11
Lawyers in New Zealand, and I suspect in much of the common law world, are in
economically secure and socially privileged positions. The financial returns in
maintaining the present way of doing things is to their clear advantage. Confronting the
legal establishment is draining and difficult. Many politicians shy away from it. My
experience is that bureaucrats, and those in the Executive arm of Government, are often
intimidated and overawed by Judges so the potential for change is seriously diminished.
A Law Commission which “ is not afraid to follow the truth, wherever it may lead”44, is
one of the few mechanisms which has the ability to deal with reality and to seek to bring
the law, in all its facets, into at least the late 19th Century even if it would be over-
optimistic to imagine that we could get it anywhere near the 21st Century.
Certainty and stability need not demand an absence of change. There are fundamental
principles which must be maintained with integrity, but these must be responsive to the
state of knowledge (particularly advances in science and technology) which infect and
influence all other parts of our community. You do not achieve justice by cocooning
the law in a past which is divorced from a current social, economic and operational
reality.
Law Commissions never have legislative power or authority. They do provide the
opportunity, however, to challenge lawmakers, to educate the public and to raise
awareness of the ongoing consequences of the present way of doing things. For
example, in 1999 we undertook a review of the law relating to retirement villages45
where there was a need for these phenomena, which had developed in our country as in
many others, to be better accommodated within the legal structure. This has now been
reflected in legislative change.
44
Jefferson to William Roscoe, 27 December 1820, in The Writings of Thomas Jefferson, vol. 15, ed.
Lipscomb and Bergh, 303
45
Law Commission Retirement Villages NZLC R57 (Wellington, 1999)
