Laws 214: Tikanga Maori and State Law

Two main kaupapa discussed:
- Role of Tikanga Maori in state law and criminal law historically.
- Underlying principles of why certain behaviors are criminalized.
Preview of future discussions on Tikanga Maori as a form of criminal legal sanction in upcoming weeks (weeks 3 and 4).
Additional topics:
- Codification of criminal law in Aotearoa.

Tikanga Maori historically excluded from state criminal law (Te Tatai Turei).
Criminal law’s orthodox approach does not allow Tikanga as a source of criminal law.
Reasons for exclusion are debatable; critiques will be discussed.
Readings include works by Moana Jackson, a notable Maori legal thinker.

Moana Jackson's critiques:
- Tikanga Maori is an established legal framework.
- Tikanga defined as a framework of collective relationships leading to reciprocal obligations.
- Importance of collective nature and reciprocity in understanding Maori criminal law.
Historical legal cases in New Zealand: disputes involving purely Maori parties.
- Early cases involved murder disputes entirely within Maori communities.
- Courts’ jurisdiction was previously unnecessary in these cases, with magistrates only intervening in crimes involving non-Maori parties.
Notable cases: Rangita Piripiri and RN Native, showing state legal intervention into solely Maori disputes.
Fenton's quote emphasized cultural superiority, suggesting English law’s primacy over Tikanga Maori.
Jackson's view: Claims of Maori society lacking law due to absence of Western judicial structures are misconceptions.
- Critique of Pakeha assumptions about Maori law and its continued existence.

The Mason case (2012) remains a core precedent concerning Tikanga in criminal law.
Justice Heath’s ruling highlighted the questions:
- Did Tikanga survive the imposition of a statutory system?
- Statutory sections of Crimes Act 1961 that dictate New Zealand's criminal proceedings.

Section 5: Applies to all offenses tried in New Zealand.
Section 9: No conviction under common law or previous English law.
- Implication of extinguishing old non-codified criminal laws.
- Debate: Does this include Tikanga Maori?
Heath’s conclusion: Crimes Act restricts offenses to those defined by New Zealand statutes.
- Tikanga Maori cannot be considered in convictions.
- Importance of determining the viability of Tikanga under the current statutory regime.

Determining the viability of Tikanga in serious crimes presents challenges, such as:
- Establishing continuity of custom.
- Choosing a legal system to operate within (Tikanga vs. statutory system).
Heath’s judgment deemed the existing framework unfavorable for incorporating Tikanga in determining guilt.
Noteworthy critique from Annette Sykes on the perceived inability to ascertain Tikanga.

Aotearoa has a partially codified criminal law system.
Purpose of codification:
- Ensure clarity and accessibility in criminal law.
- Addresses criticisms of common law systems.
Initial codification established with the Law of 1893 (Stephen Code).
Major update: Crimes Act 1961.

Despite attempts for clarity, codification does not offer a complete solution.
- Poorly drafted legislation may still exist.
Case study on ‘Ram raids’ legislation:
- Reactive lawmaking in times of moral panic without addressing existing legal provisions.
Example provision: Aggravated wounding or injury within the context of ram raids.

New Zealand lacks a general part of criminal law like some jurisdictions.
General part would outline common rules for specific offenses.
New Zealand’s specific part provides offense definitions but lacks comprehensive guidelines on principles like intention.
Historical attempts to develop a General part failed (1989) due to judiciary and legal community pushback.

Two approaches to understanding criminal law:
- Positivism: Law as a set of rules.
- Natural Law: Law reflects morality and societal values.
Historical cases like alcohol prohibition and homosexuality highlight shifts in moral perspective impacting criminalization.

Core question: What behaviors should be criminalized?
- Considerations of harm and morality are paramount.
- Examination of the different influences on defining criminal behavior.

Complex interrelations between Tikanga Maori and state law noted throughout historical context.
Ongoing debates regarding the presence of Tikanga in New Zealand criminal law systems, reflecting broader societal values.
Future lectures will further unpack these topics and their interplay in defining criminal behavior and legal systems.

Examples of behaviors previously deemed criminal (e.g., wearing masks during the COVID pandemic) illustrate evolving definitions of harm and legal classifications.
Discussions on the ethical implications surrounding individual liberty versus societal protection continue to shape the legal landscape.