Resumen de Writing things unwritten: Common law in New Zealand’s constitution
New Zealand is often said to have an unwritten constitution. But the adjective “unwritten” never meant the absence of writing; it means the absence of any truly supreme law. It is Parliament that is supreme, its enactments not being susceptible to annulment by any court. This article explores the way in which common law responds to these facts about New Zealand’s constitution. It examines two related fields in which a written constitution, if such existed, might impose explicit constraints—first, in protecting individual rights from legislative power, second, in reckoning with the Maori dimension of New Zealand’s constitution. As to that Maori dimension, the article explores the continuing salience of the Treaty of Waitangi made in 1840 between the United Kingdom sovereign and the indigenous Maori people. The implications of that transaction are still being resolved, 165 years later. The global renaissance of human rights and reckoning with indigenous rights has led to a reimagining of the New Zealand constitution. In a country where pragmatism (or “getting on with it”) is a prized value—and constitutional talk is often dismissed as academic navel-gazing—the common law developed by judges in light of New Zealand values serves an important updating function. In that sense common law serves to write things that remain unwritten.
