Legal Theories: Natural Law:
Everyone possesses an intuitive understanding of what is moral and immoral
Laws formalise these moral principles
Sourced in Christianity (Augustine and Aquinas), than rationality (Descartes and Dawkins), then Universal Human Rights- belief that law is founded on an unchanging factor outside law itself, that there is a natural order of things (Aristotle). Due to historical relationship between religion and politics i n the Western World Law is valid depending on and subordinated to its adherence to logical or moral rules outside the system, a division between fact and value.
Law based on Universal Human Rights assumes a ‘common understanding’ in Preamble.
Assumes a value consensus- not present in multicultural societies. Natural law is of a subjective nature. Forces a specific morality on others.
Morality is still relevant. People bring about change when there is a strong moral consensus. Can be seen as conservative or radical.
Positivism:
Moral standards are irrelevant to law’s v alidity, it is amoral. Although many laws will be
moral, some will not.
Validity depends on whether it was created in the appropriate manner (John Austin), whether by parliament or by a sovereign, this is the higher rule or norm.
Assumes most people obey the law for fear of punishment, not for moral reasons.
Circular argument, positivist law is self-validating. And is valid because it has been habitually obeyed.
Kelsen’s Pure Theory of Law focuses on a fundamental norm (grundnorm)- the structure of
the law to the t he exclusion of its substantive content. Extreme view and no regard for justice can be problematic-post WWII Germany. Reliance on retrospective law to remedy blatant injustices is seen as odious.
Hart’s Rule of Recognition - law gains its validity from its widespread acceptance by officials
and law enforcers, not its structure only. Law is valid if it is felt by the majority and not victim specific.
New Zealand legal system is a combination of both. Law only becomes valid once it has passed the legislative process, but because of the representative nature of parliament, the morality of the people directly shapes the direction of the law. Foreshore and Seabed Act 2004 is an example of neglect of morality.
Realistically, law must follow some form of moral code.
Tikanga Maori Perspectives:
Thought of as a set of norms that maintains law and order in i n customary Maori society. But is actually a holistic system which regulates all aspects of life. Similar to natural law in that it is sourced in spirituality and assumes a value consensus consensus shared by all Maori.
Core values include concepts of utu, mana, whakapapa (geneology connecting all things) and whanaungtanga (relationships with family).
This can be equated with Pakeha notions of justice, fairness and equality and coexistence of both value systems is possible. Tika-straight, correct, fair. Emphasis on maintaining and restoring balance. Not a written system, passed on by word of mouth, therefore it is flexible and adaptable and very much dependent on context. Principles oriented not rules based, but drew on precedents. Equated with Pakeha notions of individualised justice and common law applications.
Oxford Dictionary definition of law: “body of…rules recognized by a community as binding.”
Clearly different from European law in approach to land. See themselves as members of the environment through whakapapa. What is given is returned, cycles of nature through utu. Land has an ancestral title and could not be obliterated as it was a link between all generations, past, present and future. Collective land rights not individual, saleable title.
Criticised for being stuck in a pre-treaty era. But Tikanga is adaptable to the contemporary context, and has already adapted to a certain extent due to colonisation. The extent to which it can be adaptable without contradicting its fundamental principles is questionable.
Breach of Tikanga is believed to be punishable by the gods, but also belief in self-regulation and restorative justice. Offence occurs due to imbalance not entirely the fault of the individual, is a shared responsibility.
Certain Tikanga concepts are now accepted in New Zealand law, but their scope is limited to what the British law is willing to accommodate for.
Legal Realism:
Judges are influenced by non-legal factors. Sees the importance of context and discretion, their political and moral convictions.
Judges react to the underlying facts of the case regardless of whether they are legally significant.
Evidence in the fact that different judgements are reached in applying the same legal rules and relevant facts.
Reject absolute values such as justice, all decisions are subject to pragmatism.
Impatience with theory, concern for the result of law.
Critical Legal Studies:
Law is not impartial. The state does not equitable represent the interests of all. It will always be wedded to power, so those who seek to control the law also seek to further their own power. Influenced greatly by the biases of the people creating it, who are often unrepresentative of society. Law maintains their ascendancy and own power in an unequal society through not only legislation but also tribunals and bureaucratic agencies.
Any unrepresentative factors are considered to be temporary eg. 1/5 US senators are millionaires.
Value antagonistic approach recognises the differences between the strata in society. Every society exercises a constraint on some of its members by others.
Throughout history, few legal systems have actually been value neutral, eg. Feudalism and Christianity, monarchy and conservatism. Therefore the liberal democratic state may actually be serving the interests of a specific group also. Claim of a universal foundation of law based on reason gives it false legitimacy. Exposes the gap between rhetoric and reality
Law is politics: legal reasoning is not objective, and subject to specific opinions.
Seeks to protect the underdog or minority from the elite or majority.
Criticised for lack of offering solutions.
Beginning in 1846, a slave, Dred Scott, sued for his freedom under U.S. Law.
In 1857, the judges of the U.S. Supreme Court , a majority of whom came from slave-owning families, voted 5 to 4 that blacks were not citizens (and so not covered by the constitution).
Feminism:
Believes historical patriarchy still has remnants in the current legal order. Sex and class is built into law.
Law is not rational, fair and objective.
Challenges the conventional view that law does not operate with a specific type of person in mind. Legal model of the person is a monied, educated, middle-class man.
Sexism originally existed in laws to do with abortion, rape and pornography. Rape within marriage was not a crime in NZ until 1991. Challenged formal inequalities.
Now feminist analysis is revealing more subtle sexism in contract, tort and family law. Formal equality can be unfair to women. Examples of improvements have been the battered women’s syndrome defence in court of
Appeal Ruka case which quashed fraud convictions. 2009-provocation removed as a murder defence-good for women.
This is because males create law, there is a male culture in law, and the principles of law such as rational, dispassionate, consistent, value-neutral and objective are arguably masculine.
TWAIL:
Critical Legal Studies on an international scale.
Sees the influence of colonialism as continuing through current legal system.
Law is not objective and equal in treatment of all classes, races and cultures as it claims to be.
International law has originated from European thought, history, culture and experience and has been forced upon non-European peoples as something that is universally rational. It has been the main tool in the spread of Eurocentrism and rejects the moral equivalency of cultures and diversity.
Third world is still bonded legally, politically and economically to the west. The United Nations is a creation of western nations, as are the ideas of human rights, and the UNSC is dominated by western nations. The UN is seen to advance the foreign policies of western powers through its organs, eg. NPT and humanitarian intervention.
The Bretton-Woods model of IMF and WB require third world nations to subject themselves western notions of privatisation and market liberalisation in order to be able to receive loans and aid, although these have been shown to be detrimental to development.
The concept of property: Private Property:
Property creates certain kinds of relationships between people and give certain people power over others.
Locke believes the earth has been given to humans to appropriate by god. By mixing his own labour with nature, man makes it his property, where there is enough left for others. Resources are not meant to be left in common-Eurocentric view(Natural Law)
Thus all lands not occupied in NZ were declared wastelands and the property of the crown, even after their recognition in the treaty. Application of Lockean principles not accepted by Maori.
Chambliss and Seidman criticise this now discredited Lockean view- Has been an important factor in the rise of corporate power, protecting companies against theft. (CLS)
Goes against the concept that people should receive the fruits of their labour, this being owned by the employer. (CLS)
But law still based on Lockean principles.
Maori approaches to property:
Sourced in Tikanga and difficult to reconcile with common law (CLS)
There is a holistic connection between whenua, humans, gods and everything. Whenua also means placenta or afterbirth and there is a belief that when one dies, one rejoins the land. It must therefore be guarded and protected.
The Maori saying ‘noku tenei whenua’ literally means this is my land but the particle o
indicates the possessor does not have a control relationship.
Maori worldview is communicated through myths, which contain not literal but ideological truths. Emphasis on protection and balance, as well as collective ownership and responsibility.
CLS:
Conflict between Tikanga and European approaches means European views take precedence in our current legal system.
Although the Treaty guaranteed the Rangitiratanga to manage their people and the environment, the Court of Appeal and Privy Council decisions have maintained the cultural and legal meanings of the English text.
Thus the kawanatanga of the Crown has been interpreted to mean sovereignty and the right and responsibility to hold the underlying title.
Tino Rangitiratanga is subordinate to Crown title and can only restrict crown power if provisions are made in statute.
Even the principle of ‘partnership’ which has arisen from interpreta tion of the first and
second articles of the treaty is balanced in favour of the crown in that it legitimises the
functions of government but Maori do not sit parallel and equally, Crown has fiduciary duties. This may be because it was an invention of the (biased) courts.
Maori resource management and autonomy over tribal land is only accommodated for where there is space in the law.
Even ‘tangata whenua management areas’ are subject to the sovereign regulation of the
crown through council planning and are not exempt from the RMA 1991 scheme. Eg. Pukaki and Ngati Te Ata groups on the Manakau harbour are subject to abiding by the Auckland Regional council Policy Statement. The Ngai Tahu Pounamu Revesting Act allows iwi to control licensing of pounamu removal but the side effects are still controlled by the RMA.
Maori environmental values have been undermined. Removal of hapu and iwi capacity to regulate resource use shows imbalance in legal and political structures, representation and constitutionalism.
The Waitangi tribunal criticised the RMA to be in breach of the ToW and principles of the treaty in not permitting rangatiratanga.
Haddon v. Auckland Regional Council 1994: identity of local hapu was bound to the sands of Pakiri beach which they exercised kaitiakitanga over. But this was overruled because it was within the provisions for kaitiakitanga in the RMA, and consultation with tangata whenua is encouraged although not mandatory.
Maori recognition of spiritual value of resources cannot be accommodated for as prevailing attitudes see them for their economic and social values. RMA currently recognises Maori culture as one of 7 matters of national importance (s.6). and gives regard to Kaitiakitanga in s.7 although this definition is criticised as being too open to judge interpretation and was amended in 1997.
WT Ngawha Geothermal Resource Report 1993 recommended that people acting under the RMA should act in a manner consistent with the ToW. Not incorporated by government.
+SEALORDS Private Property and the Criminal Law:
Criminal law was established to protect property when parliament was only comprised o propertied men, yet has remained the same. Class that used to control Parliament still favoured in contemporary law as most crimes in the Crimes Act 1961 are still crimes against property (CLS) Death sentence and public executions for crimes against property. Glorious revolution was the freedom not of men but of men with property, sharp increase in number of capital statutes. New statutes often reflected personal interests of a few members. Eg. 1753 Act for hanging for stealing shipwrecked goods brought in on behalf of the Merchants, Traders and Insurers of the City of London. Capital punishment for breaking into linen companies because these were owned by members of parliament.
Food riots being made punishable by death did not take into regard the poor who were having grain removed from their parishes.
However, actual number of executions did not increase because of judge discretion, use of the royal pardon to display mercy and fear of committing judicial murder (Realism)
Law simultaneously promoted the interests of one class, while proclaiming impartiality and absolute measures of justice.
Balance of justice, terror and mercy meant the majority remained obedient and grateful to the codes of the ruling class.
Today:
Unemployed are socially portrayed and labelled as dole bludgers and criminals. No regard to depressed state and impact on self-image.
NZ society is highly economically stratified while perpetuating the myth that it is egalitarian.
Capitalist economy relies on fear and obedience.
Structurally powerful groups have more resources to shape discourses and stereotyping in their favour. Tax dodgers present tax laws as being unjust and against their rights through discourses and phrases such as ‘high taxes remove incentive’.
There are no facts to prove that progressive taxes are injurious to incentive.
Women as property:
Traces of patriarchal law still exist in contemporary law which has a fundamental structural bias.
Historically, the legal existence of a woman is suspended during the marriage, husband took responsibility for wife’s actions during marriage.
Legal inequalities included not being able to devise lands to her husband, and the husband being able to give his wife moderate correction within reasonable bounds (common law rule of thumb), legal custody of children appointed on father’s will not according to widow.
Nowadays, Duke v Symonds 1980, a man can sue for loss of wife to another man as if she were an object to be bought and sold, and leaving was not her own choice. $26000 in damages awarded.
However, today there is a condemnation of domestic violence in law, revealing past positivist approaches to be invalid?
Water as Property:
Introduction of water as property in Bradford Corp v. Pickles. Early capitalism resulted in recognition of property right to detriment of community.
Establishment of UN Advisory Board on Water and Sanitation in charge of developing water management strategies to promote equitable access, has eminent persons from the private sector, media and civil society on it. (CLS)
El Alto, Bolivia privatised water 1997-Aguas del Illlmani failed to extend water and sewage service to tens of thousands of families in outskirts, prices up by 35%. Establishment costs more than 6 months of minimum wage.
Public revolt to cancel the contract but El Alto threatens legal action, they were not obligated to extend access and there is a lack of compliance to the contract on the part of the government (Positivism). Minority of shareholders are an arm of the World bank (CLS)
WB and IMF controlled by European nations, they promote privatisation in Third World Nations by multinational corporations which is usually disastrous (CLS and TWAIL)
Cochabamba- Within weeks of privatisation, rates were hiked up as much as 200%. Bechtel filed $25 million legal action in WB trade court against Bolivia when ousted but agreed to drop under heavy international pressure (failure of Positivism). UN declared human right, but the poor cannot afford market prices (Natural law) Even if un-privatised, costs of extension still remain, approx $25 million in El Alto. Have to be covered by somebody. Metrowater Ltd v. Gladwin-Doctrine of Prime Necessity, common law doctrine cited as Mr Gladwin had refused to pay for things other than water itself. Those in control of a resource have a duty to provide it. (common law)
Commerce Act precludes this doctrine, as price control occurs on the initiative of the minister, not through individual applications to courts. Parliament was unwilling to apply regulatory intervention through the courts. Statues override common law to support privatisation (CLS)
Local Government Act 2002 Amendment Bill, allows private sector involvement in delivery of water services to enter into contracts of up to 35 years, although this is technically not called sale or privatisation and the local government is still nominally responsible for provision, although does not have to retain control over management. Privatisation under a different name-manipulation by those in power (CLS).
Privatisation does not always mean cheaper services and better infrastructure, many have failed and burden specific users. Eg, Tampa Bay, Florida. Evidence is ignored by parliament (CLS)
Even Locke believed the appropriation of water supply was impossible.
Law and Rights: Criminal Justice Process:
Not all people have equal access to a lawyer. Many argue that the income required to qualify for legal aid is too low, cultural inflexibility, language and informational difficulties. (CLS)
Women not always able to find legal services which take into account their circumstances and needs, and the fact that gender matters (feminism)
Name suppression granted preferentially (Realism). Popular attitudes affect sentencing, sentencing reform. No consistent morality, although law follows morals of the time (Natural law). Penal populism advanced by the media and politicians against a certain type of people and visible minorities. Manipulates public opinion to justify meeting certain agendas. Eg. passage of Victims’ rights Act 2002 and parole reforms(CLS)
However, Sentencing Act 2002 still conservative in that it does not provide numerical guidelines but principles for judges to consider.
Judges have wide powers of interpretation and discretion eg. Whether to allow open justice. Even judge interpretations of statute and common law have to consider public opinion at sentencing.
Police have discretionary powers of diversion.
Individual Rights and State power:
New Zealand Bill of Rights Act 1990 acknowledges foundations in Anglo tradition and human rights (Natural Law)
Judiciary perceived to defend individual rights against state power.
Can declare statutes inconsistent with BoRA as in the UK.
Although it is an ordinary enactment, it has constitutional status and has called previous judiciary interpretations of statutes into question eg. Marriage Act 1955, is also carefully considered in drafting new legislation.
No special repeal laws but this does not derogate from it’s the significant of its fundamental rights.
Police are subject to certain rules when searching or arresting, must have warrant and not be on private property.
Homosexuality and the Criminal law:
Law is subjects to changes in morality. Should it reflect current beliefs or uphold timeless rights?
Tolerance of homosexuality has fluctuated throughout history. Condemned when religion prevailed, and now more tolerated in western countries because of human rights (Natural law).
Wolfenden Committee report 1957 recommended the decrimilisation of consensual homosexual acts with social movements, recognition of rights and liberty.
NZ inherited anti-homosexual laws from England with the Offences Against the Person Act, continued in the Crimes Act 1981 until the Homosexual Law Reform Act 1986. Although prosecutions had been becoming less frequent and were almost non-existent by 1980-police discretion.
Social pressure of minority group right movements and acceptance of homosexuality in popular culture led to pressure for legislative change.
Claims that homosexuality is inherently wrong panders to a certain christian morality being imposed over others (CLS)
In the US, homosexuality was prohibited in all states until 1962, now half have decriminalised it. Bowers v. Hardwick 1986 did not recognise the forbidden conduct as a fundamental right, and the Chief Justice cited Judaeo-Christian moral and ethical standards in reaching this decision (CLS). Texas v. Lawrence 2003 overruled this decision, citing personal liberty and right to privacy (legal realism) Weakness of moralised laws in that it is never objective and consistent, questioning the validity of law at any time.
Cultural defences:
Criminal law embodies the values of the majority (CLS)
Is equal justice equitable?
Equality among different cultural groups requires each respect other’s right to be different
to the extent where socialorder can still be preserved. Also prevents despotism and tyranny (CLS)
The need to balance individualised justice and cultural pluralism with establishing common values and bonds, consistency and security.
A proper scope of the cultural defence has to be defined.
A cultural defence is not a legal defence, but the judge can take into account cultural factors to mitigate sentence as part of their exercise of discretion (Realism)
Cultural evidence serves to further insanity defence, or negate intent.
Prevents society imposing certain common values (CLS)
Yet some practices cannot be enforced in any circumstance against the will of the individual eg. female circumcision in NZ, yet NZ law also supports individualised justice so is not an extreme rejection of the cultural defence (positivism)
Recognition of ignorance of the law creates inconsistency as it is not normally recognised as a defence. However, exposure to socialising institutions can reasonably be assumed in all normal cases. Liberals face a challenge, in recognising cultural differences, in many cases they are undermining feminist agendas, as many cultures diminish the status of women (feminism). People v. Moua. Kidnapping and rape decreased to false imprisonment. Mistake of fact- he believed he was marrying by capture and being encouraged when he was actually carrying out rape. Aristotlian logic that ignorance of particulars negates criminal intent, although goodness of motive is not usually a criminal defence.
People v. Chen. Murder decreased to manslaughter because of diminished capacity exacerbated by cultural unacceptability of wife’s infidelity. But this was appar ently 2 weeks after he found out not in flagrante delicto, had time to think about it. Also this cultural viewpoint is not homogeneous.
People v. Kimura. First degree murder reduced to voluntary manslaughter with suspended sentence. Oyako-shinju treated as it would be in modern day japan. Cultural defence would have worked to Kimura’s detriment as it would have proven intent. Insanity defence claimed
with psychological evidence. Homogeneity proven through petition of 25,000 from Japanese American community.
Legally and ostensibly, culture was not a defence, however, the indivisible role of Japanese children from parents was taken into the judge’s discretion.
NZ-Police v. Minhinnick. Theft of New Zealand cross. Colour of Right defence-an honest belief that the act is justifiable. Cultural defences rely heavily on honest convictions, which can be manipulated by lawyers.
Invaders, Illegals and Aliens:
Chinese Immigration Act 1881. Imposed poll tax of 10 pounds, one Chinese passenger to ten tons of ship cargo, increased twice 1888 and 1896.
Chinese excluded from Old Age Pension Act 189 8, Widow’s Pension Act 1911, from deciding
closing hours of shops in Shops and Offices Act 1904 (CLS)
Immigration policy was used to find particular kinds of workers, dictated by economic requirements. This means they were channelled into narrow sectors of the workforce, making their exclusion and discrimination easier.
Laws are relaxed when there is a surplus of jobs and labour is needed, tightened when there is perceived shortage of jobs. Law is subject to social changes and what is convenient for the majority or elite (CLS)
Negative perception of immigrants that they are responsible for social problems, competition for jobs and cultural decline leads to legislating against them. In reality economic problems are usually the result of structural changes and not immigration (CLS). British and European recent immigrants not discriminated against due to similar appearance. Dawn raids against Samoan overstayers similar to tactics against jews with dogs, but was valid because it was law (Positivism) Immigration policy against overstayers, although valid, is not empathetic towards the challenges faced by them. Citizenship (Western Samoa) Act 1982 overruled Privy council ruling in Lessa case granting citizenship to all Samoans born when Samoa was under NZ administration (Positivsm)
Petition of 100,000 for repeal rejected in 2004 (CLS)
White Australians see themselves as controlling the relationship between the internal Other and the external Other (CLS).
2008 Government introduced a citizenship test which tries to enforce a particular culture on prospective citizens. Government says the influences of the culture are judeo-christian ethics, British political heritage and Irish and non-conformist attitudes. There is no reference to indigenous culture or multiculturalism. They are trying to promote an Anglo-celtic monoculture (CLS)
