BERRY ZONDAG

“THE STATE’S ROLE IN PROVIDING COURTS TO ADJUDICATE CIVIL DISPUTES:
A JURISPRUDENTIAL PERSPECTIVE.

AUGUST 2006

TABLE OF CONTENTS
I II Introduction ............................................................................................................................... 3 The social function of the courts ............................................................................................... 5 A. The courts’ social function according to “the Nature of the Common Law” ................ 5 B. The courts’ social function according to ”the Rule of Law” .......................................... 6 C. The courts’ social function according to a functional approach ..................................... 7 D. Evaluation of the courts’ performance in providing the social function. ..................... 11 E. The public utility of civil litigation .............................................................................. 13 1 Litigation uses an adjudicative process, supported by state authority. ......................... 14 2 Litigation is an adversarial process .............................................................................. 15 3 Litigation has a wider impact than the issues at hand .................................................. 16 4 Litigation is public, and recorded ................................................................................. 18 5 Litigation includes a structured appeal system............................................................. 18 6 Litigation is a professional legal process ..................................................................... 19 F. The constitutional function of the courts ...................................................................... 20 III Alternatives to civil litigation .............................................................................................. 22 A. Contemporary alternatives. .......................................................................................... 22 1 Alternatives within the government structure .............................................................. 22 (a) Executive decision making ...................................................................................... 23 (b) Government “support” in lieu of civil litigation ...................................................... 24 (c) State sponsored mediation services ......................................................................... 24 (d) Specialised tribunals ................................................................................................ 25 (e) Specialised private adjudication services created by legislation ............................. 25 (f) General (disputes) tribunals..................................................................................... 25 2 Alternatives outside the government structure ............................................................. 26 B. Historical alternatives................................................................................................... 27 C. Differences between common and civil law systems ................................................... 29 D. The constitutional function of alternatives to litigation................................................ 30 IV Contemporary developments in civil litigation ................................................................... 32 A. A comparison with some other jurisdictions ................................................................ 32 B. Conclusion ................................................................................................................... 34 V A conceptual framework for the role of the state in civil litigation ........................................ 35 A. Adjudication ................................................................................................................. 35 B. “Courts” and the concept of authority .......................................................................... 36 1 The relation between authority and adjudication ......................................................... 36 2 Two types of structure of authority .............................................................................. 38 C. The role of the state ...................................................................................................... 38 1 The reactive state ......................................................................................................... 39 2 The activist state........................................................................................................... 40 3 Mixed forms of state intervention ................................................................................ 41 VI The courts and political objectives ...................................................................................... 43 VII Conclusion; courts and their proper social function in New Zealand.................................. 44 VIII Bibliography ........................................................................................................................ 47

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I

INTRODUCTION

We are accustomed to the way civil courts operate and we take for granted that they are a necessary state institution. The costs of providing civil adjudication services are much higher than what is charged to the litigants. Government must prioritise its spending, and increasingly operates on a “user pays” basis in many of its tasks. We know that alternatives to civil litigation are available; why would the state provide “sponsored” civil dispute resolution? This paper argues that this economical approach misses fundamental questions about the role of the state in civil adjudication. It uses a jurisprudential view, in which the administration of the law through the civil courts is placed in a societal, historical, and constitutional context. The term “political jurisprudential” is perhaps more to the point,1 as the issue proves to have a strong political connotation. This paper seeks to introduce a conceptual framework to analyse the state’s role in civil dispute resolution, and describes the situation in New Zealand in that context. This study starts with the social function of the courts, and the ways in which this may be evaluated. Next, alternatives to court adjudication, and contemporary developments, domestically and internationally, are discussed. Finally, the conceptual framework is summarised and conclusions drawn. This paper develops the argument that the operation of the court system as part of the “judicial infrastructure” is a major instrument in achieving political objectives. The use of that instrument includes the way the court system is organised, but more importantly, it also operates by lowering access to the courts and developing alternatives, thereby restricting the courts’ social relevance and constitutional scope. As a result, the current social function of the courts in New Zealand is that of a societal ‘safety valve’ that operates on the basis of a fiction. The courts constitutional role is underdeveloped, and is being restricted rather than increased.

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See Martin Shapiro, Political Jurisprudence, Kentucky Law Journal, 52 (1964) 294, reprinted in : Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) at 19 Shapiro “introduces” this political jurisprudential movement as “concentrating on the specifically political aspects of law’s interaction with society and de-

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This paper suggests that the constitutional and political function of the courts is much better understood by those with political power than by those subject to political power, and that this discrepancy underlies the philosophy that in a democratic society the judicial function must be independent and separated from other branches of government, and shielded from the “tyranny of majority rule.2 The opinion is advanced that the New Zealand government is developing an undesirable attitude towards the function of the courts in civil litigation, and that an emphasis on improving the courts’ process, and widening its reach would be preferable to the current policy of developing alternatives, and effectively restricting access to the courts.

scribing the concrete impact of legal arrangements on the distribution of power and rewards among the various elements in a given society.” 2 “…the crowning proof of democracy in our times is the growing acceptance and enforcement of the idea that democracy is not the same thing as majority rule…democracy must protect itself from the tyranny of the majority” Ran Hirschl Towards Juristocracy, The Origins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge, London, 2004) 2. (Paraphrasing Ronald Dworkin in A Bill of Rights for Britain (Chatto and Windus, London, 1990))

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II

THE SOCIAL FUNCTION OF THE COURTS

This chapter discusses three approaches to the courts’ social function. The way this function may be evaluated is considered, and the public utility of the courts is described, using characteristics of the civil court process. This approach avoids the more fundamental questions relating to the existence and character of a legal system as such; i.e. issues at a higher level of abstraction.3 Courts are part of a “legal approach” to social control, a term itself described as “every way through which human society exercises a modifying influence upon itself of part of itself”.4 What follows must be seen in the legal (and therefore narrow) context of this definition, which in its broader meaning of course includes social control mechanisms that are vastly different from legal structures.5

A. The courts’ social function according to “the Nature of the Common Law”
Eisenberg6 proposes two paramount social functions for courts: the resolution of disputes, and the enrichment of the supply of legal rules. In his approach these functions are exercised in an environment where doctrinal propositions (i.e. law) are kept coherent with social propositions (i.e. morals, policies and customs). Eisenberg describes the task of courts in a pure and conceptual common law system. There law develops through the courts, by judicial decision making in specific fact situations that gains application to comparable situations. A fundamental assumption, necessary for this system to operate, is that ‘law’ is omnipresent, i.e. it can be found either from general principles, from customs, or from ar3

An example of a set of questions by which existence and character of a legal system can be analysed is found in Joseph Raz The concept of a legal system : an introduction to the theory of legal system (2d, Clarendon Press, Oxford, 1980) , who identifies questions as to existence, identity, structure and content, and who uses that analysis to compare the theories of Austin Hart and Kelsen. In the current context, we would only be interested in the question relating to “existence”, and only in a fraction of it, the practical operation of the civil adjudication system. 4 Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966) 743. 5 Examples are propaganda, consumerism, religion, caste systems, feudalism etc. 6 Melvin Aron Eisenberg The nature of the common law (Harvard University Press, Cambridge, Mass., 1988)

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rangements between individuals. The role of a court is considering the evidence, arguments, and propositions of law as advanced by the parties, and determining the case on that basis. The proceeding are “individualistic”; they take place within the boundaries set by the parties, and they are initiated by them. The development of law therefore requires a reporting system,7 and places an onus on the courts to maintain the structural integrity of the law, both in time, and systematically. In this pure form, the common law system has inherent problems with laws that are promulgated elsewhere (as in parliament) and that seek to regulate and manage society,8 rather than to describe or structure what is already present, but non-formulated. Pure common law is conservative, slow to adjust, and focused on dispute resolution, not on the “by-product” of rule making. It is reactive; it “finds” law after the fact, and new rules develop retrospectively. It is most suitable for a “laissez faire” government style, where the state defines its task in terms of providing supportive structures to maximise the efficiency of individual pursuit of private objectives. The “nature of the common law” approach is instrumental and pragmatic, but does not comprehensively describe a social function, as it fails to recognise how the social control element in fact operates.

B. The courts’ social function according to ”the Rule of Law”
It may be argued that, as citizens, we are not really interested in the supply or enrichment of rules, or the resolution of dispute “coute que coute”,9 but in the exercise of ‘justice’, the proper upholding of rights between members of society.10 We are also interested in the maintenance of a proper balance between our individual rights and the restrictions placed upon us by the governing structures we accept as necessary. We are interested in a reasonably organised and regulated society, and our interest in the courts focuses on the courts’ role as part of the

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This is not necessarily a government task at all, as the development of law report series shows. Over-legislation of social practices will exacerbate the loss of coherence and unity in the legal system, as argued by Santos et al (1996), as referred to in Héctor Fix Fierro Courts, justice, and efficiency : a socio-legal study of economic rationality in adjudication (Hart, Oxford, 2003) 15. 9 In which case we could simply use the throw of dice, or the opinion of a lunatic.

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governmental system that supports and/or regulates our individual and communal pursuits.11 The following description, which uses the rule of law as a starting point, comes therefore closer to describing a social, rather than an instrumental, objective:12
The degree of confidence people have in the court system will influence their belief in the rule of law. If people cease to see courts as relevant, effective and accessible, they are less likely to believe that the rule of law means everyone is entitled to the benefit and protection of the law, including them and people like them. They are less likely to believe that courts will fairly and impartially resolve disputes between citizens and the state. This approach is unfortunately somewhat circular; it proposes that the social objective is the rule of law, and assumes that the belief in the rule of law depends on the functioning of the courts. It describes the function of the courts as upholding the rule of law, without analyzing how a rule of law performs its social function. This description recognizes, however, that matters are not as clear cut as Eisenberg presents them. It talks about “influence of belief” and “likely to believe”. The social function of the courts is obviously not just about what courts actually do, but about what people think they do, or what principles they think will be upheld by the courts. A “rule of law” approach recognizes that the social function is about belief in principles, but it does not explain how these operate.

C. The courts’ social function according to a functional approach
The instrumental and principled approaches described above can be combined into a functional model. A complex society requires an institution that is able to conclusively decide disputes, using the principles and rules by which the society is organised.13
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This avoids the use of primitive means of conflict resolution,

Although it is admitted that the words “just” and “rights” have an entirely subjective meaning, which changes considerably with context. For a concise discussion of this aspect see Roscoe Pound Social control through law (Yale University Press, New Haven, 1942) 85-99. 11 In other words the concept of a “Rechtstaat”, to paraphrase Bracton, “it is not the state that makes the law, but the law that makes the state”. 12 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and Tribunals, NZLC Report 85 (2004) 3. 13 Following Simmel’s logic that complex societies are build of dyadic relationships. Dispute resolution by way of a third party introduces triadic dispute resolution, whereby the third party has a role that may be represented on a scale from meditative to judicial, depending on the process used and the authority position of the third party. Triadic dispute resolution provides a societal model in which the “myth” of neutrality and independence of the third party

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which are considered to have an adverse effect on public welfare. Impliedly, this institution also functions to avoid abuse of by itself legal powers, such as immoral legislation, or ultra-vires or arbitrary use of administrative power. By upholding the “rule of law” between individuals and between individuals and the state, the courts act as a “backstop” against arbitrary use of power in whatever form.14 The social function is to provide the belief that conflict can ultimately be resolved by way of a known and regulated “just” process in which parties operate on an even footing. As long as the belief prevails that this institution exists and is accessible, that it has the authority to perform its function, and that ultimately there is a “just” law for every problem, there is no need to revert to other than regulated means of protecting self-interest. Even a plural society, with fundamental differences on substantive issues, can be maintained if there is agreement on rules of dispute resolution and authority of decisions. Restrictions on individual advancement are thus accepted, and courts will only be called upon where a “frustration threshold” is exceeded. The court process itself creates another, and higher, threshold.15 As a result, substantial abuse of power or conflict must be present before the court system is used, and once engaged it effectively removes the conflict from society at large.16 If the court system would fail to provide this function adequately, substantial abuse of power in a large number of cases, or a very principled and highly divisive issue, would have to occur before a significant part of society would refuse to accept the validity of the system as a whole.17 The word “backstop” is therefore in a sense misleading. The social function can be performed without actually resolving any significant number of conflicts; the word “safety valve” would be more appropriate.

must be maintained. See Georg Simmel The Sociology of Georg Simmel (Free Press, New York, 1950) And Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 165, for the argument about “Judicial Myth” and at pg 211 for the social logic of triadic dispute resolution. 14 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and Tribunals, NZLC Report 85 (2004) 3. 15 And often a whole series of increasingly higher thresholds when appeal processes are taken into consideration. 16 Hence the often heard remark “the matter is currently before the court”. 17 Hence the conclusion that many revolutions or civil wars have very principled court cases as a prelude. Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press, Durham, 1999) 512 provides as examples: The “Five Knights Case (1627) as the immediate precursor to the English Civil War, and the Dred Scott Case (60 US 19 How. 393 (1857)) in that role for the American Civil War.

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In a common law system the decisions of the courts have a wider impact than the resolution of specific disputes, and are an important means by which the law is maintained and expanded. The very rules that the courts apply are shaped and moulded in its process. This is the way the system (at least in theory) resolves the inherent problem that results from the use of ‘positive’ rules (rather than principles) to organise and regulate behaviour in an ever changing society. Law must be stable and yet it cannot stand still, and when considering the system as a whole, when seeking underlying principles, those of change as well as those of stability must be ascertained.18 Court decisions are used to learn about the law, its application and development. In that sense, the law forms an abstract description (a “mirror image”) of society, showing its structural organisation of rights and responsibilities.19 In that same sense, the courts are an abstraction of society, in which conflicts are played out in the stylised environment of legal proceedings. The social function of the courts thus rests upon the fictions that “law” and the “rule of law” can be abstracted from, but applied to, reality, and that courts are available to perform and enforce that application: “The fabric that holds civil society together is the common adherence to social institutions”.20 This does not mean that every conflict must be resolved by the courts or that every decision must comply with the highest standards that may be applied to it. It is understandable that a friction is present between practicalities and esoteric application of principles; but as long as justice is apparently “available and seen to be done”, the social function of the courts will operate as required.21 There is in other words, a tension between what the courts actually do and the perception that underlies their social function. In fact, courts may only undertake a minute fraction of what they theoretically can do, and still perform the social function. It is in this field of tension that political issues enter into the equation.

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Roscoe Pound Interpretations of legal history (Harvard University Press, Cambridge, 1923) 1. The metaphor of a mirror is apt in that context, and it is interesting to note that the earliest written German law text, “Der Sachsenspiegel”, written in the era of the early European treatises on law (late twelfth and early thirteenth centurty), uses that metaphor, the word literally meaning “The mirror of the Saxons”. 20 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and Tribunals, NZLC Report 85 (2004) 4. 21 Pound refers to this principle as “the habit of obedience”. See Roscoe Pound Social control through law (Yale University Press, New Haven, 1942) 53.

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The question is how large this difference can be before society refuses to accept the courts as a relevant institution within the legal system. Another aspect of that difference is the scope of the decisions the courts are prepared to make. It has been argued that, globally speaking, as part of their (more or less explicit) constitutional role, the courts show increasing willingness to involve in critical assessment of legislation, the operation of the administrative apparatus, and even in supra national considerations.22 It is suggested that this constitutional role is part of the courts’ social function, and that it involves an active preparedness to test the boundaries of executive and legislative action, and a willingness to determine cases that would traditionally have been considered outside of the courts’ practical reach.23 In other words, judicial activism is an implied requirement of our constitutional structure. We must ask how much difference can exist between the perceived constitutional function of the courts and their actual operational scope, before their relevance as an institution is lost. On the other side of the equation is the question to what extent litigation should overtake roles that were traditionally vested in other institutions, such as church, family, neighbourhood, sports- and social clubs, guilds etc.24 As may be seen, the question is not only that of the balance between the judiciary and the other branches of government, but includes consideration of other means of social control.25 While it is clear that our system is no longer a pure common law system, there must be a point where one cannot maintain that the system is a common law system at all, but has been transformed into something different. In other words, is
22

See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 149, who demonstrate this point in the context of constitutional review by analysing developments in the USA, France and Russia. The authors refer to an “agent” model, where the state performs governing powers in a Lockean contract with the citizens. In order to make that contract enforceable the agent role is split into three, with the different agents competing for power out of their “agent interest”. Pressure on the courts to extend their scope and function is therefore inherent in the model of governance. 23 Both Fuller and Eisenberg considered that some issues were not suitable for adjudicative determination. Fuller referred to these as “polycentric problems”, and Eisenberg as problems with “multiple criteria”. Lieberman has devised a matrix that shows how society has moved from the adjudication of monocentric to more complex issues. See James Robert Forcier Judicial excess : the political economy of the American legal system (University Press of America, Lanham, Md., 1994) 37-43. 24 See Ibid (chapter VII, “towards a new legal paradigm”). 25 Pound sees law as a framework in which other means of social control can function, but recognises (in 1942!) the increasing influence of formal institutions. Roscoe Pound Social control through law (Yale University Press, New Haven, 1942) 22-27.

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the fiction of the legal system upheld by way of ‘window-dressing’, while in reality an entirely different system of societal organisation operates? Obviously, the differences between the courts’ social function in theory and its practical application are caused by the executive and legislative roles of the state which directly or indirectly regulate what can be brought before the courts, how it is dealt with, and what the consequences and authority of court decisions are. As New Zealand has at best an ambiguous practical separation between executive and legislative functions,26 it is important to consider the constitutional role as part of an evaluation of the functioning of the courts.

D. Evaluation of the courts’ performance in providing the social function.
The yardstick to measure the courts’ success will depend on the definition of the social function. If that is the successful maintenance of a fiction, the test would be simple, but sceptical; is civil unrest prevented without using more repressive means of social control?27 At a less sceptical level, one could look at criteria such as constitutional position, quality of decision making, proportionality, principled appeal rights, accessibility, equality, respect for all, and efficiency, to name but a few.28 This paper argues that reliance on this type of criteria is unsatisfactory, and potentially misleading. By using the characteristics of the existing court system as a basis for the definition of evaluation criteria, alternatives to that system are not considered, nor is there any control for the variable whether the courts are actually used for their alleged “backstop” function. As an example, the criterion “constitutional position” may complied with in theory, but this is rendered meaningless if the courts make increasing use of “public policy arguments” or “floodgate arguments” to decide issues between individuals and state institutions,29 es-

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For some interesting examples in the field of “tertiary legislation” see Robin Pawsey "Tertiary Legislation" New Zealand Law Journal 214 27 Compare this with Raz’ comments on the “principle of efficacy”, i.e. the ratio of cases of obedience to the total number of opportunities to obey them, as a test of the existence of a legal system in a general sense. See Joseph Raz The concept of a legal system : an introduction to the theory of legal system (2d, Clarendon Press, Oxford, 1980) , chapter IX. 28 See New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and Tribunals, NZLC Report 85 (2004) 29 In other words the constitutional position as “third branch” is in jeopardy when courts act in a policy implementing, rather than in a conflict resolving capacity.

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pecially where these institutions are increasingly “dressed up” in corporate structures or as profit-oriented or equity-gathering enterprises.30 It seems that “accessibility” (which also includes transparency of the court system and information supply) is the most important criterion to evaluate a social function, as it considers a practical and operational relationship between courts and society, and is most capable of objective determination. The other criteria are of a secondary nature, as they follow by default from the concept of “rule of law” and the constitutional structure. They cannot be determined other than in terms of vague approximations. It is no coincidence that the titles of the reports into reform of civil justice invariably refer to the accessibility criterion.31 If courts would be perfectly “accessible” there would be a continuous stream of litigation, providing accurate and detailed information on the issues between citizens, and on exactly where and how the state plays a role in every aspect of society. It can be argued that this level of “accessibility” ought to be a cornerstone of a truly democratic society. However, and additionally, as taxpayers, we are concerned that money spent on our behalf is not wasted. Economic efficiency is also a criterion that has some capability of objective determination. An attempt to analyse the courts’ economic performance is obviously too wide for this paper and hampered by the problematic question with which alternatives the court system must be compared to make such an economic analysis useful, or even possible. Another problem is that the benefits of having an efficient courts system may not be immediately obvious.32 A further problem for economic analysis is the question with what other government expenses a court system may be validly compared. This raises moral and ethical considerations which again result in political choices that are ambiguous at best. As examples: is it ethical for a government to spend $150,000 on uncertain surgery for an 85-year old, and refuse to make $5,000 worth of court effort available to resolve a civil dispute that may poten-

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It is in that context troublesome that the cabinet response to the Law Commission’s report (that suggested structural changes to the court system) was to refute such changes but to insist on process improvement by further bureaucratisation of the system, under control of the executive branch. See in that context also note 56, referring to a truism of political organisation. 31 For example “Delivering justice for all” in New Zealand, and “Access to justice” in England. 32 It has been argued that differential rates of national economic development are in large part explained by the relative effectiveness of legal systems in reducing the cost of exchange be-

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tially ruin a substantial part of the social productive lives of two 25-year olds? Or: is it ethical for a government to “provide” redress against its own actions through an “independent” court system that is simply non-usable because of its costs? At a more fundamental (but not less important) level, it should be considered where the responsibility lies for evaluating the courts’ performance, and for taking corrective action if that is deemed necessary. In our system that responsibility will probably be considered to lie with parliament, although it can be validly argued that this responsibility can only properly lie with the court system itself, and that a “higher order” (i.e. constitutional or democratic) mechanism ought to be available to regulate this evaluation. Despite these evaluation problems, there is no doubt that the New Zealand court system is currently not fulfilling its social function, or as the Law Commission phrased it:33
The core lesson we have learned from the people who offered their views in the course of this review is that the court system has to do better in winning and retaining the confidence of New Zealanders from all our many communities.

E. The public utility of civil litigation
Litigation means adjudication in a government controlled environment, supported by state authority. This must be compared with “alternative” (non-adjudicative) processes or with adjudication outside the court structure. The reason parties seek court adjudication is the coercive power to compel participation and enforcement. The “threat” of using the courts’ process thus also acts to facilitate more consensual processes.34 The public utility is therefore to support consensual methods of social organization, and to resolve disputes where that is not possible by consentween strangers. (North (1981,1990), as referred in Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 261. 33 New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and Tribunals, NZLC Report 85 (2004) ,3. 34 In the sense that the “threat” of litigation compels parties to participate in other dispute resolution processes, or provides for enforcement of outcomes that have been achieved by way of other processes. In that sense all alternative dispute resolution operates “in the shadow of the law”. See Laurence Boulle and Miryana Nesic Mediation : principles, process, practice (Butterworths, London, 2001)

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sus.35 In order to investigate the role of the state in civil litigation, some of its characteristics can be considered.

1 Litigation uses an adjudicative process, supported by state authority.
The courts in their traditional role (in our system) have only one method of dispute resolution available; adjudication. This means that consensual resolution processes,36 alternative determination processes,37 and inquisitive processes38 are unavailable in principle.39 As a result, disputes end up in an environment that is often unsuitable for efficient and rational problem solving.40 This is the result of the principle that the authority to compel participation and enforcement must be balanced by notions of the “rule of law”.41 In our system, the judge is a state appointed official who is formally independent, not only from the parties, but also from the government of the day. The authority executed by the judicial branch is (in theory and in our system) only trumped by the pinnacle of democratic decision making, the legislature.42 The role of the “state” is therefore the provision of the required officials and the maintenance of the institutional infrastructure in which the courts can operate and exercise their social and constitutional functions. It must be noted that the character of the process (for instance adversarial v inquisitorial) is not principally related to the status and/or effect of court determinations. While a change in the first could be characterised as an internal matter for the justice system,43 the second has a fun-

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Whereby it must be noted that preference for amicable resolution over litigation is not a contemporary issue, a manual called Laws of Henry the First (written in the early twelfth century) proclaims that to be English Law “amicitia over judicium”. Harold Berman, J Law and Revolution, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge Mass , London, 1983) 74. 36 Such as mediation and facilitation. 37 Such as hierarchical determination and expert determination. 38 Where evidence is not presented by the parties but obtained by the court, and where argument is restricted. 39 Although increasingly this is changing, especially in areas where policy implementation is at issue, as will be discussed below. 40 As will be seen, this is recognised in jurisdictions around the world and is leading to dramatic “paradigm shifts” in the way civil litigation is developing. 41 Including the fundamental concept of “natural justice”, which is especially relevant in the adversarial context of common law adjudication. 42 According to the Diceyan concept of parliamentary sovereignty, and restricted by conventions such as the principle that individual cases shall not be overruled. 43 The procedure reforms contemplated in the District Courts are an example.

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damental constitutional effect, as it addresses the relative authority between the courts and other organs of the state. 44 This raises the question of the practical implementation of the courts’ constitutional position. Although that is conceptually very clear (constitutional independency from legislature and executive), in practice the entire court organisation, including the strategic development function, is tightly controlled by the executive. The constitutional independence of the courts is thereby restricted to a fiction, based on the independence of the judges only, who are cast in an employment situation that is said to safeguard judicial autonomy. To what extent one is prepared to accept that this is a sufficient safeguard to warrant the independence of the entire court organisation (which is many times larger than the group of judges) depends largely on one’s scepticism or experience with how large organisations work in real life, rather than as conceptual models.

2 Litigation is an adversarial process
The common law litigation process is one of contest, focused on one event, the hearing, where issues of fact and law are determined in one sitting. The resulting public utility is that of “a day in court”, a process that has something of the medieval joust where the issues are brought to a head in one decisive match between the opponents. The role of the state lies in the provision of the infrastructure: the arbiter overseeing the match, appropriately decorated premises, and mechanisms to compel the presence of all the individuals that are required to hold the battle. This must be contrasted with continental systems where each hearing is but a phase in the construction of a ‘dossier’, ultimately decided on by the appropriate level in the judicial hierarchy, and where the role of the state also includes all the administrative and preparatory work to compile this dossier, which may be the product of a number of sessions. The rules of preparation for the common law “court battle” are highly structured, in order to assure a “fair trial”. However, once the actual joust gets underway it is largely governed by the arbiter’s discretion. Far reaching decisions can be based on how issues were presented “on the day”. The “duel” focuses on substantive
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Compare the role of ‘supervising’ bureaucrats in the communist Soviet court system, where a decision of lower courts did not have effect until it was ratified by a higher authority. Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 202-204.

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justice, applied to the facts and argument that are presented. This focus narrows when lay decision makers are also introduced. In our court system that is now practically restricted to criminal matters,45 but the increase in lay decision makers introduced statutorily and outside the court structure, must be noted. Pure common law adversarial procedure, where the parties control the issues, the evidence and the argument, concentrates on “declaring a winner”. There is little scope for investigation whether other legislation or government policy would require an altogether different outcome from what the parties are arguing for, or whether additional evidence would be required to appropriately determine that. It follows that legislation with a strong social management character is difficult to implement by enforcement through adversarial proceedings.46 The changing

character of court process in for instance the family and youth courts must be understood in the context of the social engineering character of the relevant legislation.

3 Litigation has a wider impact than the issues at hand
This proposition follows from the common law doctrines about determining and developing law, which are grounded on the concepts that like cases must be treated alike, that law is omnipresent although perhaps not yet made explicit, and the doctrine of stare decisis. The legal-structural consequence is that each decision must comply with what has been termed social congruence, systemic consistency and doctrinal stability.47 Social congruence holds that the body of actual legal rules should correspond at any given time with a hypothetical body of rules that would be arrived at by giving appropriate weight to all applicable social propositions. Systemic consistency holds that the system of rules must be consistent within itself, i.e. the law as a whole is a system and not a random mass of

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Justices of the Peace and jury members, while there are also some adjudicative tribunals within the court setting that use lay members, but these are exceptions. 46 “Imagine now that a state begins to use the legal process, or a part thereof, as in instrument to advance values and policies broader than the resolution of a particular dispute. To the extent to which these transcending objectives requires verdicts to be substantively accurate, it becomes more and more costly to sacrifice such verdicts for the sake of procedural integrity.” Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 103. 47 See Melvin Aron Eisenberg The nature of the common law (Harvard University Press, Cambridge, Mass., 1988) , chapter V.

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non-related rules. Doctrinal stability introduces time as a factor, and holds that systemic consistency must also be achieved over time. The resulting public utility is therefore that court decisions clarify the law and adjust and develop it. The role of the state in providing civil litigation therefore goes far beyond resolving individual disputes. “Sponsoring” civil litigation has the side effect of enriching the law. Excluding civil matters from the formal courts has the opposite effect, but it leaves opportunity for controlling the development and implementation of the law through legislation only. This is especially so where adjudication governed by legislation is exercised by non-court adjudicators.48 In that context, attention must also be drawn to the increasing phenomenon of “adjudicative legislation”, interest groups litigating carefully selected fact scenarios in an attempt to move the courts to adjust the law.49 Restriction of access to the courts, which represent the only constitutional adjudicative authority, would effectively block this important democratic mechanism.50 It must be remembered, that in the early development stages of the common law system, the state (or rather the King) was not indifferent to civil proceedings, quite the contrary. Almost all feudal matters had a direct consequence for the King’s revenue, as had a significant part of what we would now call criminal proceedings. As adjudication was the state’s main function,51 it integrated other functions into it, and conversely, litigants implicated the King into their matters in order to compel participation and enforcement. It was only after the concept of “state” had been developed as being separate and independent of the ruler of the day, that courts could develop as an independent source of authority, which could be relied on without making the monarch in some way party to the dispute. This was a distinctively different development between England52 and the continent, were canonical law provided much earlier for an abstract and separate system of court authority.
48

I.e. without decisions that create precedent, especially where the decision process and its outcome is also confidential. 49 Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 181. 50 For a comparable recent New Zealand example see Chamberlains v Lai CA17/03, 8 March 2005, currently awaiting a reserved decision from the Supreme Court. 51 See note 95. 52 Where remnants of royal intervention in court process remain in place to date.

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4 Litigation is public, and recorded
There are many aspects to this characteristic, varying from the protection of the integrity of the process, to the necessity of a formal record of substantive relationships between parties, registration of entitlements to property, the giving of reasons, or even the formal registration of events. There is a strong historic significance to these aspects, which is closely connected to the maintenance and development of law. The public utility is that justice is not only done, it can also be seen to be done; court decisions can have an educational function, and are made subject to scrutiny. That scrutiny is not restricted to superior courts, but also the public, social and political critics, the legal profession and especially the legal academics. The public utility of the last source of scrutiny is that the development and application of the law receives feedback from a section of society that is capable of doing so in a more or less ‘scientific’ manner. Just as one would be hesitant to leave the structural design of a high-rise building to the office workers that will use it, one would want to involve legal structural design specialists in development of the law. The role of the state (especially in a common law system) is to provide for civil litigation that is public, open and accessible, and which generates public records that can be used by both professionals and the general public. As an example, there is very little case law on the operation of the Consumer Guarantees Act 1993, possibly because its administration is largely in the hands of tribunals that do not publish decisions. One can therefore argue that removing decisions from public scrutiny improves the relative authority of legislation, especially where decision making under that legislation is left in the hands of more or less executive officials.53

5 Litigation includes a structured appeal system
Although this is a relatively late development in common law systems, it is now well recognized that each court decision must be potentially subjected to at least one re-consideration of the issue before a superior court. Although evidence is not normally re-heard, the common law appeal is a re-hearing, and not a hierarchical continuation of trial, as it is in civil law systems. The decision at each level
53

In other words “unwanted tinkering” by judges is effectively prevented.

18

is considered to be a complete and final determination of the issues placed before the tribunal; the judges in lower courts are also involved in the law-developing process, and are not normally on a career path that leads to higher judicial positions, as is the case in civil law systems. The rules by which decisions are made are amorphous and not sharply separated from the way decisions are made in society. The common law appeal system operates because it has the purpose of upholding and developing an internally consistent rule system, rather than applying a rule system in a consistently managed fashion. The public utility of the common law structured appeal system is its quality control mechanism, which is vital for the adage that “the law works itself pure”.54 An appeal in the common law structure may resemble “having another bite at the cherry”, which provides a social function, although this is again largely one of perception. It gives litigants the certainty that a decision can always be subjected to scrutiny by a court of a higher standing. The state’s role in this respect is therefore to provide an accessible structure of superior courts. The appeal process has an important function for the state as well, as it provides an efficient control mechanism on the activities of the lower echelons of bureaucracy. This has been argued to explain the willingness to invest in appeal systems in states that are characterized by strong hierarchical authority but low regard for individual rights, where such an interest in appeal systems would not be expected.55

6 Litigation is a professional legal process
Adjudication in courts is dominated by legal professionals.56 The typical civil law suit involves solicitors and counsel for both parties and a legally trained judge, with a substantial practical experience as counsel. As a result, the operating participants in the process share a common background of somewhat esoteric knowledge, which makes the process difficult to comprehend for the actual litigants. In addition, the professional players all have real duties and obligations towards the

54 55

Ronald Dworkin Law's Empire (Belknap Press, Cambridge, London, 1986) 134. See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 216. 56 They are members of what may be called an “epistemic community”, and as such represent a political force with its own inherent bias. See Ibid (173.

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system itself, which can override the obligations to the respective clients. Consequently, the court environment has its own culture, purposefully maintained in order to remove cultural differences between the parties from the abstract facts underlying the legal issues. It also assists in creating an atmosphere that supports the system’s formalistic authority. The public utility is that the court process operates at (the perceived) high level of professional quality and in a well established, and strictly regulated environment. The entire proceeding is thereby

placed in a well-controlled atmosphere, considered the pinnacle of “due process”. The state’s role is not only to provide the requisite infrastructure, but also to maintain a system of recognition of the courts’ status that makes the maintenance of this deliberate professional environment meaningful. Conversely, a process that relaxes this professional quality will lose some of its adjudicative characteristics. If adjudication is decision making following proof and reasoned argument, litigants must have the qualities to be able to present proof and argument in accordance with the rules of process, and in a way that aligns with substantive law. Changing the professional quality of the process may make it more accessible, or easier to use by non-legal professionals, it will in fact change it from litigation into something else.

F. The constitutional function of the courts
Civil litigation is a specific process that provides a number of public utilities, not only for the disputants and thereby for society in general, it provides the environment in which individual interests can be measured against laws and regulations that emanate from the state itself, and such actions are couched in the same safeguards as matters that are strictly between citizens. As relationships between individuals are increasingly governed by regulation, and as the state increasingly operates through agencies that have a regular legal personality, an increasing number of civil suits will include decisions that evaluate actions of the state. The social function of the courts is therefore directly connected to their constitutional function, which depends on the practical relevance of the courts’ constitu-

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tional position, and the constitutional scope of the courts’ decisions. The question arises whether alternative methods of adjudication can satisfy that requirement. That can now be considered by looking at alternatives to civil litigation.

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III ALTERNATIVES TO CIVIL LITIGATION
The field of consensual (i.e. non-adjudicative) dispute resolution is several orders of magnitude larger than adjudicative alternatives to civil litigation, but only a small number of consensual processes are described here, typically those where legislation has curtailed the possibility for civil litigation. In this context both contemporary and historical alternatives are to be considered. Historical alternatives are relevant because:57 Efforts to understand the creative activity of judges in a common law system necessarily overlap with or lead into an attempt to write a sociological history of the common law, requiring study of the actual past relations of legal institutions, precepts and doctrines to the then existing social conditions. The historical perspective can bring in sharp focus how our contemporary institutions operate. When considering historical developments, it must be noted that early law did not develop as an instrument to apply rules in order determine individual rights and entitlements, but as a system of reconciliation, to hold people together, rather than separate them.58 Finally, a brief comparison with civil law systems will be made.

A. Contemporary alternatives.
1 Alternatives within the government structure
These alternatives replace civil litigation with processes presented as either independent from government or democratic in nature, but which are in fact subject to close control by the government authority that is responsible for policy development and implementation in the relevant subject area. These alternatives to adjudication comply closely with a hierarchical ideal of government authority; resolution of dispute takes place in the context of policy implementation by specialised
57 58

Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966) 52. “Law was conceived as primarily as a mediating process, a mode of communication, rather than as a process of rule making and decision making.” Harold Berman, J Law and Revolution, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge Mass , London, 1983) 78.

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bureaucrats, organised in hierarchical organisation structures. The role of the state in these processes is therefore twofold, first access to conventional courts is restricted by making it outright impossible, excessively costly, cumbersome, or simply too time-consuming. Secondly, centralised policy becomes the operative benchmark for hierarchically organised distributed decision making. The following alternatives must be compared and contrasted with providing a well distributed and accessible, decentralised general court structure, with its own, independent, constitutional position.59

(a) Executive decision making
Executive decision making increasingly involves procedures that closely resemble adjudicative structures. In some instances these procedures involve disputes between parties with an “adjudicating” government organisation acting in an executive capacity. Examples are first instance determinations under the Resource Management Act 1991, the Local Government Act 2002, or decisions of various controlling boards or organisations dealing with censure, certification etc. Typically these structures are governed by empowering and procedure-controlling legislation, and they have a final appellate procedure that involves the general courts, or a specific branch of the court system.60 These processes typically involve specialised issues that are strongly influenced by policy objectives. Decision makers are often specialists in the particular field, or “democratic” bodies, supported by specialized bureaucrats. A variety of procedures may be used, which may have some characteristics in common with court process, although they tend to be limited in one or more of the characteristics that are considered fundamental to real court procedures. This type of alternative to litigation is the result of the increasing regulation of society. The issues typically arise because individual activity in some way interferes with what is considered the public interest.61 That common
59

60

61

See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) at 37: “It is an old truism of public administration that shifts in organisation and jurisdiction are never simply technical. They are almost invariably vehicles for policy change. The transfer of a particular service from one governmental agency to another inevitably alters the nature and direction of the service.” The procedural steps that are required before the matter can be brought before a general court are often of such a prohibitive nature that this method of appeal is practically excluded. A good example is the tort of nuisance, now often regulated by (mostly delegated) legislation. Compare the classic judicial approach in St Helen’s Smelting Company v William Tipping [1865] 11 ER 1483; (1865) 11 HL Cas 642

23

interest may be very broadly defined in the empowering legislation, or even left entirely to the determination of distributed lower-level authority.62

(b) Government “support” in lieu of civil litigation
The Accident Compensation legislation and organisation are perhaps the most significant examples where a whole category of civil dispute is simply removed from the courts and replaced by a bureaucratic apparatus that substitutes a Byzantine set of rules and executive discretion for a potential defendant. The ACC system provides an instance where policy objectives are directly implemented into the very core of what would otherwise be a process where the state’s involvement would be restricted to providing adjudicative infrastructure, as it is in the rest of the world.63 It can be argued that an active litigation field is a better mechanism to drive safety issues than a government department, although it of course requires a suitable court infrastructure to achieve that.64

(c) State sponsored mediation services
Here legislation creates a compulsory “consensual” process that must be traversed before adjudicative structures become available. Processes in employment and family disputes provide examples.65 These are not real alternatives to litigation, but preliminary steps, aimed at providing the parties with an opportunity to avoid the disadvantages of litigation. The strength of these programs is therefore inversely correlated with the weaknesses of the litigation system. In other words, would parties opt for these compulsory processes if efficient methods of adjudicative decision making would be available? The areas in which the government in62

See for an extensive and early description of the effect of increasing administrative power: Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966) Chapter 14, paras 16-25, in which review of administrative power is also considered in the legislative context of administrative decision making p 713-714. 63 It is in that context interesting to note that the National government attempt at privatisation of the administrative organisation of the scheme was reversed by the next incoming Labour government. 64 See for a discussion of the American “tort liability transformation”: James Robert Forcier Judicial excess : the political economy of the American legal system (University Press of America, Lanham, Md., 1994) 43-51. And for a practical example of that process in operation, pages 133-135 “litigating technological disputes”, which demonstrates that litigation eventually drives social and technical development, which arguably government bureaucracy will never achieve. On the other hand, there are transaction costs that may inequitably effect consumers in general, see p159. 65 S10 Family Proceedings Act 1980, S159 Employments Relations Act 2000.

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tervenes tend to be those in which high levels of social engineering are considered desirable, and where apparently the courts are considered too unreliable because of their independence, or too cumbersome as an effective instrument of policy implementation.

(d) Specialised tribunals
New Zealand has an abundance of specialised tribunals, most of them closely connected with specialised departments that implement the policies out of which, or under which, the disputes arise that are determined. Although most tribunals operate in an adjudicative capacity, there may be more or less compulsory “consensual” processes included in the various schemes under which they operate. An example is the Tenancy Tribunal organisation, and its related mediation service.

(e) Specialised private adjudication services created by legislation
Although strictly speaking these fall outside the government structure, these adjudication processes can only exist because of specific legislation. The format is different from that of tribunals, which mostly operate under the government umbrella, with officials paid for by government, using government infrastructure etc. The distinction between dispute resolution services within or outside the government structure is not always easy to make as hybrid forms exist. An example is mediation in the family court, which is a compulsory process introduced by legislation, but performed by private practitioners, paid for by the state. Another example is adjudication under the Construction Contracts Act 2003, which provides for a “compulsory” process, with procedures that are governed by legislation, performed by a private practitioner paid by the parties, who may be selected by the parties or by an authority appointed by the state for that purpose. This “adjudicator” makes decisions that are directly enforceable in the courts. The jurisdiction has no upper limit, and is wide enough to include charging orders over real estate.

(f) General (disputes) tribunals
These form a semi-adjudicative alternative, which can only deal with a limited range of issues and value in dispute. They operate a hybrid process, whereby the referee, after hearing the parties, attempts to come to a consensual resolution, but

25

adjudicates if that fails. There are very limited evidential rules, the process is private and confidential and of a somewhat inquisitory nature. Legal representation is prohibited, and only very limited appeal is possible. Nevertheless, parties can

be compelled to appear, and are subject to ‘default judgment’ if they do not do so. In terms of organisation, the tribunals use the administrative organisation and infrastructure of the District Courts, and they are technically a “division” of those. 66

2 Alternatives outside the government structure
The most important adjudicative alternative outside the government structure is arbitration.67 Arbitration is based on the premise that parties are free to enter into any agreement, including one that regulates their dispute resolution. Arbitration developed predominantly in the environment of international commerce, where it was recognised very early (in Roman times) that a separate body of rules, more or less independent from domestic rules in different jurisdictions, would be helpful to support cross-border trade.68 The period of rapid industrial development and enormously increasing international commerce in the early twentieth century gave rise to formal conventions between states to develop a system of rules and recognition for arbitration awards. Virtually all countries are now signatories to these international treaties, and most have adopted in some way the model laws developed by the United Nations. New Zealand is no exception, and the Arbitration Act 1996 incorporates almost verbatim the UNCITRAL model law. The act gives the arbitrator many of the powers of a High Court judge.69 The parties remain in total control of the way the process is organised, while the act provides for default rules. Court processes tend to be very slow, and although (in the common law system) control over the process remains largely with the parties, they depend on court resources, time-tables, infrastructure etc. In commercial disputes large amounts are often at stake, and individuals, organisations and interests are involved that
66 67

Peter Spiller The disputes tribunals of New Zealand (2nd, Brookers, Wellington [N.Z.], 2003) What follows is derived from (among others) A A P Willy Arbitration in New Zealand (Lexis Nexis, Wellington, 2003) , David Williams "Arbitration and Dispute Resolution" New Zealand Law Review 1 68 This “Jus Gentium” is the basis for international law, and for what is now called “Lex Mercatoria”, a developing codified set of rules, maintained by the United Nations that is increasingly used in supra-national commercial dispute resolution.

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would suffer from being subjected to the court process. Arbitration provides an alternative that is better suited the fast-paced interests of business. Large and sophisticated international organisations have sprung up that provide arbitration services, and many high-calibre judges have left the bench to become arbitrators. The success of arbitration may be measured from the absence of significant commercial litigation in the courts. Appeal structures within arbitration agreements are increasingly used, aimed at providing an alternative to the appeal process to the High Court.70 While arbitration is a strictly adjudicative process with all the procedural safeguards of litigation, backed up by recourse to the ordinary courts, it lacks openness and public (or academic) scrutiny, there is little development of precedent, and it is as expensive as litigation. Given its advantages, especially for larger commercial disputants, arbitration provides for a niche that the courts cannot easily fill. This is not necessarily a positive development. For example, a consequence may be that the development of the law is hampered by the absence of litigation at the commercial cutting edge. Another example is that confidential resolution of dispute between large commercial players may be to the detriment of third parties or societal interests, such as customers, the state itself, and environmental interests.71 There may, in other words, be political reasons to make court adjudication more or less competitive to arbitration.

B. Historical alternatives
The scope of this paper does not allow discussion of the development of the civil courts in any detail, but one comparison with ancient law may not be omitted, which shows the lack of originality of contemporary systems of non-court adjudication.

69 70

With the exception of inherent jurisdiction and powers of contempt. See David Williams "A proposal for a domestic arbitration appeals tribunal: AMINZ Arbitration Appeals Tribunal" New Zealand Law Journal 75-76 and Sherwyn Williams "AMINZ arbitration appeals, an introduction" "New Zealand Arbitration Day" seminar (2006) 71 For the sake of the argument, one could consider a dispute about price-fixing, a conflict about a construction mistake that has lead to environmental damage, a conflict about liability between insurers where both deny liability to the insured etc.

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The southern part of England was a part of the Roman Empire from 45 until 410 A.D. when the Romans withdrew in a well-considered and formal manner.72 Although Roman law was well established for a period of over 300 years, no trace of it was left in England after the Saxon (and later Scandinavian) tribes dominated the country in the following centuries.73 Later remnants of Roman law in the English legal system must be traced back to influences after the Norman Conquest. The Roman process for civil dispute resolution was quite advanced; disputants would see a representative of the Preator, an elected official, responsible for enforcing the law. They would choose a judge (“judex”) from a list (“the album”) of qualified citizens. If they could not agree on a judge, one would be appointed for them.74 The “album” did not include legally trained citizens, but would reflect a broad cross-section of society, so that parties could choose a judge for his practical experience in the subject matter of the dispute, or simply because they trusted him for other reasons. The judex would make a decision based on the facts as ascertained by him, and the Preator would enforce the decision. When a question of law arose the judge would consult with legal professionals (“the jurists”). These would provide mostly written answers (“the responsa”), which later became the basis for the famous Roman legal treatises.75 A judge could ask an opinion from maximum three jurists, and could choose which legal opinion he preferred if they disagreed. When the jurists agreed, however, the judge was bound to follow the “responsa” and to decide accordingly. As this example shows, law can be abstracted from dispute resolution in a more rigorous way than is achieved in the common law system, and herein also lies the root of the differences between common and civil law systems. The ancient Roman system left adjudication to the parties, while it preserved a learned development of the law.

72

By way of a letter from Emperor Honorius to the English civitates, telling them to look “to their own defence”. See Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press, Durham, 1999) 73 This shows the frailty of an advanced legal system in comparison with the physical remains of the Roman culture in England, of which abundance is in existence to date. 74 Compare this with the provisions of the Arbitration Act 1996 or the Construction Contracts Act 2003, which are practically identical. 75 Of which the codifications of Justianus are the best known.

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C. Differences between common and civil law systems76
In the Roman civil system the decisions of the judges did not form a precedent, but the promulgated law or the persuasiveness of the jurists’ opinions constituted the law.77 The continental European states were also characterised by an earlier separation of ecclesiastical and secular authority structures, following the Papal Revolution in the twelfth century.78 The development of the abstract concept of “state” (as opposed to the personal secular and spiritual authority of a monarch) started earlier on the continent than it did in England.79 Continental States produced rules and laws which were applied through administrative government structures. These developed in a hierarchical manner, using the organisation of the Catholic Church as a prototype. Canonical law had much influence on the legal system, which integrated the academic professionalism that developed from the “re-discovery” of the Roman (Justinian) treatises in the late eleventh century. The inquisitive character of continental proceedings may be traced back to this difference. In England the early universities taught Roman law, but its use was restricted to specific areas, and it was not directly applied in the common law courts. The profession of law developed from what we would now call “trade associations” and not from an academic heritage. Although there were early common law treatises, they lacked the sophistication of the Roman texts, and it was not until Blackstone that attempts were made to systematically and comprehensively describe the common law.
76

What follows is derived from Harold Berman, J Law and Revolution, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge Mass , London, 1983) and Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press, Durham, 1999) 77 As can be seen, the distinction between the approaches of common law and civil law systems has its roots in whether the decisions of the judges or the opinions on the law by the jurists are considered to be “law”. The Roman civil system in many ways is a rather advanced hybrid between both. 78 “The creation of modern legal systems was, in the first instance, a response to a revolutionary change within the church and in the relation of the church to the secular authorities. And here the word ‘revolutionary’ has all the modern connotations of class struggle and violence. In 1075, after some twenty-five years of agitation and propaganda by the papal party, Pope Gregory VII declared the political and legal supremacy of the papacy over the entire church and the independence of the clergy from secular control. Harold Berman, J Law and Revolution, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge Mass , London, 1983) 87. 79 Ibid (113).

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By incorporating Roman law, civil law systems have a longer practical history. If the adage that “the law works itself pure” is correct, civil systems are more advanced, simply because this purifying action has been at work for well over a thousand years longer. This effect is demonstrated in both substantive and adjectival law. Good examples where relatively recent common law “restatements” now closely align to Roman law are commercial legislation, such as the Sale of Goods Acts, principles of property law, torts, etc. As seen above, developing alternatives to common law civil procedure also gravitate towards principles that would not have surprised a citizen of Rome in the first century. For the current topic, two important differences between common and civil law systems emerge from this brief comparison, first the way law can be reformed by the process of its application. This is an accepted phenomenon to a common law jurist, but alien to his civil counterpart. Secondly, the concept of state and state hierarchy in the application of law, which is more pronounced in civil systems. Because of the inherent problems with the separation of powers that may seem to result from such hierarchical structures, civil jurisdictions tend to have written constitutions and special constitutional courts. This structure is logical to balance powers, as a hierarchical court system applying law is responsive to legislative demands, while the constitutional review function operates in the opposite direction.

D. The constitutional function of alternatives to litigation.
The alternatives to civil litigation cannot perform the constitutional function of the courts. The tribunals involved lack the constitutional position, the decisions are confidential or without precedent value, or are made under legislation that restricts the scope of any evaluation of objectives against other social or legal principles. Promoting alternatives to litigation is a powerful way by which executive and legislative forces can reduce the possibility of critical analysis by an institution with independent and constitutional powers. Redress against decisions made in alternative processes tends to be restricted to an investigation of jurisdiction and due process. Even blatant errors of law can often escape scrutiny, either through di-

30

rect prohibition or practical limits on pursuing claims. Although it is undeniably advantageous that mechanisms are available to efficiently bring an end to dispute, it is argued that the lack of possible scrutiny carries the significant risk of uncontrolled executive and legislative rule making.

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IV CONTEMPORARY DEVELOPMENTS IN CIVIL LITIGATION A. A comparison with some other jurisdictions
Civil litigation in England and Wales has been fundamentally reformed following the seminal Lord Woolf report “Justice for all”.80 The first of the three piers on which the changes are built is the improvement of access to the courts by simplifying procedure and providing information to (potential) litigants. Modern technology is used extensively. Procedures can be initiated and sometimes completed online, and the use of the internet is continuously expanded, for instance in court planning and the distribution of case specific information to parties and counsel. Part of the effort is emphasis on ADR to resolve differences, although it is not made compulsory. Severe cost awards will haunt a party who has failed to agree with reasonable proposals to terminate a conflict. The new rules place a stringent onus on parties to consider their case carefully in all its details before litigation is started. This brings much of the costs of the process forward, thereby providing a real incentive to resolve rather than litigate. A secondary effect is that solicitors and counsel are deterred from inaction in the early stages of a case, as used to be the commonly accepted procedure.81 The second pier is a revision of the legal aid process, which has made civil litigation available to a much larger fraction of society. The third pier was the formal introduction of contingency fee arrangements, which have the effect of providing impecunious parties, who have a realistic claim, with high calibre legal representation. The English legal system retains most civil matters within the actual court system; it does not have the wide range of tribunals as in New Zealand and lacks ACCtype legislation. Instead, specialised courts are created within the system, and the

80

Woolf(Lord) Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1996) . And for a more detailed but concise description see Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) 101.

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pre-litigation rules and procedures are tailored to specific areas of dispute. The English reforms have resulted in a strong decrease in the time it takes for matters to be disposed of, less appeals from the Queens Bench and Chancery Divisions, and a doubling of appeals from tribunals, which may show that “real” courts are a preferred way of dealing with disputes by those involved.82 The English courts have regained social significance, and are starting to increase their political relevance, also as a result of the increased integration into the European legal structures.83 New South Wales has recently overhauled its system of civil procedure in all of its courts by way of comprehensive and all-encompassing legislation. It follows the essence of the English reforms, but has an increased focus on ADR, which can be used as a compulsory mechanism. The legislation provides for certification of ADR practitioners, and potentially gives arbitrators the jurisdiction of judges, even including contempt powers.84 The United States is often seen as the pinnacle of excessive civil litigation, or even as an example of judicial excess.85 If anything, the use of civil litigation remains strong and the role of the state(s) is focused on making the system increasingly efficient. Information technology is used on a wide scale, which in some states goes as far as having all the documents filed in a case publicly available online in information systems that also contain court planning, counsel involvement, evidence depositions etc. In these jurisdictions the role of the state in civil litigation is aimed at improving the process, maintaining the courts’ constitutional role, and enhancing access to the courts in various ways, most notably by the use of information technology.
81

I.e. drafting “minimal pleadings, and focussing on interlocutory steps to refine and develop the substance of the case, which arguably leads to an escalation of issues. 82 United Kingdom Department for Constitutional Affairs Judicial Statistics Annual Report (2004) 83 Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) 169. 84 Civil Procedure Act 2005 (NSW) 85 James Robert Forcier Judicial excess : the political economy of the American legal system (University Press of America, Lanham, Md., 1994) . Forcier argues that the appetite for litigation in the US has exceeded reasonable limits, and speaks of a “transferable responsibility myth” which is exacerbated by the pursuit of own interests by the “legal industry” and which leads to an unacceptable deviation from the proper purposes of economic activity. (see 219-225) His ultimate argument is for de-politicising the courts and reducing the chasm between the “culture of law” and “popular culture” (241).

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By contrast, in New Zealand the Law Commission suggested far reaching structural and procedural changes to the court system, for all areas of law. The civil changes focussed mainly on accessibility, the use of ADR and judicial oversight of all tribunal activity.86 The proposals were firmly rejected by the government, which suggested procedural improvement, primarily by way of bringing the organization of the court system under executive control.87 The push for increased use of ADR was deferred by reference to a pending report, which eventually proved to be of a sub-standard quality.88 In an attempt to streamline civil litigation the New Zealand Rules Committee is currently reviewing procedure in the District Courts only.89 The District Court rule system will introduce an improved system of case management, where judges are given more powers to manage the litigation process, and where ADR becomes compulsory, in the form of a judicial settlement conference, i.e. within the operation of the court system itself. Anecdotal evidence shows that the High Court is reluctant to consider such further reaching rules. Although that is understandable in the appellate jurisdiction, it is difficult to see why first-instance proceedings could not integrate compulsory ADR attempts.

B. Conclusion
New Zealand seems to be on a different course from comparable jurisdictions. The government statements in the response to the Law Commission report,90 leave no doubt that this is a policy choice, and not a different pace in adjustment of the legal system. The somewhat curious s3(2) of the Supreme Court Act 2003 underlines that proposition.
86

New Zealand Law Commission Delivering Justice for all, a vision for New Zealand Courts and Tribunals, NZLC Report 85 (2004) 87 New Zealand Government Government response to Law Commission report on delivering justice for all, October 2004 (2004) 88 Kay Saville-Smith and R Fraser Alternative dispute resolution : general civil cases / prepared for the Ministry of Justice by K. Saville-Smith and R. Fraser (Ministry of Justice,, Wellington, N.Z., 2004) . This report is very poor in quality, both statistical and substantive. 89 Rules Sub-Committee to the New Zealand Court Rules Committee Consultation paper 23 August 2004 (2004), Rules Sub-Committee to the New Zealand Court Rules Committee Response of District Court Claims Sub-Committee on submissions on rules committee consultation paper issued 23 August 2004 (2005) 90 New Zealand Government Government response to Law Commission report on delivering justice for all, October 2004 (2004)

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V

A CONCEPTUAL FRAMEWORK FOR THE
ROLE OF THE STATE IN CIVIL LITIGATION

The strands developed above can now be drawn together to construct a framework that describes the concepts “role of the state” and “civil adjudication”. That cannot be completed without also considering the concept “authority”, which connects the other two. Although the role of the state is broader than the provision of adjudication services, the way it uses, develops, administers and implements law are vital indicators in the analysis of state activity in this context. The following framework uses parts of the comparative legal model developed by Mirjan Damaska,91 and the empirical work of Shapiro and Sweet Stone,92 who describe an increasingly political role of courts around the world.93

A. Adjudication
The concept of adjudication follows from the concept that rules, however developed, can be used to regulate behaviour within a society. This desire to regulate behaviour flows from the recognition that cooperating individuals will have consciously shared or common aims.94 However, people are individually vulnerable, and this increases with the specialisation95 that is necessary to achieve optimal

91

Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 92 Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 93 And see Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) at 1, who quote Vallinder’s definition of “judicialisation”: ‘the expansion of the province of the courts or the judges at the expense of the politicians or the administrators’ (Vallinder,1995). 94 I part company here with Fuller, who argues that another basic form of social ordering exists, reciprocity. In my view “common aims” and “reciprocity” are species of the same genus. (See Lon L. Fuller "The forms and limits of adjudication" (1978) 92 Harv LR 353-409 and the discussion of this article in Lon L. Fuller and Kenneth I. Winston The principles of social order : selected essays of Lon L. Fuller (Rev., Hart, Oxford, 2001) For the opinion that reciprocity is the normative basis for the dyadic form , see Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 56. And for a description of the dyadic form as building block of larger social structures see Georg Simmel The Sociology of Georg Simmel (Free Press, New York, 1950) 122. 95 An economic principle that was applied long before it was formally recognised and described by Adam Smith, Adam Smith The Wealth of Nations, Book I-III, first published in 1776 (Penguin, London, 1999) , Chapter I, “Of the division of labour”.

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cooperation and expansion of material objectives.96 There are therefore compelling reasons to create a “legal order”, i.e. a system of enforceable rules that protects the societal objectives (and not necessarily each individual in society). As it is a human characteristic to strive for maximisation of individual goal satisfaction,97 conflict is an inherent consequence of attempts at cooperation.98 Adjudication is but one form of determining these conflicts. It is characterised by the use of a more or less independent third party,99 preferably not interested in the outcome of the conflict, to decide the dispute following the provision of proof of facts and reasoned argument, and under application of the relevant rules.100 The addition “civil” indicates dispute between individuals or between individuals and the state in a civil (i.e. non-criminal law enforcing) capacity. Historically this distinction did not exist, and there remains a “grey area” where civil and criminal adjudication overlaps.101

B. “Courts” and the concept of authority
1 The relation between authority and adjudication
Adjudication can only operate if disputants can be compelled to participate in the process and abide by the decisions produced. This introduces the concept of authority. A person or institution must be available that by some means has a suffi96

As an example: specialisation requires the development of an administrative class, who are themselves incapable of producing food and protecting possessions, these ‘administrators’ are therefore vulnerable unless a legal system protects their interests. 97 See A Maslow Motivation and personality (2nd, Harper & Rowe, 1970) 98 Whereby it is a moot point whether conflict drives societal development, or whether conflict results from societal development, see Berry Zondag The structure of civil conflict, a first step to computer assisted dispute resolution. (published Masters thesis), Occasional Paper Series, Centre for Dispute Resolution. (Palmerston North, Massey University, 2006) The development of governance as a function from the use of triadic dispute resolution, see Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 59-65. 99 Hence the concept of “triadic dispute resolution”. See Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) 150, who argue that the position of the courts in a democracy can be understood by the nature of the judicial process. 100 This definition is loosely based of that proposed by Fuller. Lon L. Fuller "The forms and limits of adjudication" (1978) 92 Harv LR 353-409 101 It is argued that this grey area is increasing, and that this is an indicator of a paradigm shift towards a more activist model of state intervention.

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ciently strong coercive position, and which can be persuaded to exercise that coercive power following a process that it has devised or sanctioned. The word “court” is normally used to indicate an institution that uses an adjudicative type of dispute resolution, and which is sanctioned by, and often directly related to, a relevant authority. The connection between adjudication and authority has two inter-related aspects. Authority validates and empowers the adjudication process, but at the same time, authority itself is recognised, or legitimised by it. Being able to determine disputes is equivalent to having coercive authority and vice versa.102 As a consequence, the rules and norms that are applied or developed in the court’s adjudication process are in some way of a different nature, warranting special treatment. Generally, we use the word “law” to indicate this system of special rules. The function of adjudication in the courts is therefore the identification of claims and obligations that merit official validation and enforcement. The adjudicative function, almost by default, develops a function of governance. At the same time, if a governing body exists that is capable of declaring a rule to be “law” (by implication or otherwise), that rule will then create entitlements or obligations that can be enforced in the courts, ultimately relying on the coercive force that was necessary to create the adjudicative powers in the first place. To phrase it simplistically: laws are all rules that can be enforced in the courts. Although this may help in distinguishing which rules may be considered to be “law” and hence part of the “legal system”, and which are not, this does explain why the distinction in the genesis of the rules is relevant. The first category (rules are laws because they are enforced) are a confirmation of what is accepted in society as the proper and principled determination of rights in a given situation. This can be seen as a “bottom up” approach, a rule is “recognised” into formality,
102

Authority and adjudication developed together, of Charlemagne it has been said that he ruled by holding court, he was first and foremost the judge of his people. (Harold Berman, J Law and Revolution, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge Mass , London, 1983) 89) “The [early kingdoms] had virtually no central administration, virtually no representatives whatsoever in the localities, emperors and kings carried their government, for the most part, with them, in their imperial or royal households, as they “rode circuit” through their domain.” (ibid at 301). “Well into the sixteenth century, European rulers were imagined primarily as judges or conflict resolvers: that the sovereign power is regulatory or legislative is a comparatively modern idea. (Q. Skinner, The Foundations of modern political thought, (1978) as quoted in Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 189)

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the courts “develop” law. The second category (rules that are enforced because they are laws) works in the reverse direction and is therefore aimed at changing or defining the structure of rights and obligations. In that case, the courts are used as an instrument to enforce law, and therefore policy.

2 Two types of structure of authority
One also needs to look at the character of authority. Two extremes or “ideals” can be described, one with a horizontal character of authority, the “coordinate ideal of authority”, and one with a vertical character, the “hierarchical ideal of authority”. The coordinate ideal is characterised by distribution of authority and the creation of state institutions with comparable powers. Coordinate legal systems typically use lay people and make decisions on substantial merits, without overly legalistic niceties, and relying on the opinion of specialised experts, used on an ad-hoc basis. Laws in such systems address members of society and consist of substantive rules. In the hierarchical ideal authority is concentrated, and exercised through a pyramid of officials that apply rules that are set or sanctioned at the top of the structure. Authority is role related, and lower officials defend their respective place in the system by vigorous adhesion to the fractions of authority entrusted to them. Specialists are contained within the structure, resulting in an apparatus of professional officials. Laws will be directed at officials and consist of procedural rules and policy principles.

C. The role of the state
Two opposing typologies for the role of the state in society are distinguished, the activist and the reactive model. These typologies represent extremes; a state’s involvement in the organisation of society can be placed on a continuum between these extremes. In addition, not all areas of social interaction may attract the same type of state intervention. This paper is primarily concerned with the impact that the typology of a state has on the adjudication of civil disputes in formal, state organised, institutions (courts).

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1 The reactive state
The reactive state plays a “laissez-faire” role and restricts itself to providing the supportive framework within which citizens pursue their own chosen goals. Contract is the prevailing paradigm for social organisation. The state protects order, and hence its main role is dispute resolution. The reactive state lacks transformative power, and is not motivated by a desire to develop policies or interests of its own. The truly reactive state can thereby maintain its neutral dispute resolution role even in conflict between large groups in society. The reactive state provides only those functions that are necessary to maintain order, and to protect the sovereign integrity of the state itself. Where self-regulation and non intervention are paramount, “justice” is ultimately guided by fundamental principles that lie beyond the state’s intervention, and which are typically found in the common usages of the society. This does not mean that promulgated law is impossible; default models of risk allocation are an example of rules that can be used as “building blocks” or “bargaining chips” in assisting the individuals in society to arrange their affairs. In a pure reactive model, rights and obligations cannot be “fundamental”; they are always amenable to contractual arrangement. The reactive state cannot initiate adjudicative action and cannot have an interest in any outcome. Strictly speaking, it cannot even have the interest to promote conciliatory resolution, as any such attempt would be seen as forcing the litigants to give up rights. The only adjudicative role the reactive state has is to provide for a civilised environment in which to decide the battle between opponents. Citizens of the reactive state are thereby motivated to seek settlement and compromise between themselves, as the outcome of battle is always uncertain, and no policy driven sympathies may be expected. The concept of non-intervention and dispute resolution by way of a ‘civilised battle’ leads to an adversarial process, in which strict rules are necessary to protect its integrity. Judicial discretion is used to protect procedural, rather than substantive justice. It may be seen that the reactive state model aligns with the common law system and coordinate structures of authority.

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2 The activist state
The activist state develops a comprehensive theory of “the good social life”, and programs for the material and moral betterment of its citizens. Private enterprise and spontaneous projects between citizens are viewed with suspicion and controlled by regulation that seeks to make them compliant with state policy.103 Society is organised by detailed regulation and government decree. Societal problems and social policy are dissolved into state problems and state policy, the state is always ready to implement the next law to solve another problem. No right or freedom is ‘fundamental’ and beyond state intervention, there is always a broader ideal that warrants qualification or denial of individual entitlements,104 in fact, an individual may not be considered capable of looking after its own interests, as its ideas may have been influenced by incorrect or faulty social practice, warranting re-education.105 Activist law springs from the state, and regulates behaviour, provides norms and standards, and distributes resources. Law directs and instructs officials in their pursuit of state policy and is often not directly aimed at citizens or their respective rights, or is at best ambiguous in its precision. The use of preambles in legislation increases and moves from telling the citizens not what they must do, but how they must think. 106 The activist state can initiate adjudicative action, and is always ready to do so where individual behaviour transgresses the standards that have been set, or even where (by itself non-restricted) behaviour interferes with state policy. Social sta103

104

105

106

Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 186. In that context, the following quote is apt: “…modern man has undergone a mischievous taxidermy; he is stuffed to the bursting point with a dangerous idea. It is the idea that self interestedness is sufficient to keep society’s clockwork ticking over, and that whatever is wrought by this dynamic should be welcomed by progressive people”. ( Gerorge Will, as quoted in James Robert Forcier Judicial excess : the political economy of the American legal system (University Press of America, Lanham, Md., 1994) 242. “…a worse possibility is that litigants whose understanding of their own interests differs from the views of government could be declared incapable of self-representation and be replaced by surrogates whose views are amenable to authority. Managerial concerns of the state could now be run under the guise of conflict resolution.” Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 106. The law in fact says: “If you will participate in our objectives and think as we do about them, then you will know what to do without our having to define your duties to precisely.” Lon L. Fuller Anatomy of the law (F. A. Praeger, New York,, 1968) 90.

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sis may be a cause for concern; there must always be some area of possible improvement and transformation. If no social conflict exists, the cause is sought to be the failure of consenting contract parties to recognise that they are in fact victimised, which calls for education and corrective regulation. In the activist state, the distinction between civil and criminal law is unclear, failure to comply with policy and directives may attract both civil and criminal sanctions, and these different concepts may be mixed and mingled in the one proceeding. Resolution of dispute is aimed at implementing the state’s objectives to the circumstances of the case, and it is well possible that both litigants deserve some corrective attention. The judicial process aimed at implementing policy cannot rely on the way argument and evidence is brought by the parties, or indeed whether disputes are litigated at all.107 The state official hearing the matter needs powers of investigation and inquisition. Rather than being the impartial and aloof arbiter, the judge dominates and directs the procedure. It can be validly argued that dispute resolution in the activist model is not adjudication at all. The judicial officer is no disinterested and unbiased arbiter; he is an instrument of state policy.108 In the activist state the purposes of adjudication and administration converge, the state becomes a judge in its own case. The activist model aligns with civil law systems, and hierarchical structures of authority.

3 Mixed forms of state intervention
Pure examples of activist or reactive states do not exist and a state may exercise different levels of activism in different areas of social intervention. The situation will not be stable and fixed, but it will develop or even oscillate over time. A state may be founded on reactive principles, but consecutive governments can develop a taste for increased intervention and regulation, thereby creating a selfperpetuating structure of state officials bent on continuously finding new areas fit

107

“…citizens may hesitate to submit their disputes to state courts, anticipating that larger policy concerns may overwhelm their narrow controversy.” Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the legal process (Yale University Press, New Haven, 1986) 110.

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for social improvement.109 At some point the state may find it has bitten off more responsibility than it can chew, and the process may be temporarily reversed. It has been argued that the use of rules (“law”) as societal control mechanism has itself an evolutionary character, with a circular morphology.110 Thus a development from customary [tribal] law is followed by a [feudal] phase were customary rules are transposed into positive rules. The next phase is the development of a “liberal” state where rule of law is the binding principle. This phase is followed by a “post liberal” welfare state, where bureaucratic government in fact undermines the “rule of law” ideal. In response to that, new bodies with their own sets of rules develop (such as large organisations), which in fact represents a return to the tribal model.111 In the process however, law has increased in sophistication, and the development is therefore more like an upward spiral than a circle. These developments can take place gradually, as a consequence of societal change or government change following democratic election, or they can take place in the context of significant struggle, as in revolution, civil war, or the breakdown of political structures. They can also take place relatively undetected, as a result of the self-perpetuating character of bureaucratic organisation, or more sinister, as part of a broader plan to structurally change the character of society. This brings in focus the political character of changes in the legal system or the states involvement in the provision of adjudication structures.

108

“ the judge will tolerate party control over procedural action –even party autonomy- merely on sufferance, for if the litigants interaction does not lead to outcomes he approves, he is ready to step in and correct the failure of forensic competition.” Ibid (134). 109 Whereby it has been commented that this development from reactive to activist state is the most common trend. Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) 4. 110 For the argument that “evolution of law” is a misguided concept, see Allan C Hutchinson Evolution and the Common Law (Cambridge University Press, Cambridge, 2005) 111 This represents the theory of Roberto Unger, see Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press, Durham, 1999) 564.

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VI THE COURTS AND POLITICAL OBJECTIVES
As has been seen, common law systems are well-suited for reactive, rather than activist types of state activity, and proceedings aimed at conflict resolution rather than policy implementation. The effect is that common law systems tend to develop adversary proceedings with rules aimed at procedural justice, in coordinate systems of authority. This makes common law litigation relatively expensive and time consuming, which leads to accessibility and efficiency problems, which may deteriorate the social and constitutional function of the courts. Fundamentally there are two approaches to resolve this problem, either improving the efficiency of the court system, or finding alternatives to it. The choice between these different approaches has an important political aspect, which is perhaps not simple to recognize.112 The first will maintain the fundamental principles of the common law system and the political structures to which it is best suited. The developments in England, New South Wales and the UK show that it is possible to improve the efficiency of the courts, and to maintain or enhance their constitutional role and social function. The second approach will fit well with a more activist role of the state in all aspects of social life, as dispute resolution is increasingly placed in the context of policy implementation, or is converted into executive or administrative processes.113 It is thus suggested that the role of the state in civil litigation has in fact a strong political character.114
112

“In all democratic regimes, the judiciary is always related in some way to the political system, and it is impossible to entirely shield the judiciary from political pressure. Because political pressure on the judiciary largely depends on the significance of its decisions, an indirect means of pressure is to limit the judiciary’s authority, for instance by reducing the extent of its jurisdiction. Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) 163. 113 For a theoretical description of the effect of constructing or obstructing adjudicative governance, see Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford University Press, Oxford, 2002) 85-87. 114 As Coquillette put it in 1999: The history of the Western law is at a turning point as sharp and critical as that which marked the French Revolution of 1789, the English Revolution of 1640, and the German Revolution of 1517…[we] have witnessed a turn towards collectivism in the law, towards an emphasis on state and social property, regulation of contractual freedom in

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VII CONCLUSION; COURTS AND THEIR PROPER SOCIAL FUNCTION IN NEW ZEALAND
The proper social function of the courts is to provide a state sanctioned forum to deal with civil disputes, whether those are between individuals or an individual and the state. Part of the courts’ function is inherently of a constitutional and political nature, and increasingly so. A court must have the real authority to conclude proceedings in an independent and unbiased manner, and to enforce its decisions, whether it is against individuals or the state. Diminishing these capacities or making the courts practically unavailable to perform this function will reduce the credibility of the courts as a relevant institution in the constitutional structure.115 Globally, the political role of the courts is increasing:116 The courts –or at least some of them- participate openly in the constitutional and political process by controlling and monitoring the actions of the legislative and executive branches. They have become a third, real branch of government, at least in the sense that they now play an important role in shaping the general direction of society. This paper argues that in New Zealand the development of this political and constitutional role is under pressure, as a result of effectively removing civil disputes from the courts, to be dealt with through mechanisms that allow more control by the other branches of government, which in our system are arguably too merged
the interest of society, expansion of liability for harm caused by entrepreneurial activity, a utilitarian rather than a moral attitude toward crime and many other new basic postulates. These radical changes constitute a severe challenge to traditional Western legal institutions, procedures, values, concepts, rules, and ways of thought. They threaten the objectivity of the law, since they make the state an invisible party to most legal proceedings between individuals or corporate entities –the same state that enacted the applicable law and appointed the court. Daniel R Coquillette The Anglo-American legal heritage (Carolina Academic Press, Durham, 1999) 618-619. 115 Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of courts and democracy (Oxford University Press, Oxford, 2003) at 98, and at 182: “In the post-war period, there is a clear trend towards the expansion of judicial power in democratic regimes. While judicial structures are important as starting point in understanding why some judiciaries are more politically active than others, it is not just structures but political context (historical and contemporary) that ultimately determines the level of judicialization in any country. 116 Héctor Fix Fierro Courts, justice, and efficiency : a socio-legal study of economic rationality in adjudication (Hart, Oxford, 2003) ,15. And see Ran Hirschl Towards Juristocracy, The Origins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge, London, 2004) 1.

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as well. Dispute resolution increasingly becomes policy implementation, while the constitutional foundation and court structure that other modern activist states have is lacking. This is the vulnerability the New Zealand courts have in the exercise of what should be their developing role:117 If the courts exercise such important powers and are the ultimate guarantors of the citizens’ rights, it is only logical that the welfare state also grant the widest possible access to the courts to all individuals and disadvantaged groups in society. State policies aimed at ensuring access are conceived of as contributions to social justice, consistent with the welfare state’s goals. These policies can be summarised under the heading “access to justice”. To support the argument, that he courts’ relevance in New Zealand is diminishing, an empirical comparison with England may be made, as the legal and political systems are comparable. The English courts deal with some 2 million civil procedures each year.118 Based on the relative size of the jurisdictions119 one would expect that New Zealand courts would handle about 140,000 cases a year. In fact that number is between 20,000 and 25,000 and it is declining.120 It would be incorrect to assume that there are less civil disputes in New Zealand, but they do not make it to the courts. It seems they are deflected to other (often executive controlled) forums and to various systems of executive decision making.121 The role of the courts thereby increasingly becomes that of the “virtual safety valve”. No citizen is under the impression that the courts are easily accessible, but, at the moment, apparently remains convinced that the courts can be relied on when really necessary. This paper argues that when the fallacy of that belief will be exposed, the alternative system that is now being constructed will reveal itself in its dominating, and policy implementing glory. This may be what the majority of society desires, or it may be that it escapes attention as the courts and their civil operation are not an issue that gains any interest on the political radar.

117

Héctor Fix Fierro Courts, justice, and efficiency : a socio-legal study of economic rationality in adjudication (Hart, Oxford, 2003) 15). 118 United Kingdom Department for Constitutional Affairs Judicial Statistics Annual Report (2004) 119 Using 2001 census information on population statistics. 120 Ministry of Justice Ministry of Justice, Annual Report 1 July 2004 - 30 June 2005 (2005) 121 The Disputes and Tenancy Tribunals together deal with approximately 45,000 cases Ibid . Statistics for the ACC scheme cannot be validly compared with possible civil litigation claim numbers.

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If the objective is maintaining a common law legal system and the reasonably reactive type of state authority that New Zealand proclaims to have, the courts must be reinstated in their civil dispute resolution role, and thereby in their proper constitutional role.122 The only way to do that is by making the courts accessible. This requires action to resolve the major disadvantages of court adjudication, its costs and cumbersomeness. Modern technological developments can provide all the tools necessary to achieve that, as long as the political will is present to implement such a far reaching strategy. There are ample examples from similar jurisdictions that show how this can be achieved, and New Zealand has, in its limited size, an enormous advantage to realise such changes.

122

Hirschl concludes that judicialization in New Zealand is developing on a more moderate scale than the other jurisdictions investigated, although he considers that much progress has been made. I do not concur with that opinion. Firstly Hirschl restricts his scope to human rights issues, secondly his book was published before the New Zealand legislature enacted s3(2) of the Supreme Court Act 2003. See Ran Hirschl Towards Juristocracy, The Origins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge, London, 2004) 26-27.

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