The law, Not one for cultural cringe, Bill Sewell

Salmond: Southern Jurist
Alex Frame
Victoria University Press, $49.95,
ISBN 0 86473 286 4

The name Sir John Salmond will mean little to most New Zealanders. Historians may be familiar with him as an influential Solicitor-General from 1910 to 1920 (though he does not feature in the index of Sir Keith Sinclair’s A History of New Zealand, for instance). Lawyers will know of him as the Supreme Court judge responsible for deciding such leading cases as Taylor v Combined Buyers Ltd, Park v The Minister of Education and Boyd v the Mayor of Wellington. There is a university hostel named after him in Dunedin. But even students of law are likely to be able to identify him only as the invisible author of the text Salmond on Torts — and, as Alex Frame points out in his introduction, that is not much referred to these days.

Yet Mr Justice Salmond is in his way as distinguished as his two more famous New Zealand contemporaries, Ernest Rutherford and Katherine Mansfield. His “fingerprints [seem] to be everywhere” in our legal system. Not only was he responsible for fashioning much important legislation in the early part of the century and not only was he a greatly respected judge — in spite of his short time on the bench — he was also a jurist and legal philosopher with an international reputation. What is extraordinary is that he began to forge this reputation in the small South Canterbury town of Temuka where he practised for some eight years. He was not one to be put off by any sort of “cultural cringe”, it seems.

Perhaps posthumous neglect is the fate of most jurists, their rewards coming to them instead during their lifetimes in the form of knighthoods and sometimes exaggerated deference. But Alex Frame clearly sees it as part of his task to rescue Salmond from neglect. Even a summary of Salmond’s curriculum vitae goes some way towards achieving this.

Born in Newcastle, England, in 1862, Salmond was a son of the manse, his father William being a somewhat controversial figure who emigrated to New Zealand in 1875 and some years later became entangled in a trial for heresy. John proved academically able, winning a scholarship to study law at the University of London from 1883 to 1886. It was here that he came into contact with the positivist legal thinking which was to shape his own jurisprudence. After a brief stint teaching at the University of Otago, he took up his practice as a country lawyer in Temuka in 1890.

He found time between clients to pen two books — Essays in Jurisprudence and Legal History (1891) and The First Principles of Jurisprudence (1893) — which came to the notice of overseas jurists such as Sir Frederick Pollock and Oliver Wendell Holmes. These books no doubt helped to build him enough of a reputation to secure the position of Professor of Laws at the University of Adelaide in 1897. He spent the best part of a decade in South Australia, publishing his major text Jurisprudence: or the Theory of the Law in 1902, but returned to New Zealand in 1906 to become one of the first two professors of law at Victoria University.

By the following year, however, he had began his third career — in the public service — by accepting appointment as counsel to the Law Drafting Office. From here he moved to the Crown Law Office in 1910 as Solicitor-General and eventually to the Supreme Court in 1920 where he remained until his death at the age of 62 in 1924. This period was punctuated by a stint as New Zealand representative at the Washington Conference on the Limitation of Armaments from 1921 to 1922.

This is Salmond’s life in outline and it wouldn’t be unfair to say that Frame himself supplies little more than a skeleton of the life. Salmond: Southern Jurist is not a biography but (as described in the introduction) “a kind of biography” and the blurb refers to it variously as an “account” and a “study”. The reason is that there is a paucity of information on Salmond the private individual, though not on his thinking or his professional dealings. There is almost no “gossip”.

This will disappoint readers who like to pry into the private lives of the judiciary, to look behind that remote anonymity for reassurance that judges are as human as the rest of us. Frame does attempt to make up for the human deficit by importing colour from contemporary history. For example, he contrasts the very different encounters with Maori experienced by Salmond in drafting Maori land law and by Katherine Mansfield in her trip into the Urewera region; and he describes life on board the Niagara, the vessel on which Salmond travelled to the United States in 1921. But none of this diverts the more prurient reader from wanting to know what it was exactly that drove Annie Salmond, his wife, into Porirua hospital in 1918 and what exactly the nature of Salmond’s relationship was with the young journalist Nelle Scanlan towards the end of his life.

Nor is this technique really sufficient to bring the book within the range of the general reader. Frame expresses the hope in his introduction that the book will be accessible but the hope seems half-hearted, since he concedes in the same breath that the book is a “compromise” and that “non-lawyers at least may wish to make use of an imaginary fast-forward button at some points”. If they were to do this they might end up with very little to read.

For Frame’s focus is jurisprudential. His primary concern is to give an account of Salmond’s legal thinking as it manifested itself in his various professional activities: whether as an academic surveying the legal system as a whole; or as a senior public servant grappling with the Maori land question, trouble on the Wellington waterfront in 1913 and the powers of the state in wartime; or as a judge deciding whether or not the dissatisfied owner of a new Calthorpe motorcar had purchased an item of “merchantable quality” under s16(b) of the Sale of Goods Act 1908.

In giving an account of Salmond’s legal thinking, Frame achieves two things. First, he makes out a good case for seeing the law — as Salmond did — in a holistic sense, pointing out “the utility of a well-conceived analytical apparatus for finding one’s way about in the practical legal tasks of constructing, operating, maintaining and repairing the legal system”. Second, he shows that Salmond was in many ways well ahead of his time.

Salmond had been steeped in the jurisprudence of John Austin (1790-1859) during his studies in London. It was the heyday of legal positivism, an approach which attempted to rid law of “speculation, metaphysics and wrangling over questions of conscience and ultimate authority” and limit law to the “commands of a ‘sovereign’ with unlimited theoretical power”. Salmond, however, parted company with Austinian thinking at an early stage and in the two studies published during his Temuka years he set out to restore an ethical conception to law. The aim of law, he maintained, is

the maintenance of right by the physical force of the state. A theory of law, therefore, must be based not only on a theory of the state but also on a theory of right. Politics supplies the former; ethics the latter.

Law itself is simply “an aggregate of … rules” which are “recognised and acted on by the state in the administration of justice”, while the latter is “that function of the state which consists in the application of remedies to wrongs”.

From this basis followed, for instance, Salmond’s analysis of legal relations into correlative and opposite elements (which anticipated Hohfeld) or his tracing the sources of law to “ultimate legal principles”, “self-existent rules … on which all the others hang” (here anticipating Kelsen’s notion of the “basic norm”). On a more practical level it was reflected in his endorsement of the lawmaking role of the courts, a process which bypasses the “sovereignty” of the legislature. Nevertheless, it must not be thought that, because he discounted the sovereign as an ultimate source of law, he minimised the role of the state in either his jurisprudence or in his professional activities.

It probably requires a modicum of legal knowledge to fully appreciate how advanced some of Salmond’s thinking and practice was. As a legal drafter, he favoured in some instances the “scattershot” approach, which accepts that a given piece of legislation cannot hope to cover all eventualities. He seems to have been an early practitioner of plain language drafting but without forsaking technical legal language when necessary. In spite of holding “strict constructionist” views on the judicial interpretation of legislation, he also recognised the importance of “judicial creativity in pursuit of legislative ‘intent’, whether real or presumed”. He was an early champion in the common law world of codification and was responsible for codifying the law of Western Samoa, the Cook Islands and Niue, much of which endures today. Finally, he had an early understanding of the growing importance of international law and accurately predicted that soon “the law of nations would be embodied in treaties in the observance of which the nations of the world would pledge themselves before the world.”

So much for Salmond the lawyer’s lawyer. Of more interest to the general reader, perhaps, is his legal response to contemporary events. In the Office of Law Drafting and the Crown Law Office Salmond was much occupied by the law relating to Maori land, one of his first tasks being to rationalise what was already on the statute book. It seems clear that he had an “antipathy to what is today called ‘racism’”. But he also looked to resolution of questions arising out of the Treaty of Waitangi not in the courts but by the political process, through legislatively provided compensation. As Frame comments, “this pattern has proved in modern times to be the most fruitful process for redressing Maori treaty-based grievances”.

If in this respect Salmond was far-sighted, in another he was more clearly a product of his time. When the Wellington waterside workers threatened to defy the authority of the government in 1913 the Prime Minister, William Massey, sought advice from his Solicitor-General on the powers of the government and received the reply that

[b]y the common law it is not only the right but the duty of the police and of all magistrates and officers of the peace to use their best endeavours to maintain the King’s peace and for this purpose to use such force and to take all such other measures as are reasonably deemed necessary.

This “permissive conception of state legality” (as Frame terms it) was, of course, pursued to an extreme in World War I which was to follow shortly after and in which he was to suffer a personal tragedy, the loss of his elder son.

We get a solid realisation of Salmond the public figure and jurist. But Salmond the personality remains an enigma. How was he affected by his son’s death, for example? Was he humourless and dull in the lecture room or a brilliant teacher possessed of a dry wit? Why did he spend so many years in Temuka? Did he have any vices?

This failure to bring his subject fully to life is something which Frame could probably never have remedied. If the information is unavailable, then over-speculation would only move the book into fiction and that is not the aim. Frame’s method is to engage instead in a discussion of jurisprudence and legal points and leave the personality to fend for itself. The problem is that this discussion is conducted largely for lawyers. Moreover, it is a discussion which is sometimes so elliptical that in the early chapter dealing with Austinian jurisprudence Frame actually neglects to tell the reader who John Austin was.

But even if it does not allow us to become more intimate with Salmond and even if it by and large excludes the general reader, this is an important book. It highlights its subject’s “central role in the making of the New Zealand legal system”, sets his thinking in its historical context and tests its relevance to the present-day and gives renewed recognition to a very eminent lawyer, in whose footsteps have followed — in one way or another — such distinguished jurists as Professor Quentin-Baxter, Lord Cooke of Thorndon and Sir Kenneth Keith.

Bill Sewell is a Wellington legal researcher, poet and critic.

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Posted in Non-fiction, Politics & Law, Review
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