Part B Flashcards
What is Tikanga Maori?
Tikanga is a code for living - ‘tika’ = ‘right’. It is based on Maori values (in this way it is similar to natural law) that aim to keep spiritual, physical, social and environmental wellbeing in balance, with rules and processes to be followed (although not as rigid as legal positivism).
What are the core concepts of Tikanga Maori?
Utu - balance Mana - spiritual power and authority Tapu - sacred, spiritual restriction Whakapapa - bond between people, ancestors and the whole environment Whanaungatanga - kinship linkages
What are the main ideas of critical legal studies?
Critical legal studies critiques the law for being not neutral. The law exists to support the interests of the class or party that forms it and is a collection of beliefs that legitimise the injustices of society. The wealthy and powerful use the law as an instrument for oppression to maintain their place in hierarchies.
What are the ideas of legal positivism?
If a law is made in accordance with the correct law-making process, it is valid - law is amoral. People obey the law not because it is moral, but because they respect the authority of the law-making body and process.
What is TWAIL?
TWAIL critiques the international law as disadvantaging third world countries and enforcing Western hegemony - international law exists to support the hierarchy in which first world countries will stay on top. In this way, TWAIL is similar to CLS.
What is legal feminism?
Feminists critique the law as being structurally patriarchal, having inherent biases that subordinate women, and being fundamentally male in concept and foundation; for example, the concept of “the reasonable man.” The legal system in itself shows male characteristics, in that objectivity and impartiality are male traits.
What is natural law?
Natural law says that for a law to be a valid law, it must abide by moral codes. A universal code of morality allows humans to intuitively know right from wrong, and if law does not formalise these moral principles, it is not law. If a law conflicts with morality, it must be disobeyed.
What is a problem with natural law?
Natural law assumes that there is one universal code of morality, but this is not the case.
What are two problems with legal positivism?
One problem with legal positivism is that the law making system is self-validating - it is the correct process because it says it is.
Another problem is that according to legal positivism, if a law calls for behaviour that we consider immoral, we have to accept it. But what about laws such as the Nazi regime?
What is legal realism?
Legal realism stems predominantly from the USA where they have judicial independence. Realists argue that (a) judicial decision making is subjective, (b) the outcome of a legal dispute is not determined objectively but by “what the judge had for breakfast”, and (c) that it is possible to predict the outcome of a legal dispute by examining the behaviour ofspecific judges/courts.
