This post is intended to be brief. Recently I had drawn to my attention, via a post by David Marks KC,[1] a case in the Supreme Court of New Zealand which is interesting to illustrate, in judicial application, the continuing effect considerations of what the medievals might have called the bonum commune. At any rate, the development of the common law from the late Middle Ages to Blackstone, including the first lecture of his famous Commentaries, to more recent times, included an appreciation of this concept. However, demonstrating that is not what my purpose here is. While the facts of the case, X(SC 94/2024) v the King [2025] NZSC 175, are quite disturbing, the dicta in the case present for us an interesting demonstration of the relevance of public good considerations in contemporary jurisprudence. My object here is to present to you what the Court said, teasing out its analytical basis, and to offer suggestions for a more in-depth critical consideration of the concepts involved. More developed theorising is a matter for future pieces.
The case presented grievous facts, which some readers might find upsetting even in summary. It was a case of prolonged, daily, sexual abuse of a child by the hands of a stepparent, beginning at the age of 6, resulting in pregnancy at 15. “At 18 the abuse finally ended”.[2] The convict appealed, first to the Court of Appeal and then to the Supreme Court arguing that since (in his interpretation) the victim had forgiven him, the Judge sentencing him had “erred in principle by failing to adjust the sentence to take into account the views of the victim of his offending”.[3]
However, the Court of Appeal dismissed the appeal on these bases: first, the victims impact statement did not amount to a plea for leniency.[4] Second, “public policy issues” likely have pre-eminence in a case such as X and thus it would be “wrong in principle to impose an overly lenient sentence to give effect to a victim’s views just as it would be inappropriate to impose an overly severe sentence to give effect to a victim’s views”.[5] The immediate public policy issues were, in the view of the Court of Appeal, that the offence was so serious that there was a “need for a deterrent sentence”.[6] The Supreme Court agreed making the incisive statement that “crime is a public wrong and so the victim’s views are a factor that, like others, cannot normally overwhelm the outcome”.[7]
So, what is the proper analytical structure of the underlying principle in these dicta? The governing idea is that crime is a public wrong which therefore hurts the common wheal first though the immediate impact is felt by the victim. In what meaningful sense, however, is a wrong by one private individual against another private individual a public wrong? It cannot be merely because the State has declared it so, and thus it is simply a matter of legal classification between torts and crimes. For, in a sense the distinction exists before the State classifies it. For the Supreme Court in this case, it would be a question of public policy. That is, preceding the legal classification of the wrong as a crime (a ‘public wrong’) there is a choice of policy made by the State on what sort of behaviour it wants private individuals at large to engage in, transgressions of which are punishable by the public authority directly, and not only mediately – as is the case when the courts compel the wrongdoer to pay compensation in tort. Thus, on this reasoning a crime is a public wrong because it involves direct punishment by the public authority for contravening a rule enacted to promote or restrain certain behaviours in the public at large, which is nothing other than the mass of private individuals under its coercive control. I think this is the most appropriate way to rationalise the Court’s dicta about the public policy reason of a deterrent effect. At least, I think this is the sort of view which sits most comfortably with the desiccated jurisprudential-theoretical landscape which presently prevails.
We have, however, unmistakable vestiges of more substantial concepts of the public good in the dicta of the Supreme Court in this case. Given the brevity of the judgement, it would only be appropriate to make a few remarks on this. A fuller treatment would have to take up a lengthier case where public policy principles are discussed at greater length. Nevertheless, behind the juxtaposition of public policy with the individual victim’s views, besides the notion of the State exists the notion of the community which it governs. Now, this community is formed indeed of persons bound together to pursue the aims of the collectivity in order that persons may enjoy the fruits of common life. Giovanni Botero[8] and others following him[9] consider these aims to be justice, peace and abundance. For the ordinary lawyer such considerations seem remote. Indeed, it is well known that the slow development in jurisprudence since the eighteenth century, reaching its culmination in Austin and his positivist successors, has been to evacuate the law of most of its substantive content save for legislative will. Nor is it entirely clear why the public good should be conceived of in non-utilitarian or non-liberal terms.[10] The Supreme Court itself in X (SC 94/2024), inline with the jurisprudence across the contemporary Commonwealth and wider common-law world, by evoking “public policy” places itself in this tradition.
However, I think that the mere fact that jurisprudence is settled is not good enough grounds for leaving it so. I do not align with Professor Vermeule’s formulation of ‘common good constitutionalism’. That said, the utilitarian and purely positivist concepts of the public good in adjudication seem to me to be ill-equipped to provide sufficient safeguards for the dignity of persons. With such conceptions, it seems to me, that there will always be a limit case when the State would be permitted to override the dignity of people who were in minority groups, either political, intellectual, cultural, racial or ethnic or otherwise. This is doubly so if public policy considerations were to change to allow for this. The judicial power would be rendered helpless. That is morbidly ironic for officials solemnly sworn to “do right to all manner of people […] without fear or favour, affection or illwill”.[11] That is indeed, after the “laws and usages” of the nation,[12] but in order that right be done: the present state of the jurisprudence seems ill-fitted for this purpose. In certain circumstances it seems that public policy reasoning might lack the internal resources necessary to protect human dignity.
In the future I hope, at some point, to offer a more substantive account of how we may integrate a more developed notion of the public good into common-law jurisprudence while remaining faithful to our constitutional heritages and democratic values. This would be necessary, of course, for me to properly defend some of the suggestions I have tentatively made here which might puzzle some readers. I hope, however, that this post, taking lights from the New Zealand Supreme Court has helped you appreciate at least how public good considerations have still have some role to play in the business of judging, even today.
[1] David Marks KC, LinkedIn post (Nov. 2025) <https://www.linkedin.com/posts/davidwmarkskc_what-weight-to-give-to-a-victim-impact-statement-activity-7398913249129435136-8Y4B?utm_source=social_share_send&utm_medium=member_desktop_web&rcm=ACoAAE-eCQQBCtw6WbjY0mLiwWh42s5TY-PGmRY> accessed 20th December 2025
[2] X(SC 94/2024) v the King [2025] NZSC 175 [1]
[3] ibid
[4] Ibid [5]
[5] Ibid
[6] ibid
[7] Ibid [7]
[8] On this see the recent interesting article by Samuel Lindholm, ‘Giovanni Botero’s biopolitical populationism: Rethinking the history of biopower’ [2025] 0 Philosophy and Social Criticism 1-27.
[9] The most prominent recent writer using and adapting Bortero seems to be Adrian Vermeule in Common Good Constitutionalism, Polity Press (202
[10] cf. Brian Leiter, ‘Politics by Other Means: The Jurisprudence of “Common Good Constitutionalism”’ 90 University of Chicago Law Review 1685, 1687
[11] Promissory Oaths Act 1868, s. 2 (United Kingdom).
[12] ibid
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