Just leave it to the courts? New Zealand's privacy rights regime as a case study in the relationship between common law development and legislative reform

Abstract

The common law tradition's defining characteristic is its duality: that is, it draws from two distinct sources of legal authority. Judge-made law is law 'from below', emanating retroactively from specific disputes and, over time, crystallizing into general legal principles. Legislation, conversely, descends 'from above', originating as abstract rules and principles which then take effect in specific cases. The difference is not merely structural – the two sources represent different forms of reasoning and necessarily result in different kinds of law. As such, in attempting legal reform in the common law tradition it is important not only to arrive at the best substantive legal rules, but to ensure that the rules are arrived at by, and developed within, the right strand of authority. The question – is this an issue for Parliament or for the courts? – is always a salient one.