Another Way of Skinning the Rabbit
6 Pages Posted: 28 Feb 2013 Last revised: 22 Feb 2015
Date Written: 1991
This paper was initially presented as a speech reviewing another paper, authored by Professor Soifer, which examined the Anglo American legal tradition in relation to minorities. The author is not convinced that such a tradition exists now. There is a tradition of English law and a tradition of American law; they are related in some respects, but in one of the features with which this paper is most vitally concerned they are fundamentally different. English law knows nothing of judicial review of acts of Parliament. There is no constitutional possibility in English law to have a statute declared unconstitutional. Such an absence of judicial review makes a very big difference. The English tradition depends for the protection of minorities very much more upon legislation which is passed by Parliament. Nevertheless, a powerful tradition of courts protecting minorities exists in the English common law. The tradition persists despite the fact that courts do not have judicial review power in the sense that courts enjoy that power in the United States. The record of protecting minorities in the English common law tradition is a solid achievement of the common law which deserves more credit than is given by the previous article.
The paper considers the Case of James Sommersett, a Negro, on a Habeas Corpus, decided in 1772 regarding slavery in England at that time. The decision of the Court of Kings Bench marks out what is still a very strong tradition in English law, that the court’s role is to protect minorities and to ensure that justice is done to them, whatever the political and economic effects. It then turns to New Zealand to consider the treatment of Maori by New Zealand courts, particularly with regard to New Zealand Maori Council v Attorney-General. In discussing both cases, the author argues that perhaps Professor Soifer, in suggesting that the common law tradition in the Commonwealth is unable to deal effectively with the problems of minorities, has been too sweeping with his criticism.
The absence of judicial review has also meant that the political organs of government are forced to respond to the problems of minorities. They are held to account. Because they are forced to respond, they pass statutes in a general way which the courts interpret in a specific way. It is easier to decide upon progressive policies for minorities so long as it is in terms of general principles. The power of statutory interpretation in the common law tradition is a strong and powerful instrument in the hands of a determined court.
Keywords: minority protection, minorities, common law, New Zealand
JEL Classification: K19, K39
Suggested Citation: Suggested Citation