Part B & D Flashcards
Natural Law Theories
- Certain moral principles and exist regardless of time, culture, government, etc.
- These principles should underline human laws, sources include religion, nature, reason, humanity.
Law is subordinate to morality. - Hard to derive “universal goods” everyone can agree on.
- Can be considered subjective rather than objective.
Part D:
Police Powers: Knowing that evidence you have is viable for a case.
Deviation: Changing attitudes regarding homosexuality. Bowers v Hardwick 1986.
Crisis: Right at the time to protect others, but does it protect HR’s? Detention of American Japanese, CCE, Parihaka
Legal Positivism
- Any law made by authority and correctly passes through law-making process is law.
- Only concerned with whether or not law is applied. - No relationship between law and morality.
- Grudge Informer Case. Wife reporting her husband. Correct at the time according to Positivism.
- Not concerned with good and bad law nor how law came to be.
- Assumes people only follow law from fear of punishment. Can relate to natural law theories.
Part D:
Powers: Bypassing the law. R v Hamed 2011.
Crisis: Ok so long as proper legislation, but is it “good” law? Detention of Japanese US citizens, Parihaka, CE
Tikanga Maori
- Commonly understood principles aiming for balance.
- Bonds between people, ancestors and environment. Interconnectedness.
- We are here to govern environment, not take ownership of it.
- Tikanga changing as values of Maori become influenced by others.
- Takamore case - should the wife have buried husband in Maori land?
- Has elements of natural law and of positivism. Rules that must be adhered to (P) as well as moral principles (N).
Part D:
Cultural Defence: Maori belief regarding Tikanga could justify the actions in Police v Minhinnick.
Feminism
- Law not as fair as it is portrayed. Problem with the “neutrality of law”.
- Law is biased and shaped towards to a certain “model” legal person. Middle-class white man demonstrating a middle-class masculinity.
- Law cannot be truly neutral if it doesn’t consider people who don’t meet this.
Part D:
L24: Criminal justice system protects defendant, but what if not ideal defendant?
Deviation: Bias against model legal person. Bowers v Hardwick 1986.
Cultural Defence: Bias against cultures that don’t meet legal person. Police v Minhinnick 1978
Critical Legal Studies (CLS)
- Law = politics. Shaped by the middle-class white males who have power and cater the law around themselves.
- Law connected to power, so can’t be truly neutral and objective.
- Appears to be neutral, because we deny its contradictions.
- Criticises current law system, but doesn’t offer an alternative.
Part D:
Crisis: Those with power shaping the law in times of crises to themselves. CCE, Parihaka, Japanese in US.
Immigration: Those with power protecting themselves over Chinese and Samoan when it is of benefit to them
Legal Realism
- Judges at prime position to enforce “good”.
- Judges don’t rely on legal rules and reasons as much as we think.
- Not natural morality but based on consequences of law on actions.
- Judges more influenced by political and moral intuitions than we think. More discretion than we think e.g. Fitzgerald v Muldoon, Finnigan v NZRFU, Lands Case.
- More subjective compared to positivism. More subjective such as natural law.
Part D:
Powers: Courts drawing lines in the law of when police can invade privacy. R v Hamed
Cultural Defences: Some judges offering more discretion for cultural defences than others. Police v Minhinnick
Third World Approaches to International Law (TWAIL)
- Clear gap between first world countries and third world countries.
- Seeks to eliminate aspects of TW helplessness through International Law.
- Anti-hierarchical, counterhegemonic, suspicious of universal truths and creeds.
Part D:
L24: Law protects defendant, but in third world countries, not as able to protect as in first world due to amount of services available.
Immigrants: Specifically targeting Chinese and Samoan people when they are not of use/to protect Pakeha.
