Characteristics of New Zealand Law
New Zealand law is a remarkable mixture of radicalism and conservatism. The key to this is the pragmatic temper of lawmakers and the community generally. As a rule, actual injustices are remedied and real needs supplied without fear that traditional doctrines or institutions will be damaged in the process. Where the spur of human needs is absent, change is strongly resisted. Thus State life insurance and State trusteeship were introduced in 1869 and 1872 respectively, during the heyday of laissez faire. The Victorian attitude towards marriage did not prevent legislation in 1877 enabling the children of de facto marriages to share in their father's estate. On the other hand, the anomalous distinctions between libel and slander remained until 1954, the grand jury lingered until 1962, and mothers still have no share in the guardianship of their children while the parents are living together. Similarly, long-standing and ample protection for women as wives and mothers is coupled with conservatism towards women in public affairs, for example, as jurors.
One frequently stated aim has been to keep New Zealand law
in line with English law. This has undoubtedly – and
understandably – had a strong influence. It is misleading,
however, to look merely at what legislators have said,
perhaps as conventional rhetoric, and to ignore what they
have done. Even when the “mother-complex” was strongest
during the twenties and thirties, some legislation was
imported from other places or had a purely local content.
Where the social element is pronounced, there has been less
hesitation in going our own way. In more strictly legal
fields, however, the tradition of following English law,
together with a certain natural apathy to innovate, has
prevented or delayed many useful changes. Admitting the
advantages of Commonwealth uniformity in this matter, it can
nevertheless be suggested that we have been over-ready to
copy or retain the details of English law. Recently there
have been signs of a more balanced approach, and New Zealand
law may be moving towards a fulfilment of Allen Curnow's
“… some child, born in a marvellous year,
Will learn the trick of standing upright here”.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.