BERRY ZONDAG

“THE STATE’S ROLE IN PROVIDING COURTS TO ADJUDICATE CIVIL DISPUTES:

A JURISPRUDENTIAL PERSPECTIVE.

AUGUST 2006
 TABLE OF CONTENTS
I Introduction ............................................................................................................................... 3
II 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

2
 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 per-
haps 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 con-
text. 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 con-
temporary 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 con-
stitutional role is underdeveloped, and is being restricted rather than increased.

1
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 Univer-
sity 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-

3
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 po-
litical power, and that this discrepancy underlies the philosophy that in a democ-
ratic 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 undesir-
able attitude towards the function of the courts in civil litigation, and that an em-
phasis on improving the courts’ process, and widening its reach would be prefer-
able 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 Con-
sequences 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))

4
 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 nar-
row) 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 sys-
tem. There law develops through the courts, by judicial decision making in spe-
cific fact situations that gains application to comparable situations. A fundamen-
tal 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 ar-

3
An example of a set of questions by which existence and character of a legal system can be ana-
lysed 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 sys-
tem.
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)

5
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 regu-
late and manage society,8 rather than to describe or structure what is already pre-
sent, 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 reac-
tive; 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 in-
strumental and pragmatic, but does not comprehensively describe a social func-
tion, 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 en-
richment of rules, or the resolution of dispute “coute que coute”,9 but in the exer-
cise 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 indi-
vidual 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

7
This is not necessarily a government task at all, as the development of law report series shows.
8
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.

6
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 re-
solve 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 func-
tioning 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 descrip-
tion 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 This avoids the use of primitive means of conflict resolution,

10
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 pro-
vides a societal model in which the “myth” of neutrality and independence of the third party

7
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 ef-
fectively 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 oc-
cur 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 Judicialisa-
tion (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.

8
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 princi-
ples) 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 applica-
tion and development. In that sense, the law forms an abstract description (a
“mirror image”) of society, showing its structural organisation of rights and re-
sponsibilities.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 so-
ciety 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.

18
Roscoe Pound Interpretations of legal history (Harvard University Press, Cambridge, 1923) 1.
19
The metaphor of a mirror is apt in that context, and it is interesting to note that the earliest writ-
ten 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.

9
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 pre-
pared 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 in-
volve in critical assessment of legislation, the operation of the administrative ap-
paratus, and even in supra national considerations.22 It is suggested that this con-
stitutional 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 will-
ingness to determine cases that would traditionally have been considered outside
of the courts’ practical reach.23 In other words, judicial activism is an implied re-
quirement 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, neighbour-
hood, 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 govern-
ment, 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 sys-
tem 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 Uni-
versity 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 deter-
mination. 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 recog-
nises (in 1942!) the increasing influence of formal institutions. Roscoe Pound Social control
through law (Yale University Press, New Haven, 1942) 22-27.

10
the fiction of the legal system upheld by way of ‘window-dressing’, while in real-
ity an entirely different system of societal organisation operates? Obviously, the
differences between the courts’ social function in theory and its practical applica-
tion 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 func-
tions,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 ac-
tually used for their alleged “backstop” function. As an example, the criterion
“constitutional position” may complied with in theory, but this is rendered mean-
ingless if the courts make increasing use of “public policy arguments” or “flood-
gate arguments” to decide issues between individuals and state institutions,29 es-

26
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 obedi-
ence 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.

11
pecially where these institutions are increasingly “dressed up” in corporate struc-
tures 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 func-
tion, 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 re-
form 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 citi-
zens, and on exactly where and how the state plays a role in every aspect of soci-
ety. 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 con-
cerned 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 ana-
lyse 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 ques-
tion with what other government expenses a court system may be validly com-
pared. 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-

30
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 execu-
tive 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 ex-
plained by the relative effectiveness of legal systems in reducing the cost of exchange be-

12
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 ar-
gued 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 re-
taining 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 consen-
sual processes.34 The public utility is therefore to support consensual methods of
social organization, and to resolve disputes where that is not possible by consen-

tween 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 resolu-
tion 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)

13
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 au-

thority.
The courts in their traditional role (in our system) have only one method of dis-
pute 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-

35
Whereby it must be noted that preference for amicable resolution over litigation is not a con-
temporary issue, a manual called Laws of Henry the First (written in the early twelfth cen-
tury) 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, Cam-
bridge 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 adver-
sarial 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.

14
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 im-
plementation of the courts’ constitutional position. Although that is conceptually
very clear (constitutional independency from legislature and executive), in prac-
tice 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 auton-
omy. 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 me-
dieval 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

44
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.

15
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 re-
quire 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 un-
derstood in the context of the social engineering character of the relevant legisla-
tion.

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 deci-
sion must comply with what has been termed social congruence, systemic consis-
tency 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 consis-
tent within itself, i.e. the law as a whole is a system and not a random mass of

45
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 be-
comes 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, Cam-
bridge, Mass., 1988) , chapter V.

16
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 ad-
just 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 devel-
opment and implementation of the law through legislation only. This is especially
so where adjudication governed by legislation is exercised by non-court adjudica-
tors.48 In that context, attention must also be drawn to the increasing phenomenon
of “adjudicative legislation”, interest groups litigating carefully selected fact sce-
narios 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 pro-
ceedings. 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 out-
come 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.

17
 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 relation-
ships between parties, registration of entitlements to property, the giving of rea-
sons, or even the formal registration of events. There is a strong historic signifi-
cance to these aspects, which is closely connected to the maintenance and devel-
opment 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 ca-
pable of doing so in a more or less ‘scientific’ manner. Just as one would be hesi-
tant 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 devel-
opment 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, espe-
cially 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 hierar-
chical 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 posi-
tions, 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 so-
ciety. The common law appeal system operates because it has the purpose of
upholding and developing an internally consistent rule system, rather than apply-
ing 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 accessi-
ble 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 bureau-
cracy. 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 ex-
pected.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 par-
ticipants in the process share a common background of somewhat esoteric know-
ledge, 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
Ronald Dworkin Law's Empire (Belknap Press, Cambridge, London, 1986) 134.
55
See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford Uni-
versity 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.

19
system itself, which can override the obligations to the respective clients. Conse-
quently, 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 op-
erates at (the perceived) high level of professional quality and in a well estab-
lished, 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 main-
tain 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 environ-
ment 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 safe-
guards as matters that are strictly between citizens. As relationships between in-
dividuals 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 constitu-
tional function, which depends on the practical relevance of the courts’ constitu-

20
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.

21
 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 alterna-
tives 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 so-
ciological 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 institu-
tions operate. When considering historical developments, it must be noted that
early law did not develop as an instrument to apply rules in order determine indi-
vidual 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 inde-
pendent from government or democratic in nature, but which are in fact subject to
close control by the government authority that is responsible for policy develop-
ment and implementation in the relevant subject area. These alternatives to adju-
dication comply closely with a hierarchical ideal of government authority; resolu-
tion of dispute takes place in the context of policy implementation by specialised

57
Julius Stone Social Dimensions of Law and Justice (Stevens & Sons Ltd, London, 1966) 52.
58
“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.

22
bureaucrats, organised in hierarchical organisation structures. The role of the state
in these processes is therefore twofold, first access to conventional courts is re-
stricted 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 follow-
ing alternatives must be compared and contrasted with providing a well distrib-
uted and accessible, decentralised general court structure, with its own, independ-
ent, 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 be-
tween parties with an “adjudicating” government organisation acting in an execu-
tive 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. Typi-
cally these structures are governed by empowering and procedure-controlling leg-
islation, 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 spe-
cialised 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 lim-
ited 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 increas-
ing 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
See Martin Shapiro and Alec Stone Sweet On Law, Politics, and Judicialisation (Oxford Uni-
versity 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 an-
other inevitably alters the nature and direction of the service.”
60
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.
61
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 Byzan-
tine set of rules and executive discretion for a potential defendant. The ACC sys-
tem 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 in-
versely correlated with the weaknesses of the litigation system. In other words,
would parties opt for these compulsory processes if efficient methods of adjudica-
tive decision making would be available? The areas in which the government in-

62
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 gov-
ernment.
64
See for a discussion of the American “tort liability transformation”: James Robert Forcier Judi-
cial excess : the political economy of the American legal system (University Press of Amer-
ica, 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 eventu-
ally drives social and technical development, which arguably government bureaucracy will
never achieve. On the other hand, there are transaction costs that may inequitably effect con-
sumers in general, see p159.
65
S10 Family Proceedings Act 1980, S159 Employments Relations Act 2000.

24
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 “con-
sensual” 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 adju-
dication processes can only exist because of specific legislation. The format is
different from that of tribunals, which mostly operate under the government um-
brella, with officials paid for by government, using government infrastructure etc.
The distinction between dispute resolution services within or outside the govern-
ment 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 legis-
lation, but performed by private practitioners, paid for by the state. Another ex-
ample is adjudication under the Construction Contracts Act 2003, which provides
for a “compulsory” process, with procedures that are governed by legislation, per-
formed 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 “adjudica-
tor” 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 pri-
vate 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 in-
frastructure 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 recog-
nition for arbitration awards. Virtually all countries are now signatories to these
international treaties, and most have adopted in some way the model laws devel-
oped 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
Peter Spiller The disputes tribunals of New Zealand (2nd, Brookers, Wellington [N.Z.], 2003)
67
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 Zea-
land Law Review 1
68
This “Jus Gentium” is the basis for international law, and for what is now called “Lex Mercato-
ria”, a developing codified set of rules, maintained by the United Nations that is increasingly
used in supra-national commercial dispute resolution.

26
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 so-
phisticated international organisations have sprung up that provide arbitration ser-
vices, and many high-calibre judges have left the bench to become arbitrators.
The success of arbitration may be measured from the absence of significant com-
mercial 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 pro-
vides for a niche that the courts cannot easily fill. This is not necessarily a posi-
tive 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 commer-
cial 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 adjudi-
cation.

69
With the exception of inherent jurisdiction and powers of contempt.
70
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 arbitra-
tion 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.

27
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 Al-
though 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 Con-
quest. The Roman process for civil dispute resolution was quite advanced; dispu-
tants 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 prac-
tical 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 as-
certained 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 Ro-
man system left adjudication to the parties, while it preserved a learned develop-
ment 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 Aca-
demic 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.

28
 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 pro-
duced 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 le-
gal 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 pro-
fession 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 Revolu-
tion, The Formation of the Western Legal Tradition (Harvard University Press, Cambridge
Mass , London, 1983) 87.
79
Ibid (113).

29
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 ad-
vanced, simply because this purifying action has been at work for well over a
thousand years longer. This effect is demonstrated in both substantive and adjec-
tival 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 al-
ternatives 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 leg-
islative forces can reduce the possibility of critical analysis by an institution with
independent and constitutional powers. Redress against decisions made in alter-
native 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 uncon-
trolled executive and legislative rule making.

31
 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 simpli-
fying procedure and providing information to (potential) litigants. Modern tech-
nology 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 litiga-
tion 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 ACC-
type 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 descrip-
tion see Carlo Guarnieri and Patrizia Pederzoli The Power of Judges, A comparative study of
courts and democracy (Oxford University Press, Oxford, 2003) 101.

32
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 rele-
vance, also as a result of the increased integration into the European legal struc-
tures.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 re-
mains strong and the role of the state(s) is focused on making the system increas-
ingly 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 involve-
ment, 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 (Uni-
versity 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).

33
By contrast, in New Zealand the Law Commission suggested far reaching struc-
tural 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 or-
ganization 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 opera-
tion 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 under-
lines 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 jus-
tice 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 Au-
gust 2004 (2004), Rules Sub-Committee to the New Zealand Court Rules Committee Re-
sponse of District Court Claims Sub-Committee on submissions on rules committee consulta-
tion paper issued 23 August 2004 (2005)
90
New Zealand Government Government response to Law Commission report on delivering jus-
tice for all, October 2004 (2004)

34
 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 can-
not be completed without also considering the concept “authority”, which con-
nects 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 Dam-
aska,91 and the empirical work of Shapiro and Sweet Stone,92 who describe an in-
creasingly political role of courts around the world.93

A. Adjudication
The concept of adjudication follows from the concept that rules, however devel-
oped, can be used to regulate behaviour within a society. This desire to regulate
behaviour flows from the recognition that cooperating individuals will have con-
sciously 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 re-
ciprocity 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 (Pen-
guin, London, 1999) , Chapter I, “Of the division of labour”.

35
cooperation and expansion of material objectives.96 There are therefore compel-
ling reasons to create a “legal order”, i.e. a system of enforceable rules that pro-
tects the societal objectives (and not necessarily each individual in society). As it
is a human characteristic to strive for maximisation of individual goal satisfac-
tion,97 conflict is an inherent consequence of attempts at cooperation.98 Adjudica-
tion 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 out-
come 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 au-
thority. A person or institution must be available that by some means has a suffi-

96
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 de-
velopment 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 un-
derstood 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 to-
wards a more activist model of state intervention.

36
ciently strong coercive position, and which can be persuaded to exercise that coer-
cive 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 adjudi-
cative 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 obli-
gations 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 so-
ciety 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 whatso-
ever 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)

37
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 ba-
sis. Laws in such systems address members of society and consist of substantive
rules.

In the hierarchical ideal authority is concentrated, and exercised through a pyra-

mid of officials that apply rules that are set or sanctioned at the top of the struc-
ture. 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 profes-
sional 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 in-
volvement 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 or-
ganised, institutions (courts).

38
 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. Con-
tract is the prevailing paradigm for social organisation. The state protects order,
and hence its main role is dispute resolution. The reactive state lacks transforma-
tive 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 sover-
eign integrity of the state itself. Where self-regulation and non intervention are
paramount, “justice” is ultimately guided by fundamental principles that lie be-
yond 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 “funda-
mental”; 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 con-
ciliatory 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 be-
tween 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 pro-
tect 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.

39
 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 con-
trolled by regulation that seeks to make them compliant with state policy.103 So-
ciety is organised by detailed regulation and government decree. Societal prob-
lems 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 sta-

103
Mirjan R. Damaska The faces of justice and state authority : a comparative approach to the
legal process (Yale University Press, New Haven, 1986) 186.
104
In that context, the following quote is apt: “…modern man has undergone a mischievous taxi-
dermy; he is stuffed to the bursting point with a dangerous idea. It is the idea that self inter-
estedness 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.
105
“…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.
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.

40
sis may be a cause for concern; there must always be some area of possible im-
provement 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 vic-
timised, 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 dif-
ferent concepts may be mixed and mingled in the one proceeding.

Resolution of dispute is aimed at implementing the state’s objectives to the cir-

cumstances 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 adjudi-
cation 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 de-
velop a taste for increased intervention and regulation, thereby creating a self-
perpetuating 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.

41
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 develop-
ment 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 under-
mines 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 po-
litical 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 Evo-
lution 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.

42
 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 de-
velop 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 differ-
ent 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 as-
pects of social life, as dispute resolution is increasingly placed in the context of
policy implementation, or is converted into executive or administrative proc-
esses.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 govern-
ance, 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

43
 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 po-
litical nature, and increasingly so. A court must have the real authority to con-
clude proceedings in an independent and unbiased manner, and to enforce its de-
cisions, 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 struc-
ture.115

Globally, the political role of the courts is increasing:116

The courts –or at least some of them- participate openly in the constitu-
tional 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 con-
stitutional 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 individu-
als 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 pe-
riod, 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 judiciar-
ies are more politically active than others, it is not just structures but political context (histori-
cal 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 Ori-
gins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge,
London, 2004) 1.

44
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 ex-
ercise of what should be their developing role:117

If the courts exercise such important powers and are the ultimate guaran-
tors 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 proce-
dures 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 in-
correct 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 con-
trolled) 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 ex-
posed, 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 . Sta-
tistics for the ACC scheme cannot be validly compared with possible civil litigation claim
numbers.

45
If the objective is maintaining a common law legal system and the reasonably re-
active 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 con-
stitutional 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 im-
plement such a far reaching strategy. There are ample examples from similar ju-
risdictions that show how this can be achieved, and New Zealand has, in its lim-
ited 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 Con-
sequences of the New Constitutionalism (Harvard University Press, Cambridge, London,
2004) 26-27.

46
 VIII BIBLIOGRAPHY

Bayles M. D. Principles of Law, A Normative Analysis (Kluwer, Dordrecht, 1987)

Beck A. Principles of civil procedure (2nd ed, Brookers, Wellington, 2001)
Berman H., J Law and Revolution, The Formation of the Western Legal Tradition
(Harvard University Press, Cambridge Mass , London, 1983)
Boulle L., & Nesic M. Mediation : principles, process, practice (Butterworths,
London, 2001)
Coquillette D. R. The Anglo-American legal heritage (Carolina Academic Press,
Durham, 1999)
Damaska M. R. The faces of justice and state authority : a comparative approach
to the legal process (Yale University Press, New Haven, 1986)
Dworkin R. Law's Empire (Belknap Press, Cambridge, London, 1986)
Eisenberg M. A. The nature of the common law (Harvard University Press, Cam-
bridge, Mass., 1988)
Fix Fierro H. Courts, justice, and efficiency : a socio-legal study of economic ra-
tionality in adjudication (Hart, Oxford, 2003)
Forcier J. R. Judicial excess : the political economy of the American legal system
(University Press of America, Lanham, Md., 1994)
Fox R. Justice in the twenty-first century (Cavendish Publishing, Sydney ; Lon-
don, 2000)
Fuller L. L. Anatomy of the law (F. A. Praeger, New York,, 1968)
Fuller L. L. "The forms and limits of adjudication" (1978) 92 Harv LR 353-409
Fuller L. L., & Winston K. I. The principles of social order : selected essays of
Lon L. Fuller (Rev. ed, Hart, Oxford, 2001)
Guarnieri C., & Pederzoli P. The Power of Judges, A comparative study of courts
and democracy (Oxford University Press, Oxford, 2003)
Hirschl R. Towards Juristocracy, The Origins and Consequences of the New Con-
stitutionalism (Harvard University Press, Cambridge, London, 2004)
Hutchinson A. C. Evolution and the Common Law (Cambridge University Press,
Cambridge, 2005)
Lavarch M., & Stacy H. Beyond the adversarial system (Federation Press, Leich-
hardt, N.S.W., 1999)
Maslow A. Motivation and personality (2nd ed, Harper & Rowe, 1970)
MinJustice Information and Knowledge Management Working Group Justice Sec-
tor Information Committee of the Ministry of Justice Information and

47
 Knowledge Management Guidebook for the New Zealand Justice Sector
(2005)
MinJustice Ministry of Justice Ministry of Justice, Annual Report 1 July 2004 - 30
June 2005 (2005)
MinJustice Ministry of Justice Report of the Ministry of Justice Baseline Review,
17 December 2004 (2004)
NZGovt New Zealand Government Government response to Law Commission
report on delivering justice for all, October 2004 (2004)
NZLC New Zealand Law Commission Delivering Justice for all, a vision for New
Zealand Courts and Tribunals, NZLC Report 85 (2004)
NZLC New Zealand Law Commission Seeking solutions: Options for change to
the New Zealand Court system: Have your say: Part 2 - NZLC PP 52
(2002)
Pawsey R. "Tertiary Legislation" [2006] New Zealand Law Journal 214
Pleasence P. Causes of Action: Civil Law and Social Justice. The final report of
the first LSRC survey of justiciable problems. (Legal Services Commis-
sion, London, 2004)
Pound R. Interpretations of legal history (Harvard University Press, Cambridge,
1923)
Pound R. Social control through law (Yale University Press, New Haven, 1942)
Raz J. The concept of a legal system : an introduction to the theory of legal system
(2d ed, Clarendon Press, Oxford, 1980)
Rules_Committee Rules Sub-Committee to the New Zealand Court Rules Com-
mittee Consultation paper 23 August 2004 (2004)
Rules_Committee Rules Sub-Committee to the New Zealand Court Rules Com-
mittee Response of District Court Claims Sub-Committee on submissions
on rules committee consultation paper issued 23 August 2004 (2005)
Saville-Smith K. Ministry of Justice, Alternative dispute resolution : general civil
cases / prepared for the Ministry of Justice by K. Saville-Smith and R.
Fraser (2004)
Shapiro M., & Stone Sweet A. On Law, Politics, and Judicialisation (Oxford
University Press, Oxford, 2002)
Simmel G. The Sociology of Georg Simmel (Free Press, New York, 1950)
Smith A. The Wealth of Nations, Book I-III, first published in 1776 (Penguin,
London, 1999)
Smith P. The Nature and process of law : an introduction to legal philosophy
(Oxford University Press, New York, 1993)
Smyth M. "Access to Justice" [2002] New Zealand Law Journal 313
Smyth M. "Bringing Litigation into the 21st Century" [2002] New Zealand Law
Journal 227

48
Smyth M. "Keeping things in proportion" [2002] New Zealand Law Journal 346
Smyth M. "Litigate or settle?" [2002] New Zealand Law Journal 273
Spiller P. The disputes tribunals of New Zealand (2nd ed, Brookers, Wellington
[N.Z.], 2003)
Stacy H., & Lavarch M. Beyond the adversarial system (The Federation Press,
Sydney, 1999)
Stone J. Social Dimensions of Law and Justice (Stevens & Sons Ltd, London,
1966)
UKDCA United Kingdom Department for Constitutional Affairs Judicial Statis-
tics Annual Report (2004)
Waldron J. "John Locke: Social Contract Versus Political Anthropology" In: J R
Milton (ed.), Locke's moral, political, and legal philosophy. (Dartmouth,
Ashgate, 1999)
Williams D. "Arbitration and Dispute Resolution" [1998] New Zealand Law Re-
view 1
Williams D. "A proposal for a domestic arbitration appeals tribunal: AMINZ Ar-
bitration Appeals Tribunal" [2002] New Zealand Law Journal 75-76
Williams S. (Conference paper) "AMINZ arbitration appeals, an introduction",
Conference: "New Zealand Arbitration Day" seminar Auckland 2006
Willy A. A. P. Arbitration in New Zealand (Lexis Nexis, Wellington, 2003)
Woolf(Lord) Access to Justice: Final Report to the Lord Chancellor on the Civil
Justice System in England and Wales (HMSO, London, 1996)
Zondag B. (2006). 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.
Zuckerman A. A. S. Civil procedure : general principles (Sweet & Maxwell,
London, 2006)
Saville-Smith K., & Fraser R. 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)
Zuckerman A. A. S., Chiarloni S., & Gottwald P. Civil justice in crisis : compara-
tive perspectives of civil procedure (Oxford University Press, Oxford,
1999)
Zuckerman A. A. S., & Cranston R. Reform of civil procedure : essays on 'Access
to Justice' (Oxford University Press, Oxford, 1995)

49
L. Boulle and M. Nesic Mediation : principles, process, practice
H. Fix Fierro Courts, justice, and efficiency : a socio-legal study of economic ra-
tionality in adjudication
J. R. Forcier Judicial excess : the political economy of the American legal sys-
tem;R. Fox Justice in the twenty-first century
L. L. Fuller Anatomy of the law;M. Lavarch and H. Stacy Beyond the adversarial
system;MinJustice Report of the Ministry of Justice Baseline Review, 17
December 2004, Information and Knowledge Management Guidebook for
the New Zealand Justice Sector, Ministry of Justice, Annual Report 1 July
2004 - 30 June 2005;NZGovt Government response to Law Commission
report on delivering justice for all, October 2004;NZLC Seeking solutions:
Options for change to the New Zealand Court system: Have your say: Part
2 - NZLC PP 52, Delivering Justice for all, a vision for New Zealand
Courts and Tribunals, NZLC Report 85;P. Pleasence Causes of Action:
Civil Law and Social Justice. The final report of the first LSRC survey of
justiciable problems.;J. Raz The concept of a legal system : an introduc-
tion to the theory of legal system
J. Raz The concept of a legal system : an introduction to the theory of legal sys-
tem;Rules_Committee Consultation paper 23 August 2004, Response of
District Court Claims Sub-Committee on submissions on rules committee
consultation paper issued 23 August 2004;K. Saville-Smith Alternative
dispute resolution : general civil cases / prepared for the Ministry of Jus-
tice by K. Saville-Smith and R. Fraser;P. Smith The Nature and process of
law : an introduction to legal philosophy;M. Smyth Litigate or settle?,
Bringing Litigation into the 21st Century, Access to Justice, Keeping
things in proportion;P. Spiller The disputes tribunals of New Zealand;H.
Stacy and M. Lavarch Beyond the adversarial system;UKDCA Judicial
Statistics Annual Report;J. Waldron John Locke: Social Contract Versus
Political Anthropology;Woolf(Lord) Access to Justice: Final Report to the
Lord Chancellor on the Civil Justice System in England and Wales;B.
Zondag The structure of civil conflict, a first step to computer assisted dis-
pute resolution. (published Masters thesis);A. A. S. Zuckerman Civil pro-
cedure : general principles;A. A. S. Zuckerman et al. Civil justice in crisis
: comparative perspectives of civil procedure;A. A. S. Zuckerman and R.
Cranston Reform of civil procedure : essays on 'Access to Justice'
M. D. Bayles Principles of Law, A Normative Analysis
A. Beck Principles of civil procedure

50