Nature of Law and Legal Systems

Module 1: Nature of Law

Purpose of Law

  • Law often develops in response to problems within society, helping to create structured ways to respond to or prevent further harm.

  • The legal process typically follows this progression:
      - Identify a problem
      - Create solutions through law

Legislation vs Regulation

  • Legislation:
      - Laws created by parliament that establish the general legal framework.
      - Sets the main legal standards and is broad in scope.

  • Regulation:
      - Detailed rules that enforce the laws established by legislation.
      - Provides practical application and guidelines for specific scenarios.

  • In general, legislation precedes regulations, with regulations providing detailed enforcement of the law.

Rāhui (Tikanga Māori Concept)

  • Definition:
      - A rāhui is a temporary restriction imposed over a specific place or resource for its protection.

  • Purpose:
      - Protect wildlife or natural resources.
      - Allow recovery of ecosystems.
      - Respect cultural or spiritual values.

The Kereru Scenario (Lecture Example)
Background

  • A rangatira (chief) established a hapū (subtribe) centuries ago.

  • The descendants of this hapū are responsible for caring for a forest in Northland.

  • The forest is home to kererū (native pigeons), which are:
      - Culturally significant.
      - Spiritually valued.
      - An important traditional food source.

Nature of the Problem

  • Factors affecting the kererū population include:
      - Introduced pests
      - Land misuse
      - Increased human population
      - Increased hunting

  • Risks:
      - Decline in kererū populations and potential extinction.

Problem-Solving Process

  • A hui (meeting) was organized to discuss potential solutions.

  • As a result, a rāhui was instituted, prohibiting the hunting of kererū.

  • Following the rāhui, kererū populations began to slowly increase.

Tikanga Māori and the Legal System

  • Definition:
      - Tikanga Māori encompasses a system of values, principles, and practices that influence the legal system in New Zealand, particularly concerning environmental and cultural matters.

  • Roles of Legal Institutions:
      - Parliament creates legislation (e.g., wildlife protection laws).
      - Regional councils manage environmental and land-use regulations.
      - Courts assess penalties for breaches of laws.
      - Tikanga Māori asserts cultural authority in legal matters.

Foundations of Law: Values, Culture, and Ideas

  • Law reflects cultural values, spiritual beliefs, and historical context.

  • It is a cultural creation, rather than merely a collection of rules.

Philosophical Debate About Law

How Worldviews Shape Law

  • Our understanding of human nature impacts how we design legal systems.

  • If law is perceived as power to command, this reflects a belief in necessary authority to control human behavior.

  • Key Question:
      - What conditions must exist for legitimate authority over others?
      (Links to constitutional thinking.)

Constitutional Thinking: The Nature of Power

  • Core Questions:
      - What is power?
      - How should power be organized?

  • Consequences of Inaction:
      - Biodiversity loss, loss of cultural practices, risk of extinction affecting hapū and broader communities, as well as environmental impact.

Module 2: Sources of NZ Law

Rules vs Principles

  • Rules:
      - Specific directions outlining what must and must not be done, typically devoid of moral reasoning.
      - Examples include speed limits and licensing rules.

  • Principles:
      - Broad ideas that guide legal systems based on values or morality.
      - Laws can stem from principles; however, principles can exist independently of formal laws.

Customs vs Laws

  • Customs represent cultural expectations about behavior that may feel obligatory but lack formal enforcement.

Characteristics of Law

  • A rule is considered a law when:
      - It's created through a recognized system.
      - Maintained by institutions.
      - Enforced through formal processes.

  • Features of Legal Language:
      - Precise, context-specific, influenced by culture.

  • Laws are constantly evolving and defined by societal acceptance.

  • Examples of Unjust Laws:
      - Historical slavery laws, discriminatory laws.

Social and Legal Change

  • Law evolves alongside social structures, reflecting the need to regulate areas such as:
      1. Resource allocation.
      2. Social obligations.
      3. Harm prevention.

Features of Polynesian Societies

  • Prominent features include maritime activities, migration patterns, and resource pressure, leading to social changes and hierarchical developments.

  • There was a shift from matrilineal to patrilineal systems and increasing social organization and hierarchy.

Cultural Foundations of Polynesian Law

  • Hawaiian System:
      - Emphasizes interconnectedness with the environment and extended family groups (‘ohana).

Tikanga Māori - Key Concepts

  • Definition:
      - A set of beliefs and practices governing the affairs of individuals/groups, validated over generations but adaptable.

  • Core Concepts:
      - Mana: spiritual authority and power.
      - Tapu: sacred and restricted state with associated obligations.
      - Noa: ordinary and unrestricted state, balancing tapu.
      - Whakapapa: genealogy defining relationships and societal structure.
      - Kaitiakitanga: guardianship obligations towards land and resources.

Law Developments in Response to Change

  • Law mechanisms evolve to address:
      1. Resource allocation.
      2. Social obligations.
      3. Regulatory needs addressing harm, family, spiritual practices, and land use.

Module 3: He Whakaputanga and Te Tiriti

He Whakaputanga (The Declaration of Independence)

Purpose and Action

  • Designed to:
      - Strengthen relationships with the British Crown.
      - Foster international trade.
      - Prevent foreign claims over New Zealand.
      - Establish recognition and create a national flag.

Key Concepts in He Whakaputanga

  • Rangatiratanga:
      - Chiefly authority and independence.

  • Kawanatanga:
      - The function of governance.

  • Mana i te whenua:
      - Authority over land.

Limitations of He Whakaputanga

  • Did not include all iwi, particularly from the South Island.

  • Recognized a state, facilitating colonization; did not yield the expected political structure envisioned by Busby.

Te Tiriti (The Treaty)

Context

  • James Busby's declining influence leading to concerns about increasing settler activity and the lack of a legal framework to address disputes.

Articles of Te Tiriti

  • Article 1: Sovereignty vs. Kawanatanga.
      - Māori believed they were permitting governance; British saw this as complete control.

  • Article 2: Possession vs. Tino Rangatiratanga.
      - Māori envisioned retaining full control and authority over their taonga (treasures) versus the British perspective of preemption.

  • Article 3: Guarantees vs. Rights.
      - Aimed to maintain independence amidst concerns of settler activities and control.

British and Māori Contexts

  • British concerns revolved around land access, settlements, and the relationship with other nations, especially France.

  • Māori sought protection, control over their land and resources, and the continuation of their authority.

Conclusion

  • Highlights the complexities and contradictions between British imperial ambitions and Māori authority as defined in both He Whakaputanga and Te Tiriti. The ongoing debates reveal the struggle to maintain traditional governance alongside the pressures of colonial systems.