A dimension overlooked in static analysis is the path of policy and law development over time, with path dependency and future, often unanticipated consequences from earlier decisions. Paul Pierson describes historical institutionalism166 as, ―a range of scholarship that has tried to combine social science concerns with a recognition that social processes must be understood as historical phenomena‖ (Pierson, 1996, p. 131). This is a particularly telling criticism of static analysis, because it suggests that the present depends not only on current structures, but on the paths taken to get here. He suggests, giving an example of gender policy in the European Union, that a general statement of intent, thought to be ―merely hortatory‖, can be made to assume greater significance later. In his example, an apparently innocuous agreement to move in a general direction was turned, a few years later, into an obligation to pass legislation.167
There are some important implications that arise from this perspective. Rather than policy decisions being based on expressions of exogenous preferences, for example, they may be path-dependent, with current preferences being influenced by past decisions made with limited foresight. Pierson also makes a more general statement, ―Complex social processes involving a large number of actors always generate elaborate
166 First mentioned in section 2.4.
167 The same point was made in New Zealand following the government‘s decision to support the Declaration of the Rights of Indigenous Peoples. New Zealand's first Maori High Court judge, Sir Edward Taihakurei Durie, considered this as the most important development for Maori since the signing of the Treaty of Waitangi in 1840. He is quoted as saying, "Important statements of principle established through international negotiation and acclamation filter into law in time, through both governments and the courts, which look constantly for universal statement of principle in developing policy or deciding cases" (A. Young, 2010). The same article stated, ―International declarations are often a first step towards binding conventions‖.
feedback loops and significant interaction effects that decision makers cannot hope to comprehend‖ (ibid, p. 136)168
.
A possible illustration of an unanticipated implication of past decisions is in the parliamentary debates. There were repeated references to the Human Rights Act 1993 to justify equal treatment of marriage, de facto relationships and same-sex relationships. In other words, legislation was passed at one time for certain reasons, and it then used at a later time as a justification for other law changes which may have been neither anticipated nor intended. The legislation was referred to, for example, by Judith Tizard MP and Matt Robson MP on 5 May 1998; Leanne Dalziel MP, Phil Goff MP, and Jeanette Fitzsimons MP on 6 May 1998; by Margaret Wilson MP, Keith Locke MP and Tim Barnett MP on 4 May 2000; by Tim Barnett MP again on 31 May 2000, by Keith Locke MP on 1 June 2000, and by Nandor Tanczos MP on 14 November 2000. Here is an example by Jeanette Fitzsimons MP:
―Tim Barnett has argued that the different treatment of same-sex partnerships is contrary to the Human Rights Act and is clearly discrimination on the grounds of sexual orientation. I think that the select committee should also look at whether the Human Rights Act, which prohibits discrimination on grounds of marital status, is contravened by the different standards for the sharing of property that this legislation proposes for de facto couples as compared with married couples.‖ [6 May 1998, 567, NZPD, 8282]
The legislation was also alluded to by Belinda Vernon MP (4 May 2000). Richard Prebble MP, , perhaps not entirely coincidentally, was the last to raise the point. It was
168 Note ―unanticipated reactions‖ above at p.138. Round also describes such phenomena associated with delegated law making (see footnote 5):
―When, in the making of the State-Owned Enterprises Act, reference was first made to Treaty principles, it was accepted by politicians that this was a task to fall to the judges. Politicians opened the floodgates...Mr Prebble describes the consternation in the Beehive, even among well-known
constitutional experts, when the Court of Appeal decided in New Zealand Maori Council v Attorney-
General that section 9 of the State-Owned Enterprises Act was not just the meaningless lip-service which its caring Parliamentary advocates had taken it to be.‖ (Round, 2000, p. 654)
in the context of proposed different treatment for Maori [21 November 2000, 588, NZPD, 6722].
In the rhetoric of the debate, the Human Rights Act 1993 was used to argue for equal treatment of de facto and married couples, although discrimination as described under part 2 of the Act focuses on employment and other matters, apparently not including relationships. If so, then the passage of one piece of legislation with one intention is used later as a justification for some other, originally unintended purpose. This would then be an illustration of the sort of effect referred to as historical institutionalism by Pearson (1996).
If relationships are to be included, then it may be that the relationships intended to be included under the property relationships legislation would not include all the types of relationship for which the Human Rights Act is relevant on such a possibly broader interpretation. Debate on the scope of the legislation is included in the next subsection, which looks at discussion on the use of the term equity.