The Place of Backlash in Decisions of the New Zealand Judiciary

Abstract

Issues central to a group identity, or nomos, are very significant to those who hold them. When those issues clash in courts, judges can be faced with very difficult and controversial decisions. When they have the authority and discretion to address issues of nomos, New Zealand courts both can and should consider the backlash that their decisions could cause, as backlash in the New Zealand context tends to lead to meaningful change to a judge’s decision. However, a democratic constitutionalist view of backlash realizes that it is not always a negative phenomenon. Instead, backlash is evidence of subjects within a system contesting the norms and nomos that underlie their constitutional law. This conception of backlash is well suited to New Zealand’s constitutional experience, and so while judges would be prudent to consider the potential backlash against their judgments, they should not avoid full engagement with the law purely to avoid conflict.