much more difficult ever to see the body of law as a whole. This is a situation that
gives some credence to post-modern legal theories. The law cannot be found,
cannot be made sense of and often appears to lack ascertainable principles.
26
Issues concerning the rule of law also stem from this proliferation. In a recent
address, Justice Grant Hammond of the New Zealand Court of Appeal made a
most thoughtful and charming set of observations by looking at New Zealand
through the eyes of Sarah, who visits New Zealand from a far flung planet.16
Sarah finds the gap between the ideal of the rule of law and the reality in New
Zealand to be deeply troublesome:17
This is because the New Zealand legal system is, in operation, distinctly
inequitable and inefficient. This industrious little country keeps pumping out more
law than any comparable jurisdiction in the galaxy. But in practice it is only for
those who can afford it. For those who cannot afford all this law, and who are
likely to need it most, there is far too little law. She thinks (legal aid
notwithstanding) that most Kiwis find their legal rights hopelessly compromised by
the cost of legal services, the extraordinary procedural complications produced by
the law, and the seemingly interminable and frustrating delays involved in
advancing proceedings to anything like a conclusion.
27
Sarah cannot understand why New Zealand has put up with this state of affairs.
She is concerned about whether the tireless law generating activity in New
Zealand actually produces good outputs. She is worried about whether New
Zealand would receive a pass mark concerning its appreciation of the role and
limits of law. She tends to the view that a small-scale society could get by with
fewer rules. She also finds that the spirit of producing progressive solutions to
legal problems that was pioneered in New Zealand seems to have been lost.
28
What concerns me most in taking over the helm at the Law Commission at this
time is the relative failure to look at the body of our laws as a whole, and impose
on them some organising pattern or principles that will enable our legal system to
work effectively and fairly in practice. Simply adding to the bulk of the law
without considering its overall pattern is problematic. It was this thought that
16
Hon Justice Hammond, Law from Afar (address to the North American Alumni
Association, 4 November 2005).
17
The degree to which Sarahs view accords with Justice Hammonds view is not a matter I
can comment on. Judges must be careful in their extra-judicial utterances, no doubt.
10