Church no longer runs court

We have seen that principles of the English common law as grafted to New Zealand, lie in 1000 years of interaction between the Courts of King's Bench and Equity.

As the Church was the only place of education, so - inevitably and felicitously - the law owes much to its teaching and tradition.

Practically the common law is a Christian institution.

Formerly there were the civil actions in contract and tort and trespass etc, and criminal laws and penalties for breach of the King's peace - and latterly "traffic offences" of furious riding and driving etc.

Questions of inheritance and marriage were occasionally decided by the Church courts.

Behind it all was the sense of truth and justice as taught by the Church - including the gospels - but also retribution and occasional vengeance of the Old Testament.

Much has changed - especially, of course road traffic law, and the criminal law which is now entirely by Parliament - in the Crimes Act.

There's a lot else that is new - not encountered by the common law - and largely by Acts of Parliament; patents and copyright and IP; planning and resource management; health and safety, and so on.

All may nevertheless heed the historical and traditional moral themes that distinguish common law; but administrative convenience creeps in continuously - the will of authorities and need for information or evidence - and the rule of law is threatened.

What is the rule of law?

Essentially, the principle that rights of the citizen are more important and worthy of protection than the authority of the Crown.

Civilisation is the balance between individual freedom and responsibility to others and the community.

John Stuart Mill wrote so much in his 1859 Essay on Liberty - look it up.

Part of the Rule of Law is that judges be independent of the legislature - so that sometimes, and if necessary, they may find ways to say that Parliament is wrong.

If you are interested in freedom, it's encouraging to see that the courts still consider Equity, to interpret or even deny, and give reality to Acts of Parliament.

Thus we see the Family Court applying ancient principles of equity in the modern field of relationship property to limit trusts, which are themselves the very creature of Equity.

John Tripe is principal with the Wanganui legal firm of Jack Riddet Tripe