Once Upon A Time In The Common Law—Institutional Narratives and Legal Change
Professor James Lee
We all love a good story, don’t we? This lecture is about the stories that our judges tell in explaining their development of the law, and why they matter.
Focusing on the Supreme Courts in New Zealand and the United Kingdom, I argue that each Court has successfully developed its identity as an innovative and independent institution, and that narratives have enabled them to be more effective institutional and constitutional actors within their legal cultures. We shall see that there are different narratives we might think of – factual, individual, argumentative, intellectual, cultural and institutional. Judges play individual and collective roles in writing these narratives, alongside the familiar work of legal method. I shall especially explore—and commend—the distinctive creativity of the New Zealand Supreme Court in its reasoning.
While I shall refer to various features of the respective courts’ practices, I shall examine two particular recent pairs of case studies to illustrate my argument. The first two cases are on controversial questions in the law of charities. We consider the NZSC decision in Attorney-General v Family First New Zealand [2022] NZSC 80, on the approach to ‘political’ purposes in charity law, and then the UKSC decision in London Borough of Merton Council v Nuffield Health [2023] UKSC 18, on determining public benefit. In both these cases, we see the importance of historical narrative in justifying the result in each case, in addition to the use of precedent. And yet, the way in which those narratives are established vary significantly.
Then I explore two cases from the law of tort on the question of the limits of developing the common law. The New Zealand Supreme Court case in Smith v Fonterra Co-Operative Group Limited [2024] NZSC 5 is a major decision on the ability of judge-made tort law to respond to climate concerns. I contrast this with the factually different but similarly significant decision of the UK Supreme Court in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, which restricted recovery for psychiatric harm. These two cases are instructive for the compelling contrasts in the visions they offer of what the common law can do.
The courts have various audiences, including the parties, their lawyers, fellow judges and other courts, students, academics and the general public. I shall argue that interrogating the role of narrative—both individual and shared institutional—reveals how these institutions understand their audiences, and how these institutions want to be understood.
Overall, I shall demonstrate that narratives play an important role in the imagination of the common law and how they do so, and encourage us to reflect critically on the stories these institutions tell, and the stories we tell about them.