In the 50s and 60s, two eminent jurists by the names of Hart and Fuller debated what makes a legal system. Nazi Germany was their real-world example.
Hart was a positivist* – he said a legal system is a legal system if people call it one and act like it (if people call it a duck, it’s a duck). Hart said that the Nazis had a legal system – one that made evil laws – but a legal system nonetheless and, so, people’s actions in accordance with it were legal, even if immoral.
Fuller, a natural law jurist, said you need the rule of law (amongst other things) to have a legal system. Otherwise, you’ve just got a bunch of bullies doing what they want and saying its OK. Fuller said that the Nazi’s didn’t have a legal system because they had immoral ‘laws’, secret ‘laws’, retrospective ‘laws’, because citizens were denied the right to challenge the exercise of powers purported granted under the law in court, and because State officials were not in practice bound to the ‘law’ at any rate. Put it another way, Fuller argued, people were not morally bound to adhere to the exercise of arbitrary power.
We follow Fuller’s model more than Hart’s – they prosecuted Nazi war criminals for breaches of human rights and, in doing so, denied the defence that they were just obeying orders that were legal under the Nazi government from duly empowered superiors.
Do we have the rule of law in New Zealand?
Of course, I’m not saying we have a situation like Nazi Germany (it’s only in this post because it was the subject of the Hart-Fuller debate).
But is our system of rules and government meeting the test to be considered a moral system of law? Or is it just bullies doing what they want? Is our State exercising arbitrary power?
This is not a comprehensive list. It’s just the stuff that’s been in the news in the last few days.
The last ones are particularly disturbing. It’s clear that the State’s security apparatus is not subject to the law of New Zealand. The law can be ignored with impunity. The watchdogs and the foxes of the State will act in cooperation to ensure the foxes do whatever they want. And, if the violations become publicly embarrassing, the government will just amend the law.
But it is the wide and unchallengeable powers being given to ministers that are, arguably, more of a threat to more New Zealanders.
The question is, what’s next? How much further will this government extend the arbitrary power of the State?
*(that’s short-hand for unimaginative literalist with a tad of the authoritarian thrown in)
Update: The Herald’s take: