Law Exam Notes
Sources of Law
English Law and Tikanga Maori
English law and Tikanga Maori are key sources of law in this country.
There are some similarities between the two, such as group-based decision-making and differentiated sites of power.
Significant differences emerged later, particularly evident in the study of Parliament, equity, and common law.
English law relies on the concept of power represented by a monarch.
Maori sources of law emphasize land, occupation, and the position of land.
Whakaputanga and Te Tiriti o Waitangi
Whakaputanga (Declaration of Independence) and Te Tiriti o Waitangi (Treaty of Waitangi) are major constitutional moments in New Zealand history.
Te Tiriti o Waitangi (English version) informs a particular concept of sovereignty.
Whakaputanga reveals a move towards the concept of a nation-state.
Key Themes: Sovereignty and Power
The Concept of the Sovereign
The concept of the sovereign is central to the English legal system.
Justice, peace, war, land use, and ownership are vested in the sovereign.
This contrasts with the Maori legal context.
Controlling Power
Constitutional power requires more than just force.
The rule of law is essential for controlling power.
Understanding the purpose of the rule of law is more important than reciting Lord Bingham's factors.
The rule of law protects against arbitrary power.
Regulation of Human Activities
Not every human activity requires legal regulation.
Certain activities necessitate regulation.
The development of Pacific legal systems provides insights into this.
Functions of Law
A legal system should be able to carry out specific functions.
Dispute resolution mechanisms are a critical element of any legal system.
Legal systems vary in how these mechanisms operate.
Tikanga Maori as a Legal System
Legal Norms
Tikanga Maori includes legal norms that drive behavior.
These norms impose obligations on people to act in certain ways.
Examples: Mana, Whanaungatanga, Kaitiakitanga.
Failing to uphold these norms results in consequences.
Whanaungatanga: Legal norm that requires obligations to impose action in a certain way.
Legal Practices (Ritinga)
Legal practices like Rahui and Hui are driven by legal norms.
Rahui: A practice that has survived and is thriving.
Hui: Decision-making gatherings that are also surviving as legal practices.
Example: Kaitiaki exercising Kaitiakitanga to protect shellfish beds may impose a Rahui.
Connection between legal norms and practices.
Key Institutions of English Law
Equity and Common Law
Equity and common law are key institutions of English law.
Equity: A body of principles and remedies that originated from the king's justice.
Common Law: What the features of common law are.
Common law and equity are now connected, with one judge able to issue both equitable remedies and common law damages.
Parliament
New Zealand has a strong concept of parliamentary supremacy.
Parliament is supreme over the monarch.
Parliament can enact unjust laws, subject to public sentiment.
Historical Development
Common law, equity, and parliament are deeply integral to the notion of the sovereign.
Understanding this development is crucial for understanding Te Tiriti o Waitangi and the Constitution Act 1852.
A particular vision of sovereignty came through the treaty.
Test Structure
The test structure is the same as last year.
Open book format.
36 marks for short answers (2-3 sentences per question for questions 1-7, 4-6 sentences for question 8).
54 marks for two essays.
One essay is a scenario about Te Kang a Maori.
The other essay is a traditional essay.
Essay Writing Tips
Focus on the quality, not the quantity, of writing.
Use paragraphs to show clarity of thinking.
Allocate time based on the marks and time available for each question.
Avoid cutting and pasting large sections of text.
Be direct and clear in language.
Keep sentences short.
Break down essay questions if possible.
Use instructional words like identify, explain, outline.
Short Answer Examples
Example 1: Te Tiriti o Waitangi and the Treaty of Waitangi
Question: Explain why it is possible to refer to both Te Tiriti o Waitangi and the Treaty of Waitangi.
Simple Answer: One is in English and one is in Maori.
Deeper Answer: Both communicate slightly different concepts due to the different languages, and they don't necessarily cohere well together.
Example 2: The Rule of Law
Question: In two to three sentences, explain what kinds of problems the rule of law is supposed to prevent.
Answer: The rule of law is supposed to prevent the arbitrary use of power, such as misuse of official discretion.
Marking Rubric
Generous marking approach.
Points are awarded for getting something right or making an effort.
Full marks require a good basic understanding communicated well.
Factual misunderstandings won't necessarily result in significant point deductions.
Scenario Question Example
Scenario
A coastal village on the West Coast of the North Island with many visitors and abundant seafood.
In 2013, a heavy storm caused a fishing boat to get into trouble, and one person was swept away and presumed drowned.
The local hapu committee met to discuss the issue, worried about the possibility of a dead body being close to seafood available for harvest.
Questions
What kind of solution could Tikanga Maori offer considering:
The relevance of the practice of Rahui.
A Rahui, being a temporary prohibition, can keep people away from an area so that there is no danger of ingesting contaminated seafood, or traversing the affected marine area. this would be a kind of Rahui in the case of death.. There are different types of Rahui -Conservation Rahui also apply. these are the two most recognisable ones.
The relevance of Tikanga principles of Mana and Tapu.
Tapu: The possibility of a death can invoke Tapu. There should be an understanding for the people to avoid contact, or ingesting anything contaminated from the affected area.
Mana: The local Hapu committee must take accountability (Mana) to ensure that a Rahui is put in place so nobody randomly collects food, or traverses the area.