Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand

68 Pages Posted: 22 Feb 2011

See all articles by David Erdos

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: February 17, 2009

Abstract

This paper argues that the cultural self-understandings of the judiciary can exert a profound effect on legal outcomes under a Bill of Rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British-descended judicial culture that prioritizes, firstly, those civil liberty values already cognizable by the common law and, secondly, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on both their politicolegal resource set and the attitude of the political branches (legislature and executive) to the claim being forwarded.

Keywords: Judicial Culture, Support Structure, Original Intent, Bill of Rights, Civil Liberties, Freedom of Expression, Social Equality

Suggested Citation

Erdos, David, Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand (February 17, 2009). Law of Social Inquiry, Vol. 34, No. 1, 2009; Oxford Legal Studies Research Paper . Available at SSRN: https://ssrn.com/abstract=1766027

David Erdos (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-o-erdos/5972

Trinity Hall ( email )

University of Cambridge
Trinity Lane
Cambridge, CB2 1TJ
United Kingdom

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