Political Culture and the Rule of Law: Comparing the United States and New Zealand

Philosophers and lawyers often write about the rule of law as though it means the same thing in different societies. It is probably the case that there is a core notion of legality that is common to all law-governed societies, but the search for the bare minimum content of the rule of law has obscured a different kind of analysis, which is to explore the ways the concept may be instantiated in actual, living legal systems. An interesting possibility is that legal systems that appear to have a great deal in common may nevertheless differ in the way they apply or instantiate abstract ideals such as the rule of law. This paper takes as its starting point a recently published history of rival political ideals and differing political cultures in the United States and New Zealand, David Hackett Fischer’s book, Fairness and Freedom. Despite obvious similarities, including settlement by English-speaking people, inheritance of the common law tradition, and a fraught history of dealing with indigeneous people, there are profound differences between the histories of political ideals and modern political cultures of the United States and New Zealand. Looking at idiomatic or vernacular language in the two countries, Fischer observes that New Zealand political discourse is pervaded by references to fairness. On the other hand, modern American political culture accepts that “life is unfair.” Fairness is not the central organizing principle of American public life; that distinction belongs to ideals of liberty or freedom, which are endlessly invoked by politicians across the ideological spectrum. Fairness and freedom are protean concepts, taking on different meanings depending on the context. Moreover, they both connote ideals or virtues, so it is unsurprising to hear politicians seeking support for a policy on the ground that it increases freedom or fairness. Thus, the first claim of this paper is that a “fairness” story can be told on both sides of many of the policy debates canvassed by Fischer. There may be less of a difference than Fischer claims between the political cultures of the United States and New Zealand. It may be the case that New Zealanders tend to be attracted to the label “fairness,” but the substance of the policies so identified are not as different to American values as some of the stronger claims in the book would suggest. My second claim is that Fischer has understated the importance of another dimension of difference between American and New Zealand political culture, namely how much citizens tend to trust powerful public and private institutions. The paper illustrates these arguments with two case studies: (1) Constitutional law and policy, as illustrated in New Zealand by the treatment by courts and Parliament of the Treaty of Waitangi and the decisions of the Waitangi Tribunal, and in the United States by aspects of the Supreme Court’s constitutional jurisprudence, particularly the resort to the original understanding of the constitutional drafters. (2) The problem of accidental injuries, which in New Zealand are handled on a social-welfare approach through the Accident Compensation Commission (ACC), which in the United States are left to the common law. The most salient difference between the Treaty and the interpretation of the U.S. Constitution is that in New Zealand, Parliament, the courts, and the Waitangi Tribunal are willing to allow policy to develop gradually, using a pragmatic, open-ended, deliberative approach that relies on foundational values at a high level of generality and does not seek to foreclose further debate. Constitutional politics is therefore an ongoing process of negotiation. This style of decision-making reflects a comparatively high level of trust in the relevant institutions. In the United States, by contrast, the Supreme Court has looked for bright lines and clearly defined rights that take certain issues off the table for discussion through the political process. American constitutional practice reflects persistent mistrust of the power of government institutions and a desire to devolve power to individual citizens whenever possible. The rule of law must therefore be understood differently in New Zealand constitutional practice, as compared with the American case. The law does not serve as a lever to move reluctant state institutions, or as a weapon to be used against state actors; rather, it is a framework for an ongoing process of negotiating the terms of a relationship. The right theoretical model for legal rights and the rule of law is not a one-off contract whose meaning is fixed in time, but a “relational” contract whose content evolves and adapts within an ongoing relationship between the parties. In the context of accident compensation, one can supply a “fairness” account in support of either the ACC or the common law tort system. The American system incorporates many elements of the ACC, such as the socialization of risk and loss-spreading. Protecting individual autonomy (particularly by giving individuals a legal entitlement to bodily integrity) is certainly a goal of the tort system, but so is ensuring that injured people are compensated. Nevertheless, while it seems fair to assert that injured people should be compensated, one must also ask fairness-related questions about the source of that compensation, and how the costs of providing compensation should be allocated, e.g. among careful and careless drivers, employers with good safety records and those with shoddy ones, employers and employees, and so on.