Browsing by Author "Simkiss, Thomas"

Now showing 1 - 2 of 2

Open Access
Bleak House and the Demise of Chancery: A Case Study in the Relationship between Fictional Literature and Legal Reform
(Te Herenga Waka—Victoria University of Wellington, 2015) Simkiss, Thomas
This paper explores the relationship between fictional literature and law reform through the treatment of the Court of Chancery in Charles Dickens’s 1852-183 novel Bleak House. It offers a reading of the novel as a law reform narrative which presents a coherent picture of the state of the law as it is and an imaginative alternative for its future. The Chancery represented in the novel is mythologised and symbolic rather than strictly historically accurate, and this enables Dickens to reveal its problematic essence as a morally bankrupt and bankrupting institution. The solution the novel puts forward is two-fold: calling for its readers to participate personally in an ethic of equity and for lawmakers to reconfigure the court in a way which encourages such an ethic in its participants. Although the novel did not have a noticeable effect on the historical process of Chancery reform, it did contribute a new and counter-cultural normative vision of reform, and impacted on its readership at an individual level.
Open Access
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
(Te Herenga Waka—Victoria University of Wellington, 2016) Simkiss, Thomas
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.