Week 2: Law Flashcards
Each society develops its own system of norms and its complexity depends on
The relationships among members of the society and by the size of the society
The purpose of the law is to
Ensure peaceful existence among members of the society
In some cases it limits the rights of the individuals for
The greater good
Law is a set of norm that is developed to
Control, organize and regulate conduct and the relationship between people
Law in general can be defined as
A regime of adjusting relations and ordering human behaviour through the force of a socially organised group
Law is concerned with regulating
Human relations
How is law related to the built environment
- Promoting changes
- Facilitating changes
- Imposing changes
- Protecting the natural environment
- Protecting the community
- Protecting individuals
Why should a surveyor study law
- The spatial definition of land parcels is the responsibility of the surveyors
- Land ownership is legally defined (cadastre)
- Boundary definition is a legal process
- Land rights are protected or overridden by legislation
Surveyors and other land related professionals are required to have a broad understanding of
The land law and government processes
What role can surveyors have in land court proceedings
Expert witness in court proceedings
Any survey planning must be concentrated on
Law
Land tenure definition
To hold (in the sense of possess and control sometimes to the exclusion of others)
Land tenure is the relationship that individuals and groups hold with respect to
The land and resources
Types of official proceedings that can be defined by land tenure
Statutory law or customary norms
NZ law is based on what foreign regime law
English common law
NZ law is heavily influenced by
Maori customary law
Who makes law
- MPs in parliament
- Judges in court
- Academics
- Prime minister in cabinet
- Cops on the street
- Society by general agreement and compliance
- The church
How MPs affect Law
Legislation
How judges in courts affect law
Precedent
How academics affect law
Research, theory and philosophy
How prime ministers affect law
Decree
How cops on the street affect law
Enforcement
How society by general agreement and compliance affect law
Custom
How the church affect law
Morals
Law comes from
- History
- Social rules
- Religion
- Records of court decisions
- Passage of legislation
Sources of law in New Zealand
- Custom
- Common law
- Statute
- Tikanga (Maori customary law)
The English laws act occurred when
1858
The english laws act (an act of NZ parliament) affirmed that the laws of England were the laws of NZ from
14 Jan 1840
Custom
Unwritten standards of behaviour, practices and principles by which the community lived (e.g hygiene, social taboos)
Under english law, custom must have existed since
Time immemorial (1189), the time of Richard I ascension to the throne
For a custom to have the force of law, the requirements are
- It must have continued without interruption since 1189
- It must be confined to a limited and defined locality
- It must be certain
- It must be reasonable
Common law
The system of law that emerged in England beginning in the middle ages and is based on case law and precedent
Common law began
After 1066 - Norman conquest
Common law was meant to be ______ decided
Uniformly
_____ were sent around the country top decide the law in England
Judges
Common law reflected
Customs and community sense of right and wrong, justice and fairness - so was readily accepted
Characteristics of common law
- The common law exists; it is declared by judges as it applies to disputes brought before courts
- The ancient unwritten law of the kingdom
Common law system is
- Uncodified
- Largely based on judicial decisions that have already been made in similar cases (precedent)
- Judges have the authority to reveal the law
- Judges understood social norms, so ensure fairness
- Needs a system of reporting
- Can be situation dependent e.g burglary worse under times of crisis (looting)
Decisions in individual cases are very important because
Through the decisions the “unwritten law of the kingdom” is declared and “written down” by the judges through their decisions on a particular case
“Written down” by judges refers to
- The doctrine of the precedent
- An effective system of law reporting
Elements of reporting a case
- At trial (plaintiff/defendent)
- On appeal (appellant/respondent)
- Court - Level of hierachy
- Names of judges
- Head note - the editors interpretation of the case
- Key words
- Statement of action
- Analysis of facts
- Finding of the court
- Cases referred to
- Names of council for plaintiff and defendant
- Decision/judgement - written by the judge
The doctrine of the precedent
Like cases should be treated alike
Precedents are either
Binding or persuasive
Binding precedent
A legal rule set by a supreme court that must be followed by lower courts within its jurisdiction
Persuasive precedent
Not binding, but useful information that may sway a judges decision
Statute is a source of law also known as
Legislation
Does statute or common law override the other
Statute overrides common law
In the NZ system, parliament is the supreme law-making body, and as such can
Create laws to govern virtually any aspect of life in our society
Differences between statue and common law
- For statute, parliament does not have to wait for a dispute to arise, and law can only be developed in common law if a case is brought before the court
- For statute, parliament can reform the common law replacing common law with statute, and for common law, judge as to decide on the basis of the law
Other sources of the law
- Deligated or subordinated legislation
- Tikanga
- Treaties
- Treaty of waitangi
Deligated or subordinated legislation
Parliament can delegate law making power to other bodies (by laws, regulations)
The power to make delegated legislation is always traced in
Statute
The first law of New Zealand
Tikanga
Tikanga maori is given limited recognition in the NZ legal system as a source of
Custom, enforceable at common law
Where parliament has included words taken from Tikanga Maori in statute law, the courts must
Address these concepts in the way parliament requires
Judges may consider relevant _______ when deciding how to exercise discretion
Tikanga values (e.g community, whanau, background
Treaty
An agreement between two or more nations to act according to the set of rules agreed upon
Treaties may be called
Agreements, accords, protocols, conventions (among others)
Treaties can be described as less direct sources of law because
They create obligations on the government and may have some impact on related domestic laws
Courts can take treaties into account when deciding a case. True or False
True
Te Tiriti o Waitangi
Agreement by which maori and the crown consented to terms of settlement (different from other treaties)
Although it does not have the force of law in NZ, it has been recognised by the courts and the legislature as
A founding consitutional document
