Socio‐legal Studies in Aotearoa/New Zealand

DOIhttp://doi.org/10.1111/j.1467-6478.2014.00666.x
Published date01 June 2014
Date01 June 2014
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 2, JUNE 2014
ISSN: 0263-323X, pp. 257±82
Socio-legal Studies in Aotearoa/New Zealand
Kim Economides*
This article reviews the development and impact of the socio-legal field
in New Zealand. It begins by assessing the socio-legal presence within
teaching and research conducted across New Zealand's law faculties
before analysing factors likely to inhibit future growth of the sub-
discipline in this remote jurisdiction. Having examined how New
Zealand's legal scholars map and influence national legal behaviour,
without always recognizing contradictions between these objectives or
categorizing their research as `socio-legal', the article goes on to
examine how the next generation of socio-legal researchers might
exert stronger influence over the law curriculum and new areas of
legal policy. In conclusion, it argues for a distinctive New Zealand
approach toward socio-legal studies and notes that future prospects
appear encouraging, and in certain respects more promising than
those in the United Kingdom, particularly when considering research
impact.
INTRODUCTION
At first blush a domestic tradition of `socio-legal studies' in Aotearoa/New
Zealand appears relatively underdeveloped and, beyond the Antipodes,
virtually unknown.
1
Only two New Zealand-based legal scholars, Jane
257
*Flinders Law School, Flinders University, GPO Box 2100, Adelaide SA
5001, Australia.
kim.economides@flinders.edu.au
Based on a public lecture delivered at Otago Law Faculty (see K. Economides,
`Measuring Law's Impact: The Future of Socio-Legal Studies in Aotearoa New Zealand'
(2013) 13 Otago Law Rev. 167). I thank Bridgette Toy-Cronin, Alex McRae, Marie
Callandar, former Otago colleagues , and anonymous reviewers for their help ful
comments and suggestions. All errors remain my responsibility.
1 The `socio-legal' field is contested, broad, and attracts a number of different labels,
definitions, and intellectual traditions. For present purposes I include parallel
scholarly movements that either challenge or complement legal formalism, such as
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Kelsey (Auckland) and Michael Robertson (Otago), have published full-
length articles in the Journal of Law and Society perhaps because, as Jane
Kelsey notes in one of them, `New Zealand universities . . . suffer severe
geographical and intellectual isolation.'
2
Despite this isolation, or perhaps
because of it, New Zealanders have enriched legal scholarship overseas, and
the country has in fact exported a number of eminent `socio-legal' scholars
including Don Harris, the founding Director of the Socio-Legal Centre at
Wolfson College Oxford, established over 40 years ago.
3
Terence Halliday
and Michael Powell, both prominent `law and society' scholars, also departed
New Zealand's shores in the 1970s, eventually to take up fellowships at the
American Bar Foundation in Chicago from where each made significant
contributions to sociological understanding of the professional organization
of lawyers.
4
Several scholars from overseas, travelling in the opposite
direction, have investigated aspects of New Zealand's legal system and in
1990 Auckland's law school almost imported Alan Hunt from London to
take up a new chair in socio-legal studies, though this appointment never
materialized and it was not until 1997 that Jane Kelsey, a New Zealander
258
`sociology of law', `law and society', `interdisciplinary', `contextual', `critical',
`empirical' legal studies within my remit and rely on the Socio-Legal Studies
Association's catholic definition:
Socio-legal studies embraces disciplines and subjects concerned with law as a
social institution, with the social effects of law, legal processes, institutions and
services and with the influence of social, political and economic factors on the law
and legal institutions. Socio-legal research is diverse, covering a range of
theore tical p erspec tives an d a wide va riety of e mpiri cal rese arch and
methodologies.
See, also, definitional discussion of what constitutes a socio-legal `approach' in C.
Hunter (ed.), Integrating Socio-Legal Studies into the Law Curriculum (2012) 2±3.
The M
aori term `Aotearoa' refers to New Zealand, and usually translates as `land of
the long white cloud'.
2 M. Robertson, `Reconceiving Private Property' (1997) 24 J. of Law and Society 465
and J. Kelsey, `Privatizing the Universities' (1998) 25 J. of Law and Society 51, at 68.
3 K. Hawkins (ed.), The Human Face of Law: Essays in Honour of Donald Harris
(1997) 1; D.J. Galligan (ed.), Socio-Legal Studies in Context: The Oxford Centre Past
and Present (1995). See Don Harris's account of socio-legal studies in the United
Kingdom: D.R. Harris, `The development of socio-legal studies in the United
Kingdom' (1983) 3 Legal Studies 315. Harris was also influential in New Zealand,
see D.R. Harris, `The Law of Torts and the Welfare State' [1963] New Zealand Law J.
171. Note also other contributions from New Zealand legal scholars with international
reputations, such as Jeremy Waldron and John Salmond to legal theory, and Peter
Hogg, David Mullen, and Michael Taggart to public law. Benedict Kingsbury (NYU)
and Wade Mansell (Kent) have both made valuable cont ributions to public
international law, and the latter to `critical' tort law.
4 Terence Halliday continues to conduct sociological research on lawyers and remains
with the American Bar Foundation, see
faculty/profile/10/bio.html> ; Michael Powell is currently Pro Vice-Chancellor at
Griffith University: http://www.griffit h.edu.au/office-v ice-chancellor/univ ersity-
executive/professor-michael-powell>.
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described as `indubitably socio-legal', was appointed to a personal chair.
5
Waikato law school, set up in 1990 by Founding Dean Margaret Wilson
explicitly to provide a `professional, bicultural and contextual legal educa-
tion', has since carved out a `socio-legal' niche that has nurtured several
scholars including Nan Seuffert, a qualified American practitioner and past
President of the Law and Society Association of Australia and New Zealand,
who have helped bring contextual and feminist perspectives on law to New
Zealand.
6
More recently, the appointment of British socio-legalists at
Waikato, Victoria's law school in Wellington, and Otago, suggests that
dominant `black-letter' approaches to legal education and scholarship may
be complemented by critical and interdisciplinary approaches that draw upon
global scholarly networks.
7
On closer inspection then, one begins to appreciate that socio-legal
perspectives are not quite so alien to New Zealand and indeed many of the
country's legal scholars, and public opinion more generally, frequently
engage at a practical (if not theoretical) level with the law-society relation-
ship. Legal academics may not overtly classify their scholarship as `socio-
259
5 B. Coote, Learned in the Law The Auckland Law School 1883±2008 (2009) 116, 118.
Foreign scholars such as Paula Baron, the first female law professor at Victoria
University, have either taught or critically examined the relationship between law and
society in New Zealand: see, also, M. Levine `The family group conference in the
New Zealand children, young persons, and their families act of 1989 (CYP&F):
review and evaluation' (2000) 18 Behavioral Sciences & the Law 517; L.C.B. Gower,
`The Academic Lawyers' Contribution to Legal Development' in Auckland Law
School Centenary Lectures, L.C.B. Gower et al. (1983) 7; S. Banner, `Two Properties,
One Land: Law and Space in Nineteenth-Century New Zealand' (1999) 24 Law &
Social Inquiry 807; S. Banner, `Conquest by Contract: Wealth Transfer and Land
Market Structure in Colonial New Zealand' (2000) 34 Law & Society Rev. 47.
6 See M. Wilson, `Legal Education: Jurisprudence or Jobs?' in 1993 New Zealand Law
Conference: The Law and Politics, Vol. 2 (1993) 91; N. Seuffert et al., `Developing
and Teaching an Introduction to Law in Context: Surrogacy and Baby M' (1993) 1
Waikato Law Rev. 27; J. Mackinnon and L. Te Aho, `Delivering a Bicultural Legal
Education: Reflections on Classroom Experiences' (2004) 12 Waikato Law Rev. 62.
See, also, `Justice in the Round', Waikato, April 2011, at
law/news-ev ents/justic e_in_the_r ound>; M. Bedgg ood, `Studyin g the Law in
Context: Exploring an International Dimension of New Zealand Law' (2010) 18
Waikato Law Rev. 53.
7 Although Anna Grear (Waikato) and Kim Economides (Otago) are no longer based in
New Zealand, both have helped connect New Zealand legal scholars with global
interdisciplinary networks. For example, Anna Grear, a founding editor of J. of
Human Rights and the Environment, is also Director of the Global Network for the
Study of Human Rights and the Environment (GNHRE), at ; Kim
Economides, a founder member of the SLSA, and founding editor of Legal Ethics, is
President Elect of the International Association of Legal Ethics (IAOLE), at
www.stanford.edu/group/lawlibrary/cgi-bin/iaole/wordpress/>. Caroline Sawyer is a
well-known socio-legal scholar working in the field of family law: see C. Sawyer,
Rules, Roles and Relationships: the structure and function of child representation
and welfare in family proceedings (1999).
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legal' or habitually use social science research methods, yet, on the other
hand, most eschew esoteric theory or pure doctrinal analysis and, deploying
legal rather than social analysis, regularly comment on the efficacy and
impact of legislation, legal decisions, and institutions on different sectors of
society. Law faculties in New Zealand, with variations between and within
them, may expose law students to a pragmatic empiricism that boils down to
asking two connected `socio-legal' questions: `what is the law?' and `does it
work?' Legal academics do engage in the process of law reform though in
recent times, as elsewhere, research assessment has become a priority and it
appears that pressures to publish mean less attention has been devoted to
making submissions to parliamentary select committees and the Law Com-
mission.
8
Where law does not appear to work effectively, the wider public,
led by the media, will often express concern and may bring about pressure for
reform ± sometimes quite radical ± and in a small jurisdiction like New
Zealand where governments change every three years, regulation is relatively
`light-touch', and where politicians and policy makers are reasonably
accessible and in tune with public opinion, legal change can come about
relatively easily and quickly.
9
In this article I survey the breadth and signific-
ance of an emerging socio-legal field in New Zealand with a view to
suggesting how this perspective might be further developed and strengthened.
My claim is that foreign scholars ± whether nearby in Australasia, or further
afield in North America and Europe ± can both learn from as well as
contribute to New Zealand's emerging socio-legal tradition.
260
8 J. Burrows, `A panel discussion on the interrelationship between the legal academy
and the processes of law reform' (ALTA Conference, Auckland, July 2010). Burrows,
a law commissioner, stated that when public submissions were invited for the Law
Commission's `Alcohol In Our Lives: An Issues Paper On The Reform Of New
Zealand's Liquor Laws', NZLC IP15 (2009), that from 2,939 submissions, there were
none from academics. This was the same for the Law Commission's Review of the
Privacy Act 1993 (2010) and Review of the Statutes Drafting and Compilation Act
1920 (2009): see J. Burrows, `A New Zealand Perspective on Law Reform' (2012) 16
Canterbury Law Rev. 117; G Palmer (ed.), Reflections on the New Zealand Law
Commission: Papers from the Twentieth Anniversary Seminar (2007). See, also, the
Chief Justice's 2010 ALTA address: S. Elias, ```Law, Like Love'': Why ``Guardians
of the Law's Rationality'' Fail to Satisfy' (2010) 14 Canterbury Law Rev. 187, at 195,
citing M. Taggart, `Some Impacts of the PBRF on Legal Education' in Seeing the
World Whole: Essays in Honour of Sir Kenneth Keith, eds. C. Geiringer and D.
Knight (2008) 250.
9 A good example of public opinion influencing law reform is the knee-jerk reaction
removing the defence of provocation in response to the Weatherston case: see
Weatherston v. R[2011] NZSC 105 and commentary at
10/weatherston-v-r-2011-nzsc-105/>. But the idea that New Zealanders are hostile to
public intellectuals ± see, for example, L. Simmons (ed.), Speaking Truth to Power:
Public Intellectuals Rethink New Zealand (2007) ± is now being questioned and the
point made that M
aori public thinkers such as Moana Jackson (see n. 28 below) exist
even if often ignored:
zealand-really-anti-intellectual/>.
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North American observers have noted the problematic and eclectic nature
of the socio-legal field along with some clearly identifiable trends in its
unfinished evolution. As Malcolm Feeley puts it, there are three distinct
voices of ± with separate audiences for ± socio-legal studies: the voices of
policy science, of social science, and a distinctive socio-legal voice yet to be
heard, one based on a nascent discipline awaiting full maturation.
10
Each of
these voices, Feeley argues, offers `a useful way of understanding the
cacophony of voices in socio-legal studies' and, as I hope to show, all are
present in New Zealand. Rick Abel's review of four decades of law and
society scholarship in the Law & Society Review makes a similar point about
the historical evolution of this emerging and contested field, and contains a
fleeting reference to Seuffert's research on race and gender in which she
claims New Zealand males united across racial lines to oppress the
leadership of M
aori women.
11
Perhaps the key challenge for the future of
socio-legal studies in New Zealand lies in finding a clear voice that, while
speaking primarily to a New Zealand audience, should also be heard
overseas, and particularly in the United States which shares a number of
common traits with New Zealand.
12
For this to happen, there needs to be a
much closer relationship with the policy process and other disciplines and,
most importantly, a more rigorous application of theoretical perspectives to
enrich and complement emerging empirical legal research.
Legal education in New Zealand, which continues to prioritize mastery of
rules, in part because of pressure from the legal profession, for the most part
remains isolated from external behavioural perspectives. However, as this
synoptic overview reveals, there is considerable potential to develop a dis-
tinctive voic e for socio-leg al studies, on e that draws upon u nique
Indigenous perspectives on law as well as the fact that the vast majority
of law students are enrolled on double degrees. This review argues that
foreign scholars have as much to learn from, as well as a responsibility to
contribute to, efforts to embed socio-legal studies within mainstream legal
education. In so doing, I argue that the definition of socio-legal studies
could its elf evol ve throu gh absorb ing post colonia l and Indi genous
perspec tives tha t challe nge tradi tional su b-categ ories of so cio-le gal
scholarship. While positivism and pragmatism remain dominant ideologies
that continue to shape New Zealand's legal minds, there are welcome signs
that empirical, critical, and interdisciplinary strands of socio-legal thought
261
10 M. Feeley, `Three Voices of Socio-legal Studies' (2001) 35 Israel Law Rev. 175.
11 R.L. Abel, `Law and Society: Project and Practice' (2010) 6 Annual Rev. of Law and
Social Sci. 1, at 14. N. Seuffert, `Nation as Partnership: Law, ``Race'', and Gender in
Aotearoa New Zealand's Treaty Settlements' (2005) 39 Law & Society Rev. 485.
12 The cultural comparison and contrast between New Zealand and the United States is
examined in a recent book by D.H. Fischer, Freedom and Fairness: A History of Two
Open Societies: New Zealand and the United States (2012). See, also, W. Bradley
Wendel, `Political Culture and the Rule of Law: Comparing the United States and
New Zealand' (2012) 12 Otago Law Rev. 663.
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are beginning to challenge this dominance, and that some novel integration
is taking place across these categories.
TEACHING SOCIO-LEGAL STUDIES IN NEW ZEALAND'S
UNIVERSITIES
Socio-legal studies, from a historical and comparative perspective, com-
monly evolve through the wider application of methodologies developed in
criminological and criminal justice studies designed to collect and analyse
statistics on deviant behaviour. In this way, state-funded research that exerts
influence over government policy seeking to control crime is then extended
to cover legal phenomena and other means of social control.
13
Georgina
Murray's national survey of sociology of law, conducted in the late 1980s as
part of a global enquiry into legal sociology, confirms that New Zealand was
no exception to this trend and provides a useful reference point covering
socio-legal studies between 1970 and 1990.
14
Murray reports that the soci-
ology and law departments at Auckland offered both `sociology of law' and
`law and society' courses since 1980.
15
And since 1982, the sociology
department at Canterbury University had taught a course in `law in society'
exposing students to marxist and critical perspectives on law.
16
But such
courses were clearly exceptions as the overwhelming emphasis of both law
teaching and research in New Zealand's universities was, to use Abel's
distinction, on `law books' rather than `books about law'.
17
In other words a
primary focus of the education and scholarship produced by New Zealand's
law faculties has been based on `internal' as opposed to `external' per-
spectives on legal behaviour. However, as far back as 1964, commentators
were arguing that legal practitioners might benefit from greater exposure to
the social sciences:
Unless one has managed to acquire the balanced, detached, impartial attitude
of mind which is the hall-mark of the scientific observer, one is unlikely to be
able to escape unconscious prejudices . . . The obligation to read some works
of social science is therefore becoming increasingly pressing for the legal
practitioner, who if he understands this task may well find unexpected
rewards.
18
262
13 C.M. Campbell and P. Wiles, `The Study of Law in Society in Britain' (1976) 10 Law
& Society Rev. 547. It is important to note also that the state exerts control over socio-
legal research agendas: see P.A. Thomas (ed.), Socio-Legal Studies (1997) chs. 1±4.
14 G. Murray, `Sociology of Law in New Zealand' in Developing sociology of law. A
world-wide documentary enquiry, ed. V. Ferrari (1990) 571.
15 id., pp. 573±8.
16 id., pp. 578±83.
17 R.L. Abel, `Law Books and Books about Law' (1973) 26 Stanford Law Rev. 175.
18 M. Kirk, `Law and the Social Sciences' [1964] New Zealand Law J. 330. See, also,
Elias, op. cit., n. 8.
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Furthermore, some researchers were arguing for empirical analysis of the
legal services market or for more critical perspectives on colonial influences
shaping New Zealand's legal system.
19
In his history of New Zealand's legal
education, Spiller notes that, as the discipline of law took root inside
universities, so it became more receptive to contextual approaches, but
without ever totally freeing itself from the vocational grip of the legal
professions:
As law faculties have been more firmly integrated into the academic life of
universities, there has been increasing recognition by both staff and students of
the value of non-legal studies and the need to examine law in its broader,
social context. At the same time, the practical, professional face of legal
educati on, tradit ionally t he strong er elemen t, has maint ained a fir m
presence.
20
This can be seen in the way that the legal profession led curriculum reform
with the introduction over a decade ago of legal ethics as a mandatory topic
in undergraduate law degrees.
21
Socio-legal material features with greater frequency in the under-
graduate curriculum than one might imagine: for example, a recent survey
found that `socio-legal' material made an important contribution to student
learning in 27 undergraduate labour law courses taught in law and business
schools across New Zealand and Australia.
22
Regarding interdisciplinary
courses in law and sociology, Murray's 1986 survey provides a valuable
point of reference and was updated in 2011 with the results shown in
Figure 1.
23
While some modest expansion of courses expressly dedicated to exploring
the law-society relationship has occurred, and it would seem probable that
contextual approaches will have infused the core curriculum through text-
books, course texts, and research material questioning the limitations of
traditional doctrinal analysis, there has not been that much visible evidence
of interdisciplinary development or specialization in either `socio-legal'
263
19 P. Davies and R. Ludbrook, `The Gaps in the Existing Legal Services in New
Zealand' [1978] New Zealand Law J. 457; J. Kelsey, `Legal Imperialism and the
Colonization of Aotearoa' in Tauiwi Racism and Ethnicity in New Zealand, eds. P.
Spoonley et al. (1984) 20. See, also, G. Murray, `New Zealand Lawyers From
Colonial GPs to the Servants of Capital, and Developing Sociology of Law' in
Lawyers in Society: The Common Law World, eds. R.L. Abel and P.S.C. Lewis (1988)
ch. 7.
20 P. Spiller, `The History of New Zealand Legal Education: A Study in Ambivalence'
(1993) 4 Legal Education Rev. 223, at 253. See, also, W.J. Hopkins, `Missing The
Point? Law, Functionalism and Legal Education in New Zealand' (2011) 19 Waikato
Law Rev: Taumauri 188.
21 See D. Webb, `Ethics as a Compulsory Element of Qualifying Law Degrees: Some
Modest Expectations' (2002) 4 Legal Ethics 109.
22 See A. Reilly, `Shedding light at the coalface: The use of socio-legal material in
labour law teaching' (2011) 21 Legal Education Rev. 123.
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teaching or research.
24
But to what extent has legal thought, and thought
about law, engaged with modern socio-legal scholarship, particularly empiri-
cal legal studies and then found its way into the undergraduate curriculum?
More importantly, as elsewhere, can such teaching gaps be adequately filled
through expanding the socio-legal research base? According to New Zealand
respondents to the Law in the Real World consultation:
264
Figure 1. Socio-legal studies in New Zealand's system of tertiary
education
23
Locality Education Faciliy Discipline Sociology of Law
1986 2011
Auckland University of Auckland Sociology Yes Yes
Law Yes Yes
AUT Social Science Ð No
Law Ð No
Waikato University of Waikato Sociology No No
Law Ð No
Waikato Tech (now General Studies No Yes
Wintec
Manawatu Massey University Sociology Ð No
Social Work Ð Yes
Wellington Victoria University Sociology No No
Social Policy Ð Yes
Law Ð No
Polytechnic General Studies No No
Christchurch University of Canterbury Sociology Yes No
Law No Yes
Polytechnic Languages and No No
Communication Studies
Dunedin University of Otago Anthropology/Sociology No No
Law No No
Otago Polytechnic Science & community No No
education
23 Information for 1986 is taken from Murray, op. cit., n. 14; information for 2011 has
been taken from course guides available on the internet and information provided by
scholars based at New Zealand's Law Faculties.
24 But see G. Morris, Law Alive: The New Zealand Legal System in Context (2009); P.
Spiller (ed.), Dispute Resolution in New Zealand (2007, 2nd edn.).
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. . . there is little empirical legal research being conducted in New Zealand,
with no uniting body for the field. The culture of black-letter law is seen as
dominant in Law Schools and empirical research is not seen as offering solid
career progression. With a small publishing industry empirical legal research
struggles to compete with text books which offer a safe and continuing market.
The longer timescale required for empirical research is seen as daunting,
especially for young academics, in the `publish-soon-or-perish world of the
modern academy'. `It is so much easier to stay in the law library reading cases
and statutes.' A further issue is the `formidable range of knowledge and skills'
needed for empirical research in law ± skills which are not normally taught
together at undergraduate level in New Zealand. The potential solution of legal
academics working in interdisciplinary research teams (as with the science
model) is hampered by law students being taught to work alone. Suggested
solutions include a shift to North American models of the legal academy and
replication of the styles of research found in the sciences.
25
This somewhat bleak assessment needs qualification with reference to the
wider educational context within which the law curriculum and legal
research are evolving within New Zealand's tertiary education system. First,
double-degree programmes are now prevalent which means that most law
graduates, as in the United States, will have had thorough immersion in
disciplines other than law and therefore posses the capacity, if not the
experience, to analyse law and legal behaviour from both `internal' and
`external' perspectives. Whereas in the United States exposure to other
disciplines occurs sequentially, with law school following a degree course in
another discipline, in New Zealand it is concurrent. The range of intellectual
skills and methods taught undergraduate law students is quite staggering and
although legal education may concentrate on doctrinal legal analysis, par-
ticularly in the core curriculum, it does not follow that law graduates emerge
narrow in outlook or deficient in terms of their contextual awareness.
Second, although `clinical' perspectives tend not to form part of the formal
curriculum neither are they unknown amongst New Zealand's law faculties.
Students frequently are given the opportunity to participate in pro bono
activities such as the work of community law centres and dispense legal
advice under supervision, or they may be involved with summer clerking or
interning at government departments such as the Treasury. Universities have
responded to pressure from both practitioners and students to introduce some
experience of legal practice alongside academic training.
26
Although credit
265
25 H. Genn et al., Law in the Real World: Improving Our Understanding of How Law
Works (2006) 26±7. See, also, M. Adler, Recognising the Problem: Socio-Legal
Research Training in the UK (2007); P. Hillyard, `Law's Empire: Socio-Legal
Empirical Research in the Twentieth-first Century' (2007) 34 J. of Law and Society
266.
26 J. Smillie, `Law at the University' in Occupied Lawfully. Otago District Law Society
1979±2004 ed., J. Sullivan (2006) 56, at 62. See, also, more recent initiatives
establishing clinical legal education at Waikato, which has a Director of Clinical
Legal Education and Competitions (Cheryl Green) and at Canterbury, where a new
Director of Clinical Legal Studies will soon be appointed and pro bono work for law
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will not always be given, students increasingly have the opportunity to gain
experience of negotiation, client interviewing, and advocacy training, in
addition to participating in more traditional mooting competitions, and some
will compete at the international level. Evidence of law students' interest in
non-traditional critical and feminist perspectives, as well as their concern for
law reform, is evident from contributions to the New Zealand Law Students'
Journal while higher degrees in law increasingly include an empirical
dimension, particularly when related to psychology, family law, and health
law. Finally, a more prominent focus on the Treaty of Waitangi and Treaty
jurisprudence in legal system, and some mandatory jurisprudence, courses
has exposed law students to Indigenous perspectives that also challenge
orthodox `black-letter' paradigms.
27
M
aori, Treaty, and decolonization legal
studies all fit neatly within the `socio-legal' and arguably are the most
distinctive and controversial aspect of socio-legal scholarship in New
Zealand.
28
These interdisciplinary studies bring together law, politics, and
history to explain the evolving relationship between Britain and New
Zealand, and how law was adapted to the unique New Zealand environment
through key legislative, and individual, acts. So while `socio-legal' studies as
such may not be so noticeable in New Zealand's universities, it would be
quite wrong to assume they are absent from undergraduate or postgraduate
law teaching. To appreciate the extent to which `the law in action' or `books
about law' impact on legal education in New Zealand, we should examine
how far legal research has engaged with interdisciplinary and critical
perspectives.
266
stud ents is acti vely b eing p romo ted: http ://w ww.n zher ald. co.n z/nz /new s/
article.cfm?c_id=1&objectid=11127232>.
27 B. Coote, Learned in the Law The Auckland Law School 1883±2008 (2009) 119,
citing J. Kelsey, A Question of Honour? Labour and the Treaty 1984±1989 (1990):
Legal academics joined in touting their new insights at conferences, seminars,
lectures and in the media. Almost all spoke from positions of cultural ignorance
which was born not only simply of a lack of exposure but also of an arrogance
which defined the Treaty as a legal issue to which Maori perspectives were
irrelevant.
28 Important socio-legal contributions in these fields have been made by Moana
Jackson, see M. Jackson, The M
aori and the Criminal Justice Sy stem. He
Whaipaanga Hou: A New Perspective, Part 2 (1988). See, also, the contributions
of David Williams who teaches the `Law and Society' course at Auckland, for
example, M
aori Land Legislation Manual (1994/1995); D.V. Williams, `Te Kooti
tango whenua': The Native Land Court 1864±1909 (1999); D.V. Williams, Crown
Policy Affecting M
aori Knowledge Systems and Cultural Practices (2001); D.V.
Williams, Matauranga M
aori and Taonga (2001); D.V. Williams et al. (eds.),
Waitangi Revisited: Perspectives on the Treaty of Waitangi (2005); D.V. Williams, A
Simple Nullity? The Wi Parata Case in New Zealand Law and History (2011); and see
S. Dorsett and L. Godden, `Interpreting Customary Rights Orders under the Foreshore
and Seabed Act: The New Jurisdiction of the M
aori Land Court' (2005) 36 Victoria
University of Wellington Law Rev. 229.
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INTERDISCIPLINARY LEGAL RESEARCH IN NEW ZEALAND'S
UNIVERSITIES
Sociologists of law have identified trends toward `interdisciplinarity' and
`transnationalism' that change the way we conceptualize the law-society
relationship but have also noted there are limits to how far it is possible to
assimilate law into the culture of other disciplines.
29
The possibility, and
indeed utility, of integrating law with other disciplines has produced intense
theoretical debate that has pushed socio-legal thought beyond instrumental
ideas of `law' and `society' toward the exploration of new and emergent
regulatory structures either side of traditional nation-state boundaries.
30
It is
fair to say such debates have yet to be heard in New Zealand's mainstream
legal literature and that this jurisdiction illustrates well the enduring stability
and strength of law as an independent, though by no means intellectually
closed, academic discipline.
31
Despite the relative rarity of theoretical
reflection on the relationship between `law' and `society', empirical and
interdisciplinary investigations have been conducted within and beyond New
Zealand's universities. A Law and Society Association of Australia and New
Zealand (LSAANZ) has been in existence for over 30 years, although the
first time its annual conference met in New Zealand was 2010.
32
In this
section I highlight a selection of this work in order to illustrate, rather than
comprehensively report on, the extent to which `interdisciplinarity' and
`transnationalism' exist in this remote jurisdiction. My aim is to highlight
significant contributions to the field, assessed in terms of impact. Although
Cotterrell notes that `the test of legal sociology's success is not whether it
influences legal practice', I shall indeed focus on the more practical impacts
of (socio-)legal research in New Zealand, in part because original theoretical
contributions to our understanding of the law-society relationship are, at
least for now, far harder to detect.
33
267
29 D. Vick, `Interdisciplinarity and the Discipline of Law' (2004) 31 J. of Law and
Society 163; R. Cotterrell, `Spectres of Transnationalism: Changing Terrains of
Sociology of Law' (2009) 36 J. of Law and Society 481. R. Banakar, Merging Law
and Sociology. Beyond the Dichotomies in Socio-Legal Research (2003). See, also, S.
Fish, `Being Interdisciplinary is So Very Hard to Do' (1989) Profession 15.
30 I. Willock, `Getting on with Sociologists' (1974) 1 Brit. J. of Law and Society 3; C.
Campbell, `Legal Thought and Juristic Values' (1974) 1 Brit. J. of Law and Society
13; R. Cotterrell, `Why Must Legal Ideas Be Interpreted Sociologically?' (1998) 25 J.
of Law and Society 171; D. Nelken, `Blinding Insights? The Limits of a Reflexive
Sociology of Law' (1998) 25 J. of Law and Society 407; R. Cotterrell, `Subverting
Orthodoxy, Making Law Central: A View of Socio-Legal Studies' (2002) 29 J. of
Law and Society 632.
31 G. Samuel, `Interdisciplinarity and the Authority Paradigm: Should Law be Taken
Seriously by Scientists and Social Scientists?' (2009) 36 J. of Law and Society 431.
32 See Law and Society Association of Australia and New Zealand Inc. (LSAANZ), at
.
33 Cotterrell, op. cit., n. 30, p. 486.
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As Murray, a sociologist, observed in her national report, `There is very
little Sociology of Law being produced in New Zealand. The main contribu-
tions to writing on New Zealand and the law are in the field of deviance, not
law and society.'
34
Interestingly, Murray notes that in the 1980s, government
departments and privately funded research centres were producing some
high-quality `primary source research' but that the universities, with a few
notable exceptions, were not leading in the production of this form of
scholarship, no doubt because of limited opportunity to secure research
funding.
35
Criminology, criminal justice, and police studies (linked also to
management studies) are disseminated through a variety of outlets that
include mainstream journals such as the Australian and New Zealand
Journal of Criminology and reports of the Ministry of Social Development.
36
A number of studies have proved quite influential in shaping policy and
eventually led to significant legislative change in the area of penal reform
and criminal justice.
37
High-profile media coverage of trials such as those of
David Bain and Clayton Weatherston as well as routine televising of trials
have also helped keep criminal justice in the public eye.
38
Research that influences legal policy has by no means been confined to
the field of criminal justice and there has been a growing interest in the
contribution of other academic perspectives to policy formation as seen in
various reports emanating from the Institute of Policy Studies (IPS).
39
One
268
34 Murray, op. cit., n. 14, p. 583.
35 id., p. 589.
36 See www.m sd.go vt.nz /abou t-msd -and- our-w ork/p ubli catio ns-re sourc es/
journals-and-magazines/social-policy-journal/by-subject/crime.html>. See, also, the
New Zealand Crime and Safety Survey 2006: P. Mayhew and J. Reilly, Community
Safety Findings from the New Zealand Crime & Safety Survey 2006 (2007); R.
Goddard and S. Jaeger, `Policing in New Zealand: A response to Winfree and
Taylor's ``Rural, small town, and metropolitan police in New Zealand''' (2005) 28
Policing: International J. of Police Strategies & Management 654.
37 See Jackson, op. cit., n. 28 and work of Kylee Quince on M
aori women in prison: K.
Quince, `M
aori and the Criminal Justice System in New Zealand' in The New
Zealand Criminal Justice System, eds. J. Tolmie and W. Brookbanks (2007); C.M.
Roper, Report of the Ministerial Committee of Inquiry into Violence (1987); Penal
Policy Review Committee, Report of the Penal Policy Review Committee (1981);
Law Commission, `Juries in criminal trials: Part One', NZLC PP32 (1998); Law
Commission, `Juries in criminal trials: Part Two',NZLC PP37 (1999).
38
R. Macey-Dare, Advocacy Masterclass ± Retrial of David Bain (2011), at
ssrn.com/abstract=1834563>. For research into televising trials, see S.E. Mize,
`Cameras in the courtroom: will televising trials educate the public or create injustice?'
in Triennial New Zealand Law Conference Papers Vol. 1 (1996) 118; S.E. Mize,
Submission to the Courts Consultative Committee on Televised Trial Coverage (1998).
39 The IPS produces a number of studies of the impact of legal policy: for example, B.
Dugan and P. Gorringe, Fairness and Incentives: Economics and Law Reform (1990);
D. Young, Values as Law: The History and Efficacy of the Resource Management Act
(2001); M. Prebble, With Respect: parliamentarians, officials and judges too (2010);
J. Hodder and J. Foster, The Employment Contracts Act: The Judicial Influence 1991±
1997 (1998).
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of the more influential approaches has been `law and economics' which, as
Sir Ivor Richardson argues, should inform legal development in New
Zealand as a matter of course: `. . . we should not develop laws without
regard to the economic and social implications and we need to understand
how people make decisions if we want to change their behavioural response
to legal change.'
40
Economic analysis of law has numerous other supporters
and from within both academia and legal practice.
41
There is now an
organization (LEANZ) for lawyers, economists, policy advisers, academics,
and students `dedicated to the advancement in New Zealand of the
understanding of law and economics' and similar bodies that unite lawyers
with others interested in competition and regulation.
42
Economic analysis
carried out by the Treasury, as well as national and international observers,
has also informed understanding of the operation of the Accident Com-
pensation Scheme (ACC) prior to and following its introduction in 1972.
43
It
is also applied to studies of competition law and company law, while the
New Zealand Law Society recognizes `law and economics' as a discrete field
in the staging of semi nars for its program me of Continuing Lega l
Education.
44
269
40 I. Richardson, `Law and Economics and Why New Zealand Needs It' (2002) 8 New
Zealand Business Law Q. 151, at 151.
41 S. Guest, `Utilitarianism, Economics and the Common Law' (1984) 5 Otago Law
Rev. 657; G.S. Crespi, `Filling a Gap in New Zealand Legal Education: The
Economic Analysis of Law' (1996) 8 Otago Law Rev. 589.
42 LEANZ, at . See, also, Dugan and Gorringe, op. cit, n.
39; J.N.E. Varuhas, `The Economic Analysis of Law in New Zealand' (2005), at
. Other organizations dedicated to cross-
disciplinary work in the field of competition and regulation involving lawyers,
economists, Ministry of Commerce officials, and others meet regularly at annual
conferences: see New Zealand Institute for the Study of Competition and Regulation,
at and the Competition Law & Policy Institute of New
Zealand, at .
43 The ACC implemented recommendations made in the Royal Commission of Inquiry,
Compensation for Personal Injury in New Zealand (1967) (the Woodhouse report):
see the (2003) 34 Victoria University of Wellington Law Rev. special issue, entitled
Looking Back at Accident Compensation: Finding Lessons for the Future; A.
Sundakov, `Accident compensation law: An economic view' (1987) 21 New Zealand
Economic Papers 57; T.G. Ison, Accident Compensation: A commentary on the New
Zealand scheme (1980); T.G. Ison, `Changes to the accident compensation system:
An international perspective' (1993) 23 Victoria University of Wellington Law Rev.
25. See, also, R. Gaskins, `Regulating Private Law: Socio-Legal Perspectives on the
New Zealand Accident Compensation Scheme' (2009) 17 Torts Law J. 24.
44 M. Brunt, Economic Essays on Australian and New Zealand Competition Law (2003);
M. Gillman, `On New Zealand's Companies Act of 1993: A Law and Economics
Perspective' (1994); K. Vautier, `Supplementary Papers: Economic and the Law: The
Application of Economics in Legal Practice' (1990); M. Trebilcock, Economics and
the Law (1995); J. Mellsop and J. Palmer, New Zealand Law Society Seminar:
Economics and Competition Law (2004).
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As one might expect, another area where legal scholars have engaged with
and influenced policy is family law. Some family law texts have explicitly
rejected the `black-letter' tradition in favour of more `critical' and `inter-
disciplinary' approaches.
45
At the same time, more doctrinal legal scholar-
ship has sought to influence judicial attitudes, for example, in relation to how
best to respond to claims by adult children against the estate of their
deceased parents, which blurs the definitional boundaries of what constitutes
`socio-legal' in New Zealand.
46
The Families Commission has initiated
research examining the impact of law and legal policy on New Zealand's
families, while university-based interdisciplinary research teams have for
some time been contributing to legislative reform, such as Waikato's report
that led to changes in the Domestic Violence Act 1995.
47
Efforts have also
been made to understand how current legislation engages with customary
family practices applied by New Zealand's Indigenous peoples.
48
The Centre
for Research on Children and Families continues to produce empirical
`socio-legal' research that impacts on policy and serves as a forum that
brings together researchers, policy makers, and practitioners interested in
cro ssi ng di sci pli nar y and p rof ess ion al di vid es to e xam ine l ate st
developments in family law.
49
270
45 See M. Henaghan and B. Atkin (eds.), Family Law Policy in New Zealand (2007, 3rd
edn.) vi:
[This book] is not written as a comprehensive black letter text, but as a critical
account of the goals and purposes family law is currently pursuing . . . It is
significant that the editions of this book have not been written solely by lawyers ±
social workers, anthropologists, and paediatricians have also had a hand in the
writing. No single discipline or process of thinking has a right to take control of
something as important as legal policy on the family.
46 N. Peart, `Awards for children under the Family Protection Act' [1995] Butterworths
Family Law J. 224, which led to a more conservative approach by the courts to such
claims, initiated by the Court of Appeal in Williams v. Aucutt [2000] 2 NZLR 479.
47 See R. Busch, N.R. Robertson, and H. Lapsley, Protection from Family Violence: A
study of Protection Orders Under the Domestic Protection Act 1982 (1992). See, also,
R. Ludbrook and L. de Jong, Care of Children in New Zealand: Analysis and Expert
Commentary (2004); J. Tolmie, `Women and the Criminal Justice System' in Criminal
Justice in New Zealand, eds. J. Tolmie and W. Brookbanks (2007); V. Elizabeth, N.
Gavey, and J. Tolmie, `Between a rock and hard place: Resident mothers talk about the
moral dilemmas they face' (2010) 18 Feminist Legal Studies 253.
48 J. Ruru, `Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand'
(2005) 19 International J. of Law, Policy and the Family 327.
49 See N. Taylor, M. Gollop, and M. Henaghan, Relocation Following Parental
Separation: The Welfare and Best Interests of Children (2010), at
cic/ pdfs /Rel oca tion %20R ese arch %20R epo rt.p df>; P . Tapp a nd N. T aylo r,
`Relocation: a problem or a dilemma?' (2008) 6 New Zealand Family Law J. 94.
See, also, N.J. Taylor, A.B. Smith, and P.F. Tapp, Children and family law: The rights
and views of children (2001), that led to changes in s. 6 of the Care of Children Act
2004, and M. Henaghan and S. McLean, Choosing Genes for Future Children:
Regulating Reimplantation Genetic Diagnosis (2006), that led to changes in pre-
implementation genetic diagnosis (PGD).
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Socio-legal and interdisciplinary legal research appears to be supported
by legal scholars, practitioners, and government departments wherever, as
with children, there is a pressing need to understand the predicament of
vulnerable New Zealanders in order to promote effective regulation.
50
John
Dawson (also a visitor at Oxford's socio-legal centre) has explored these
boundaries between law, policy, and practice by participating in several
pioneering studies examining the relationship between law and mental
illness that bring together the disciplines of law, psychiatry, and psychology.
His research is without doubt `socio-legal' as it illuminates the `law in
action', particularly the application of expert testimony in court as well as
the community treatment of those suffering from mental illness.
51
Law and
psychiatry, and not just law and psychology, has emerged in New Zealand
(and Australia) as a distinct sub-discipline, now supported by an inter-
disciplinary journal Psychiatry, Psychology and Law and its own subject
association, while increasing use is made of psychological insights in family
court hearings.
52
Prior to the defence of provocation being removed in 2009,
it was argued that if advocates were to become effectual in sentencing
homicide cases involving provocation, or in cases dealing with supervised
access, then lawyers required far greater insight into the diverse mental
conditions that can produce homicidal or partner violence.
53
Disparities in
271
50 See, for example, the AUT Institute of Public Policy's interdisciplinary study, funded
by the Law Foundation, that the Minister of Justice, Simon Power, acknowledged had
a major influence on best practice guidelines for child witnesses: K. Hanna et al., New
Zealand Criminal Courts: A Review of Practice and Implications for Policy (2010).
51 See J. Dawson, `The New Zealand Approach to Expert Evidence on the Common
Characteristics of Sexually Abused Children' (2001) 8 Psychiatry, Psychology & Law
38; J. Dawson, `Judicial Review of the meaning of ``mental disorder''' (2003) 10
Psychiatry, Psychology & Law 164; A. Gibbs, J. Dawson, and R. Mullen, `Com-
munity Treatment Orders for People with Serious Mental Illness: A New Zealand
Study' (2006) 36 Brit. J. of Social Work 1085; J. Dawson et al., `How mental health
clinicians view community treatment orders: a national New Zealand Survey' (2004)
38 Aust. & New Zealand J. of Psychiatry 836. See, also, the Otago Community
Treatment Order Study funded by the Health Research Council of New Zealand and
the New Zealand Law Foundation, at
otago036667.html>.
52 W. Brookbanks (ed.), Psychiatry and the Law (2007); S. Bell and W. Brookbanks,
Mental Health Law in New Zealand (2005, 2nd edn.); J.P. Boshier, `New Trends in
the Family Court ± How Psychologists can best help children' (2008) 4 Original Law
Rev 48. There is now formal recognition of these developments in a Practice Note ±
Specialist Report Writers, available at with inputs
from the Ministry of Justice, the Family Law section of the New Zealand Law
Society, Psychological Society and College of Clinical Psychologists. M.E. Pipe and
F. Seymour (eds.), Psychology and Family Law: A New Zealand Perspective (1998);
G. Maxwell, F. Seymour, and P. Vincent (eds.), The Practice of Psychology and the
Law: A Handbook (1996). See, also, Australian and New Zealand Association of
Psychiatry, Psychology and Law Inc, at .
53 W. Brookbanks, `Provocation: Psychological Precursors for Loss of Self-Control as a
Mitigatory Claim' (2009) 16 Psychiatry, Psychology & Law 196; R. Pond and M.
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different conceptions of `mental disorder' amongst lawyers and other
professionals, and in mental health legislation itself, are now far better
understood as a result of research that maps these differences.
54
Healthcare law more generally further illustrates the extent to which
interdisciplinary and applied research can flourish in New Zealand. The
medico-legal field contributes directly to legislative policy while bringing
together legal academics, medics, and policy makers into relationships which
no doubt are facilitated by the relative smallness of the population and the
fact that experts often know each other personally.
55
The Cartwright report
on cervical screening, and research by Herbert Green (a central contributor
to this report) led to a number of changes in the way medical treatments and
research are undertaken in New Zealand, including the introduction of the
Health and Disability Commissioner Act 1994, the establishment of the
Health and Disability Office, the Patient Advocacy Service, the Composition
of the Ethics Committee and Medical Disciplinary Tribunal (now Medical
Practitioners Disciplinary Tribunal), and the Code of Patient Rights.
56
The
Cartwright report, the Woodhouse report, and research by Don Harris
together have t ransformed he althcare law in New Zeal and.
57
Legal
academics continue to collaborate with scientists, medical experts, and lay
members on innovative projects and advisory committees that examine, and
initiate, the ambivalent regulatory impacts of emergent technologies.
58
Other cognate disciplines ± such as politics, anthropology, linguistics,
literature, history, and geography ± in New Zealand may be applied in order
to explain the background to legal development, or the impact of law on
272
Morgan, `Protection, manipulation or interference with relationships? Discourse
analysis of New Zealand lawyers' talk about supervised access and partner violence'
(2008) 18 J. of Community & Applied Social Psychology 458.
54 J. Dawson, `Judicial Review of the meaning of ``mental disorder''' (2003) 10 Psy-
chiatry, Psychology & Law 164. See, also, C. Bridge and G.W.K. Bridge, `Civil
commitment: a m ultidiscip linary analys is' (1984) 14 Vi ctoria Univer sity of
Wellington Law Rev. 145; J. Dawson and K. Gledhill (eds.), New Zealand's Mental
Health Act In Practice (2013).
55 See, for example, P.D.G. Skegg and R. Paterson (eds.), Medical Law in New Zealand
(2006): contributors include legal academics, a former Health and Disability
Commissioner and a member of NEAC (national advisory committee on health and
disability support services).
56 S. Cartwright, Report of the Committee of Inquiry into allegations concerning the
treatment of Cervical Cancer at National Women's Hospital and into other related
matters (1988). See J. Manning (ed.), The Cartwright Papers: Essays on the Cervical
Cancer Inquiry 1987±88 (2009).
57 Woodhouse Report, op. cit., n. 43; Harris, op. cit. (1963), n. 3.
58 Advisory Committee on Assisted Reproductive Technology (ACART), at
www.acart.health.govt.nz/>; Ethics Committee on Assisted Reproductive Technology
(ECART), at , and the work of the Centre for Law
and Policy in Emerging Technologies, at
emergingtechnologies>.
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recurring concerns such as the country's colonial past, the predicament of its
Indigenous peoples or the construction of national identity.
59
Interdisciplinary contact and collaboration therefore tends to be supported
not so much by common theoretical interests or overlapping research
methods as by a desire to explain and understand a shared interest in the
behaviour of particular research subjects. The relative underdevelopment of
socio-legal theory, or a social theory of law, no doubt reflects a prevailing
culture of ad hoc pragmatism and the fact that the starting point, and ultimate
goal, for much legal research remains essentially instrumental rather than
reflexive in character.
60
While interdisciplinary collaborations are present, it
is perhaps significant that whenever legal researchers are involved, research
clusters are sustained around thematic priorities, such as the human genome
or regulatory reform, large-scale projects sponsored or initiated by the New
Zealand Law Foundation with a view to educating the wider public about
law or promoting the public interest in relation to legal matters.
61
Other
topics that provide a common focal point for interdisciplinary collaboration
are the Treaty of Waitangi, free-trade agreements, natural resources, and
273
59 See, generally, P.A. Thomas, Legal Frontiers (1996); Banner, op. cit., n. 5; F.M.
Brookfield, Waitangi and Indigenous Rights: Revolution, Law and Legitimation
(1999); R. Joseph, `Re-creating Legal Space for the First Law of Aotearoa-New
Zealand' (2009) 17 Wai Law Rev. 74; J. Tauri, `Family Group Conferencing: A Case-
Study of the Indigenisation of New Zealand's Justice System' (1998) 10 Current
Issues in Criminal Justice 169; J. Stephenson et al. (eds.), Beyond the Scene.
Landscapes and Identity in Aotearoa New Zealand (2010). See, also, Centre for
Research on National Identity (CRNI), at
index.html>; New Zealand Law and Literature/Law and Visual Media Database, at
www.vict oria.ac. nz/lawli t/>, and the L egal Maori P roject at ttp://
www.victoria.ac.nz/law/research/research-projects/legal-maori/default.aspx>.
60 See M. Palmer, `New Zealand's Constitutional Culture' (2007) 22 New Zealand
Universities Law Rev. 565, at 571. See, also, D. Erhos, `Judicial Culture and the
Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New
Zealand' (2009) 34 Law & Social Inquiry 95.
61 The Law Foundation has funded the Human Genome Project, based at Otago
University, Dunedin, at
and the Regulatory Reform Project, based at Victoria University, Wellington, at
p:/ /ww w.v ict ori a.a c.nz /la w/r ese arc h/r ese arc h-pr oje cts /re gul ato ry- refo rm/
default.aspx>. Both are large-scale interdisciplinary ventures that aim to promote the
publi c objec ts of the L aw Fou ndati on ( tp:// www. lawfo undat ion.o rg.n z/
index.php>), which are to:
Provide opportunities for the acquisition and diffusion of legal knowledge and
the consideration and suggestion of amendments to the law; carry out research in
the science of jurisprudence in all its branches for the education and benefit of
the public; disseminate knowledge gained by such research for the education of
legal practitioners, students of law, and all other persons and organisations
concerned with the application, administration, development or improvement of
the law; and protect and promote the interests of the public in relation to legal
matters.
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environmental protection.
62
That said, it is also true that interdisciplinary
associations have grown out of academic conferences that regularly bring
together scholars from New Zealand and Australia wishing to examine law
from different scholarly perspectives purely for its own sake, rather than
providing a meeting ground for practitioners, policy makers, and legal
scholars intent on improving society.
63
Socio-legal research that impacts on policy therefore has established a
firm foothold in New Zealand's universities but academics are by no means
its sole producers: judges, legal practitioners, public/civil servants and
independent researchers ± particularly those working in or for the Ministry of
Justice or the Law Commission ± regularly publish monographs, articles, and
reports that examine the practical operation of the legal system. It is worth
noting that much of this research, which could be labelled `socio-legal' for it
displays an evidence-based reformist outlook, also draws upon a range of
analytical techniques, that may be derived from legal theory through to
sophisticated regression modelling more commonly applied in social and
statistical analysis.
64
To the extent that socio-legal research exists in New
Zealand, whether or not carried out in a university setting, it will typically
serve one of two broad aims: either it paves the way for, or monitors the
impact of, legislative and procedural reform directed at delivering better
regulation on behalf of vulnerable or disadvantaged interest groups, and
greater efficiency for the wider public who use courts and tribunals.
274
62 M.S.R. Palmer, The Treaty of Waitangi in New Zealand's Law and Constitution
(2008); J. Hayward and N. Wheen (eds.), The Waitangi Tribunal: Te Roopu
Whakamana I te Tiriti o Waitangi (2004); see, also, E. Durie, `Indigenous Peoples'
Rights Politics and Treaty Law' in 1993 New Zealand Law Conference: The Law and
Politics, Vol. 2 (1993) 75; J. Kelsey (ed.), No Ordinary Deal: Unmasking the Trans-
Pacific Free Trade Agreement (2010); Otago Natural Resources Law project:
www.otago.ac.nz/law/research/otago036622.html>.
63 Australian and New Zealand Law and History Society (ANZLHS) at
www.waikato.ac.nz/law/anzlhs/>; Law and Society Association of Australia and New
Zealand Inc. (LSAANZ), at ; Australian and New Zealand
Legal Ethics Colloquium (ANZLEC), a t esearch/
legalissues/otago036754.html>.
64 See G. Hammond, Judicial Recusal: Principles, Process and Problems (2009); E.
Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and
Principles (2005); M. Chen, `New Zealand's Ombudsmen Legislation: The Need for
Amendments after Almost 50 Years' (2010) 41 Victoria University of Wellington Law
Rev. 723; F. Sutton and H. Barwick, Analysing trends in jury trial length: a scoping
study (2000); F. Sutton, A statistical model of the duration of jury trials for calendar
years 1999 and 2000 (2001). A District Court judge recently completed doctoral
research at Otago University on a socio-legal topic: S. O'Driscoll, `Conduct of
counsel causing or contributing to a miscarriage of justice' (2009), see
www .od t. co. nz /on -ca mp us/ un ive rsi ty -ot ag o/5 632 7/ jud ge0 39 s-p hd -la w-r ar e-
achievement>.
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THE DEVELOPMENT OF SOCIO-LEGAL STUDIES IN NEW
ZEALAND
The above overview demonstrates that socio-legal studies, whether possess-
ing an empirical or interdisciplinary component, has established a presence
in New Zealand that extends beyond academia. The New Zealand Law
Foundation, which supports public and professional legal education as well
as the work of New Zealand's law faculties, plays a pivotal role in sup-
porting research on the practical operation of law and remains the principal,
and, practically speaking, only independent source of external funding
outside government for both pump-priming and large-scale legal research
projects.
65
It also sponsors visits by distinguished foreign scholars that
benefit the New Zealand public while enriching the academy.
66
Government
departments responsible for policy on justice or employment may also
commission socio-legal research.
67
The Ministry of Justice (MoJ), especially
its Strategic Policy Unit, invests in quantitative research though, up until
now, this has been carried out primarily `in-house' or by private consultants
rather than by university-based researchers.
68
That is partly because, to date,
monitoring the operation of the legal system, particularly regarding civil
justice and legal services has received scant attention from law faculties.
69
Other fields of inquiry have received more attention from New Zealand's
legal academics who, it has been noted `. . . find it much easier to get
involved (and at an earlier stage in their careers) in law reform activities and
in giving legal and policy advice to government and non-governmental
organisations', but how one assesses the impact of academic commentary
amongst diverse and overlapping audiences remains problematic.
70
A funda-
mental dilemma confronting socio-legal researchers, and not only in New
275
65 Law Foundation, op. cit., n. 61.
66 The Foundation's 2009 Distinguished Visiting Fellow was Dame Hazel Genn, the
United Kingdom's first Professor of Socio-Legal Studies who is a regular visitor to
New Zealand, appearing on national radio to discuss the reform of the legal system.
67 See, for example, the MoJ Court User Survey, `Understanding our Court Users'
(2010), conducted by Colmar Brunton, at
global-publications/c/court-user-survey-2010/publication>. Compare S. Righarts and
M. Henaghan, `Public Perceptions of the New Zealand Court System: An Empirical
Approach to Law Reform' (2010) 12 Otago Law Rev. 329.
68 For example, Sutton, op. cit., n. 64; K. Economides, `Reforming Legal Aid' [2010]
New Zealand Law J. 5.
69 The University of Otago Legal Issues Centre aims to fill this gap by discovering new
facts about legal behaviour while exploring basic principles and objectives that could,
or should, govern the civil justice system: see
legalissues/otago036729.html>.
70 Taggart, op. cit., n. 8, pp. 252, 256, citing B. McDowell, `The Audiences of Legal
Scholarship' (1990) 40 J. of Legal Education 261; E. Chemerinsky and C. Fisk, `In
Defense of the Big Tent: The Importance of Recognizing the Many Audiences for
Legal Scholarship' (1999) 34 Tulsa Law J. 667.
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Zealand, is whether and how best to identify, then engage with, key
audiences. And what exactly is the main objective: to influence policy or
advance the discipline? By concentrating on the former, have researchers
neglected or retarded the latter by tying socio-legal research too closely to
narrow questions that begin and end with practitioners', or policy makers',
definitions of what constitutes a research priority? I wish to argue that both
audiences matter, and that while we need to record and recognize the
contribution of socio-legal research to policy formation and law reform, this
contribution will remain deficient for so long as socio-legal teaching and
research remains marginal in New Zealand's universities. Paradoxically, if
socio-legal researchers could connect better with broader critical theories
and social science methods ± and with more diverse and newer audiences ±
they could exert even greater impact on policy while contributing to the
advancement of socio-legal studies as a sub-discipline, including at the
international level. But how might such objectives be realized?
Following Hillyard's perceptive if pessimistic analysis of the underlying
obstacles to the growth of socio-legal studies in the United Kingdom, I wish
to advocate change at two levels that I believe ultimately could achieve
greater success in New Zealand, even though the United Kingdom may
appear much further ahead in establishing socio-legal studies as part of
mainstream legal education and scholarship.
71
Hillyard identifies two
barriers to future growth and argues that in the United Kingdom, a `critical
mass of socio-legal research' probably will not develop; first, because exist-
ing legal scholarship is entrenched, and its ontological and epistemological
assumptions are unlikely to change; and second, that the political economy
of higher education is fundamentally altering following the `commodi-
fication and privatization of knowledge', a consequence of managerialist and
neoliberal tendencies prevalent in legal education almost everywhere over
the past two decades that, in the Antipode s, have been thoroughly
documented and analysed by Jane Kelsey and Margaret Thornton.
72
Both obstacles identified by Hillyard are present in New Zealand but,
because different educational structures are in place, I would venture to be
more optimis tic about the p rospects fo r challengin g and ultimat ely
overcoming them. As regards shifting established paradigms of traditional
legal scholarship, New Zealand clearly shares entrenched orthodox positions
276
71 Hillyard, op. cit, n. 25, pp. 274±9.
72 id., See, also, P. Hillyard and J. Sim, `The Political Economy of Socio-Legal
Research' in Thomas, op. cit., n. 13, pp. 45±75. Kelsey, op. cit., n. 2; J. Kelsey,
Rolling Back the State: Privatisation of Power in Aotearoa/New Zealand (1993); M.
Thornton, Privatising the Public University. The Case of Law (2012). For more
general critiques of the neoliberal framework within which New Zealand's univer-
sities operate, see J. Codd, `Contractualism, contestability and choice: capturing the
language of educational reform in New Zealand' in Marketing Education: Some
Critical Issues, ed. J. Kenway (1995) 101±16; N. Tarling and W. Malcolm, Crisis of
Identity? The Mission and Management of Universities in New Zealand (2007).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
and, as the Law in the Real World report confirms, `The culture of black-
letter law is seen as dominant in [New Zealand's] Law Schools . ..'.
73
While
true, the fact remains that double-degrees are prevalent which suggests
considerable untapped potential for further `socio-legal' development in
New Zealand.
74
The vast majority of law students in the United Kingdom
enrol on qualifying law degrees, typically the single honours LLB, with only
a minority taking mixed, flexible or combined honours degrees that permit
some exposure to disciplines other than law. By contrast, in New Zealand
(and Australia) most law students are enrolled on double degrees that
provide more than a `taste' of other disciplines; they actually ground law
students in a wide range of other academic disciplines so that by the time of
graduation they can think not only `like a lawyer' but are skilled in, rather
than knowledgeable about, other disciplinary perspectives associated with
the sciences and humanities. At present it is largely fortuitous whether
students who, for example, study both law and psychology will make con-
nections across these disciplines and it seems probable that, in the absence of
institutional encouragement and reward, most `compartmentalize' their
studies. However, with relatively modest investment in interdisciplinary
modules to act as `bridges' spanning disciplinary divides, not only could the
full potential of the double degree be realized but, more importantly,
stronger foundations could be laid for the research skills and working
collaborations needed for socio-legal projects in higher degrees and beyond.
Ontological and epistemological assumptions would automatically be chal-
lenged, if not chan ged, through promo ting more overt and e xplicit
con nec tio ns a cro ss di sci pl ina ry bo un dar ies w ith in d oub le- deg re e
programmes that have a legal component.
As regards the argument that the changing political economy of higher
education is shrinking socio-legal capacity I would predict that in New
Zealand demand for reliabl e, independent empirica l research on the
operation of the legal system that informs and guides evidence-based legal
policy, both in the public and private sectors, will gather momentum and
ultimately lead to further investment despite funding blockages that could
arise in the short to medium term. With a willingness to make relatively
minor adjustments to established practices, university law schools could
prepare themselves to meet this increased demand, and without com-
promising core academic values. Jane Kelsey has identified distortions and
risks flowing from the neoliberal privatization of knowledge in a small and
vulnerable jurisdiction, and other market pressures can be expected, but by
277
73 Genn et al., op. cit., n. 25.
74 `Law and . ..' courses do exist in New Zealand though these may still be taught within
a `black-letter' tradition. For example, Otago Law Faculty currently offers options in
Law and the Democratic Process, Law and Medicine, Law and Psychiatry, Law and
Indigenous Peoples, Law and Society, and Law and Religion. Criminology, Law and
Economics, Media Law, and Gender and the Law have been offered in the past.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
embedding research ethics in the culture of law schools and making stronger
connections with international analyses and counter-strategies, such dangers
may be reduced or averted.
75
But will this happen?
The immediate challenge for those wishing to see empirical socio-legal
studies prosper in New Zealand is to overcome obstacles that would appear
to restrict research investment, assessment, and impact. First, with no new
injection of funds for the New Zealand Law Foundation on the horizon,
support from this vital institution seems set to shrink and could eventually
vanish. It therefore becomes essential to find new ways to protect, if not
increase, the existing funding base for research so that a new generation of
socio-legal researchers can be nurtured and supported. Funding sources for
socio-legal research, even if they do not evaporate entirely, look set to
become increasingly scarce or more diverse, with the risk of more strings
attached to research agendas and commercial or state pressure applied to the
control of publication. Perhaps the biggest challenge, then, is to defend and
maintain an independent research base.
76
To help prepare for and counteract this danger of external interference and
control, university research training might alert researchers to their ethical
responsibilities, particularly when working in the policy and commercial
arenas.
77
And it is not only producers but also the sponsors and consumers of
socio-legal research that all need to be made aware of the ethical dimension
to the socio-legal enterprise.
78
In this context, it is worth noting that
universities established in New Zealand are expected to engage in public
discourse and, perhaps uniquely amongst advanced democracies, are now
under a statutory rather than moral obligation to accept as part of their
defining role the responsibility to act `. . . as critic and conscience of
society'.
79
Similarly, New Zealand lawyers have, since 2008, been under a
statutory duty to `uphold the rule of law and to facilitate the administration
of justice'.
80
Such public duties enshrined in statute could, if taken seriously,
propel both academic and practising branches of the legal profession to the
defence of socio-legal territory while encouraging engagement, if not
278
75 Kelsey, op. cit., n. 2, pp. 66±9.
76 See critical analysis by J. Downie, `The Power of Money: Commercialisation of
Research Conducted in Public Institutions' (2006) 11 Otago Law Rev. 305.
77 The pioneering work of the SLSA in promoting ethical awareness of and amongst
socio-legal researchers provides a useful point of departure for the next generation of
socio-legal researchers in New Zealand: see
247/270/>. See, also, A. Sarat and S. Silbey, `The Pull of the Policy Audience' (1988)
10 Law & Policy 97.
78 On the tension between the ethical and scientific dimensions of socio-legal research,
see K. Economides, `The Road to Justice Revisited: Current Trends in Professional
Legal Ethics' (2006) 27 Recht der Werkelijkheid 3, at 16±18.
79 s. 162(4)(a)(v) Education Act 1989.
80 s. 4(a) Lawyers and Conveyancers' Act 2006.
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collaboration, in evidence-based law reform activity directed at ameliorating
the justice system.
81
Another important challenge concerns the assessment of research quality
that needs to be fine-tuned to better accommodate diverse and emergent
forms of legal research. Socio-legal research, particularly in its empirical
manifestations, frequently is a collaborative exercise that absorbs time and
resources differently from more traditional doctrinal research based in the
law library; when evaluating either research quality or its impact, the present
Performance-Based Research Fund (PBRF)
82
regime needs to recognize this
pluralism that characterizes modern legal scholarship. A third key challenge
to be tackled concerns `policy implementation': quality research may well
produce promising ideas for legislative reform but frequently these are not
implemented because the prevailing political culture is so adept at absorbing
rule change, but without actually changing on the ground. For example, a
decade ago the Law Commission produced an excellent critique of New
Zealand's court system in a splendid report entitled Delivering Justice for
All.
83
The report drew upon foreign research and experience before
proposing a coherent reform package that included assessment of economic
impact, and put first citizens, rather than interests of the legal profession. The
report's proposals have yet to be implemented. The idea of social change
through courts, test-case strategy supporting `public interest litigation' or
`social advocacy' has yet to be established and would be likely to attract
resistance in New Zealand, a unitary state in which the focal point for law
reform remains the political rather than legal process.
84
Socio-legal research
has an important role to play in predicting and planning legal developments
that have yet to surface within the policy arena.
CONCLUSION
A central theme of this review has been that, in New Zealand, socio-legal
and interdisciplinary studies have established a stronger presence than is
279
81 The New Zealand Justice Forum has been established to facilitate and co-ordinate
rese arch an d ref orm eff orts t arge ted at t he jus tice s yste m: see http ://
www.otago.ac.nz/law/research/legalissues/otago036732.html>.
82 New Zealand's research assessment exercise, the equivalent of the United Kingdom's
REF and Austr alia's ERA: s ee /www.tec. govt.nz/F unding/Fun d-finder /
Performance-Based-Research-Fund-PBRF-/>.
83 Law Commission, Delivering Justice to all: A vision for New Zealand Courts and
Tribunals (2004). Reasons why are discussed in MoJ, Government Response to Law
Commission Report on Delivering Justice for All (2004).
84 For contrasting views on the optimal scope of adjudication in New Zealand, see
J.N.E. Varuhas, `Courts in the Service of Democracy: Why Courts Should Have a
Constitutional (But Not Supreme) Role in Westminster Legal Systems' [2009] New
Zealand Law Rev. 481; J. Smillie, `Who Wants Juristocracy?' (2006) 11 Otago Law
Rev. 183.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
often appreciated either within or outside this geographically remote juris-
diction. The fact that most New Zealand law students do double degrees,
usually in combination with arts or commerce, but also science, means that
both intellectual flexibility and capacity are being developed through
studying a wide range of elective subjects beyond the core curriculum. As a
result, law students in New Zealand graduate with transferable analytical
skills that prepare them well for a range of careers outside traditional private
legal practice that may include public service or business. These skills are,
moreover, highly relevant to the development of research on and about the
legal system.
From this base it should be possible to further develop research outputs of
both national and international significance but, in order for this to happen,
legal research needs not only to have an empirical dimension; a more
profound and sustained interaction with both theoretical and interdisciplinary
developments is essential if this potential is to be fully realized. To date,
New Zealand's socio-legal studies have not seriously engaged with the
sociology of law or social science more generally, largely because `mono-
technic' approaches within academic disciplines remain prevalent, in part
because of the indirect influence of research audits. The key challenges for
the future will be to build stronger interdisciplinary bridges to support
sustained research into the underlying causes of legal behaviour and to guide
both policy and theoretical development that can assist bodies such as the
Law Commission, the legal professions, and government departments. As
Law Commissioner John Burrows has noted,
In New Zealand we have had our share of judges and practitioners, but the
links with academe have been rather less . . . For much of its life the New
Zealand Commission has had no one with active and continuing links with a
university . . . I think it would be good to have greater institutional links
between the Commission and the university system.
85
Communication also needs to be improved amongst other key stakeholders
in the justice system.
86
This will require investment of both intellectual and
material resources and, furthermore, incentives to encourage more evidence-
based policy making in the legal field. Maintaining, if not increasing,
existing levels of financial support for the New Zealand Law Foundation is
an obvious first step, but universities themselves might do more to invest in
and encourage interdisciplinary research, for example, through promoting
thematic research clusters focused on major societal challenges that confront
New Zealand and exploring ways in which double degrees could be adapted
to develop empirical and other research skills as standard graduate attributes.
280
85 Burrows, op. cit. (2012), n. 8.
86 See, for example, efforts to focus the reform and research effort on the civil justice
system through the work of the New Zealand Justice Forum, op. cit., n. 81.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
The time has come to wave the socio-legal banner in New Zealand and for
its universities to question if not remove disciplinary boundary stones that
obstruct collaborative thought and dialogue on pressing contemporary
questions such as New Zealand's political future as an independent nation,
particularly in relation to sovereignty, democracy, and Indigenous self-
representation. While law faculties might do more to promote contextual and
socio-legal teaching and research, it is also vital that those based in dis-
ciplines outside law, such as psychology, economics, sociology, geography,
history, and anthropology, begin to investigate legal phenomena and
behaviour within New Zealand, either independently or in collaboration
with legal scholars.
87
New Zealand may be behind other countries when it
comes to socio-legal output and innovation, but it is not that far behind and it
could very quickly catch up if not overtake many other places, given that
double degrees are standard. However, this potential is unlikely to be fully
realized if there continues to be a fear of engaging seriously with the social
and behavioural sciences and social theory and of disturbing a close, perhaps
too cosy, relationship with the legal professions.
Policy makers and the legal professions could help considerably by
sharing data and research questions, by funding or demanding more
empirical research, and not seeing university law schools purely in terms of
providing fodder for private law firms, industry or government. And
university researchers in both law and the social sciences need to collaborate
far more than they have in the past, to create more ambitious research
agendas that address pressing challenges confronting diverse elements in
New Zealand's society and, in so doing, to meet their unique `critic and
conscience' mandate. International scholars also have a contribution to make
to, and much to learn from, socio-legal developments in New Zealand.
Perhaps the primary challenge for the future will be to map and explore
New Zealand's `living law' through creating a deeper understanding of law,
culture, and social change as experienced by New Zealand's Indigenous,
immigrant, and p
akeh
acommunities. New Zealand's legal culture could well
explain rapid changes in legal behaviour and the impact of law, but it should
not be forgotten that at present this country's postcolonial legal culture has
itself yet to be adequately explained and understood. While original critiques
of neoliberalism continue to be produced by established socio-legalists in
New Zealand,
88
even more encouraging is the emergence of `green shoots'
surfacing in the form of Indigenous and other socio-legal researchers
producing sophisticated qualitative research, sensitive to theory, method, and
281
87 See, for example, K. Economides et al., `Are Courts Slow? Exposing and Measuring
the Invi sible De termi nants of C ase Disp ositi on Time' ( 2013), a t //
www.business.otago.ac.nz/ECON/research/discussionpapers/DP_1317.pdf>.
88 See M. Robertson, `Property and privatisation in RoboCop' (2009) 4 International J.
of Law in Context 217±35; Kelsey, op. cit., n. 2.
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place.
89
Such scholars deserve to be nurtured both within and beyond New
Zealand, and we would all do well to acknowledge the process of continual
renewal captured by the M
aori proverb describing one of the country's better
known emblems: Ka mate he tete, ka tupu he tete.
90
282
89 See the research currently produced by Jacinta Ruru drawing on both geographical
and Indigenous perspectives: J. Ruru, `M
aori and the courts' in Old Problems, New
Solutions: Integrative research supporting natural resource governance, eds. S.
Russell et al. (2011) 22±9; J. Ruru, `Property rights and M
aori: A right to own a
river?' in Water Rights and Sustainability, eds. K. Bosselmann and V. Tava (2011)
51±75; J. Ruru, `The political and juridical battle in the salt-sand environment' in
Making our place: Exploring land-use tensions in Aotearoa New Zealand, eds. J.
Ruru et al. (2011) 23±38; and J. Ruru, `A cloaked landscape: Legal devices in Mount
Aspiring National Park' in Stephenson et al., op. cit., n. 59. See, also, Bridgette Toy-
Cronin, funded by the New Zealand Law Foundation, whose research applies
ethnographic and comparative methods to examine policy and practice regarding the
management of self-represented litigants, at .
90 `As one frond dies, another grows in its place.'
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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