis examines the legitimate extent of ‘third source’ powers in the context of constitutional pragmatism.

Three sections discuss issues concerning the judiciary. In the first section, Nicola Wheen discusses the problems inherent in ambiguous standards of environmental protection. The second section deals with judicial method and creativity. John Ip argues that the remedy of declarations of inconsistency with enumerated rights amounts to justifiable judicial creativity; Taylor Burgess critiques courts’ unwillingness to lead social change, while Paul Rishworth examines the creativity inherent in judicial restraint. Caroline Foster extends the volume’s analysis to international law, arguing that creativity by international courts and tribunals has given rise to global regulatory standards. The third section addresses judicial appointment and accountability. Sir Edmund Thomas argues that more independence is required in judicial appointments’ processes, while ATH Smith argues that more protections are needed to protect judicial independence.

The final theme concerns the future of the unwritten constitution. John Dawson explores the place of Te Tiriti o Waitangi (the Treaty of Waitangi), the founding agreement between the Crown and Māori, in New Zealand’s constitutional arrangements. Paul Craig explores the difference in the modalities of constitutional change between written and unwritten constitutions. Finally, Sam Bookman discusses the role of constitutional scholars in the unwritten constitution.

As courts and legislatures around the world grapple with the changing demands made of public law, this volume addresses important questions about the powers of the state, the role of judges, and Crown-Indigenous relations. This book engages with these questions through a distinctive approach that is both pragmatic and nuanced. This volume is indispensable for students, scholars and practitioners engaged in the study of common law constitutions in New Zealand and beyond.
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SAM BOOKMAN is a SJD (doctoral) candidate at Harvard Law School. He completed an LLB (Hons) at the University of Auckland, and his LLM studies at Harvard Law School, where he was the recipient of the Kaufman Public Service Venture Fellowship. His work has been published in the New Zealand Law Review, the New Zealand Law Journal and New Zealand Universities Law Review. Sam worked as a judge’s clerk for the Chief District Court Judge of New Zealand and is Staff Attorney at the Cyrus R. Vance Center for International Justice.

EDWARD WILLIS specialises in public law, with particular interests in constitutional theory, administrative decision-making, regulation and competition (antitrust) law. His current research interests include theorising unwritten constitutions, the role of public law values in shaping private law and private ordering, and regulatory design and implementation. He practised as a barrister and solicitor for over 10 years and is currently a Lecturer at the University of Auckland Faculty of Law. He is co-editor of the New Zealand Law Review and book review editor for the Public Law Review. In 2012 he was awarded the Rex Mason Prize for his article “On Regulatory Uncertainty”.

HANNA WILBERG is an Associate Professor at the University of Auckland. Her main research areas are administrative law and the tort liability of public authorities. Her publications include Wilberg and Elliott (eds) The Scope and Intensity of Substantive Review (Hart, 2015). She has twice won the NZ Legal Research Foundation’s annual best article award, most recently for a chapter entitled “Interpretive Presumptions Assessed against Legislators’ Understanding” in Elliott, Varuhas and Wilson-Stark (eds), The Unity of Public Law? (Hart, 2018) 193.

MAX HARRIS’s DPhil (PhD), completed at the University of Oxford as an Examination Fellow, was on the prerogative and third source, including the work of Bruce Harris. He holds a BA/LLB(Hons.) from the University of Auckland, and BCL and MPP degrees from the University of Oxford, where he was a Rhodes Scholar. He is co-editor (with Simon Mount QC) of The Promise of Law: Essays Marking the Retirement of Dame Sian Elias as Chief Justice (LexisNexis, 2019); is the author of a book on New Zealand politics, The New Zealand Project (Bridget Williams Books, 2017); and has published work in the Journal of Contract Law, the European Human Rights Law Review, the New Zealand Universities Law Review, and elsewhere. He has also worked as a campaigner and political advisor.

Table of Contents

Table of contents and preliminary pages (p. 0)

Introduction (p. 1)

PART I. THE NATURE OF EXECUTIVE POWER

A Maori Perspective on Constitutional Issues, Especially Executive Power (p. 13)

Constitutional Pragmatism and ‘Third Source’ Executive Authority (p. 29)

PART II. ISSUES CONCERNING THE JUDICIARY

Sustainability, Indeterminacy and the Abdication of Environmental Responsibility (p. 59)

A Tale of Two Taylors (p. 81)

Judicial Innovation and the Family (p. 109)

Judicial Activism and Restraint, New Zealand Style: Three Case Studies in Controversy (p. 135)

The Development of Global Regulatory Standards by International Courts and Tribunals: Whaling, Tobacco and Renewable Energy (p. 169)

BV Harris’s Promotion of a Judicial Commission for New Zealand (p. 203)

The Constitutional Status of the Senior Judiciary and the Courts in New Zealand: A Sketch (p. 217)

PART III. THE NATURE OF UNWRITTEN CONSTITUTIONS AND THEIR FUTURE

Dworkin and the Treaty of Waitangi as a Legal Principle (p. 247)

Written and Unwritten Constitutions: The Modality of Change (p. 263)

Constitutional Scholars and the Unwritten Constitution: Interpreters, Reformers, Communicators (p. 289)

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