Friday, February 16, 2007
Vale Robin Cooke
I don't really move in those circles anymore, so I only found out yesterday that Lord Cooke of Thorndon died last August.
I'm not sure if it's quite right to describe yourself as being a fan of someone's jurisprudence, but insofar as you can, I was a fan of his.
Cooke was President of the NZ Court of Appeal in the 80s, and retired in 1996. By the time I started law school, his robust, natural-law tinged approach to statutory interpretation was deeply unfashionable.
In the minds of many of my friends, Cooke's expansive approach was a sign of mental and sentimental weakness, and inability to simply apply the law in cases where to do so would result in unfairness.
He became something of a joke. Students would groan in class when his judgments were discussed. His name became, like Lord Denning's, a byword for sloppy, woolly-minded, bleeding-heart thinking.
Even at the time this struck me as unseemly. A bunch of jumped-up private school kids headed straight for commercial practise for whom a "black-letter" approach was a handy pose, the ideological equivalent of a meerschaum pipe and leather elbow patches, making themselves look smart by sneering at the expense of an intellectual heavyweight who had devoted his life to the public service. If he on occasion refused to bite the bullet, it was because he was aware that his decisions had major effects on the lives of real people.
But as time went on, I became convinced that my friends' disdain was not just unsightly, but wrong.
I wrote my honours dissertation on a series of cases the Cooke Court of Appeal had decided. They weren't glamorous or heart-rending. They didn't involve human rights or criminal law or any of the other fields that usually spur judicial adventurousness. They were mostly just about public utilities. But they arguably formed the high water mark of judicial legislation in New Zealand - and it mostly passed unnoticed.
In the 80s, upon inheriting a bloated and rotten public sector from its predecessor, the newly elected Labour Government undertook a hurried program of first corporatising, then privatising public utilities. Unfortunately, the program was pushed through so hastily that much of the legislation was poorly drafted and, if taken at face value, would have been impossible to give effect to.
Under Cooke, the court had little difficulty filling the gaps, substantially overstepping the generally agreed bounds of judicial power to effectively write provisions into the law giving effect to the legislative program.
It was only when I got to grips with those cases that I became certain that Cooke was not merely an otherwise brilliant judge who occasionally let his emotions get the better of him. In fact, he was as consistent and rigorous as any of his contemporaries, and every bit as eager to give effect to the intent of parliament.
It's just that in doing so, he was willing to strain the meaning of individual sections in order to make the law as a whole coherent. He would always assume, in the absence of overwhelming evidence to the contrary, that parliament's intentions were benign, and that they too were working with this goal in mind.
In the process he propagated a far more lively brand and intellectually engaging brand of law than his contemporaries, one that encouraged good government by asserting the role of the courts as a counterbalance to legislative overreach and executive populism.
If he also stopped the odd little old lady from getting turfed out of her family home and onto the street, then so much the better.
I suppose he was something of a hero of mine. The world is richer for his work, and poorer for his passing.