Glimpses of a New Theory of s 23(5): Mapping Orthodox and Emerging Lines of Jurisprudence

Abstract

This article identifies and maps two streams of jurisprudence on s 23(5) of the New Zealand Bill of Rights Act 1990. Under this right, persons deprived of liberty must be treated with humanity and respect for their inherent dignity. The author distils the orthodox formulation of the right from the dominant arc of New Zealand law and evaluates how the structure of the right excludes broader notions of dignity. He suggests that this approach suffers from normative and legal deficiencies and ought to be reconsidered. The article then proceeds to map glimpses of a new and more promising theory of s 23(5) which can be found within a subsidiary strand of jurisprudence. Obiter remarks and judicial hints provide a window onto a more expansive way of thinking about the s 23(5) right. The author offers some tentative suggestions on the nature of the interests underlying this approach and concludes with some brief observations going forward.

Keywords: dignity, "human rights", "persons deprived of liberty"

JEL Classification: K00