Old white man of the day


John William Salmond’s contributions to many branches of the law in New Zealand, together with his international eminence as a legal theorist, entitle him to be regarded as New Zealand’s most eminent jurist. He was born on 3 December 1862 in North Shields, Northumberland, England. The family migrated to Dunedin, New Zealand, in 1875 on the Corona, and William began a long career as a teacher of theology and moral philosophy. John Salmond attended the High School of Otago (later Otago Boys’ High School) from 1876 to 1879, and then the University of Otago as a junior scholar, earning a BA in 1881 and MA in 1882.

In 1883, having won a Gilchrist Scholarship from the University of London, Salmond travelled to England to study law. He obtained the degree of LLB and became a fellow of his college, then returned to New Zealand in 1887. In 1888 Salmond offered his services ‘with or without salary’ as a teacher of law to the University of Otago. Although this was at first declined, Salmond was eventually appointed to a lectureship in constitutional law for 1889.

In 1891 Salmond entered legal practice in Temuka. […] Between 1891 and 1897 Salmond carried on a varied country legal practice. He appears to have been a popular and sought-after lawyer, and conducted many successful cases. He took part in civic affairs as president of the Temuka Mechanics’ Institute and as a member of the Temuka School Committee and the South Canterbury Education Board.

It was in Temuka, too, that Salmond wrote two short but seminal books, Essays in jurisprudence and legal history (1891) and The first principles of jurisprudence (1893). In these he criticised the then-dominant theory of John Austin, to which he had been exposed while in England; according to this the essential feature of law is the ability of a ‘political superior’ to enforce obedience to its commands by the threat or fact of sanctions. Although Salmond criticised the Austinian model for its failure to account for non-coercive and ethical functions of law, he adopted its definitional rigour.

In 1897 Salmond was appointed professor of law at the University of Adelaide in South Australia, a post he was to occupy until 1906. This period saw the publication of Jurisprudence: or the theory of the law (1902). Apart from the lucid account of the legal system that successive editions of this work were to provide for generations of law students in the English-speaking world, the book developed influential concepts that subsequent writers on legal theory were to adopt. In particular, Salmond analysed rights by distinguishing four different kinds of advantage that law might confer: ‘liberty, when the law allows to my will a sphere of unrestrained activity; power, when the law actively assists me in making my will effective as against others; right, in the strict sense, when the law limits the liberty of others in my behalf; immunity, when the law in my behalf refuses power to others to be used against me.’

A second seminal concept in Jurisprudence was that of the ultimate legal principle, defined as a ‘self-existent rule…without legally recognised source’. For example, the rule that acts of Parliament have the force of law could not itself be based on an act of Parliament. […]

In 1907 Salmond published The law of torts, in which he arranged much heterogeneous material under a set of principles. The book appeared in its 27th edition in 1992. In 1911 the law faculty at Harvard University voted to award the book the Ames Prize for the most meritorious English-language legal publication in the preceding four years. In 1914 the Swiney Prize was awarded to Salmond by the Royal Society of Arts in London for Jurisprudence.[…]

Salmond was appointed a judge of the Supreme Court of New Zealand in May 1920. He sat for only four years, but his judicial output was considerable both in quantity and quality. Among his notable judgements were Lodder v. Lodder (1921), in which the philosophy of the newly created discretionary grounds for divorce was expounded; Park v. Minister of Education (1922), in which Salmond held that regulations empowering the minister of education to cancel a teacher’s certificate were without legal force; and Taylor v. Combined Buyers (1924), where the principles of the Sale of Goods Act 1908 were explained.

Salmond’s approach to judicial punishment stressed the importance of deterrence, although he also regarded retribution as legitimate. The apparent severity of his approach was tempered by the advice he offered in a volume of aphorisms, ‘My son’, said the philosopher, privately published for distribution among friends in 1920: ‘Keep your head hard and your heart soft.’ End of quote.


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WH is a pale, stale, male who does not believe all the doom and gloom climate nonsense so enjoys generating CO2 that the plants need to grow by driving his MG.

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