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LAW 121G Study Guide - Final Guide: Industrial Revolution, Contract, Diminishing Returns

Course Code
LAW 121G
Jane Kelsey
Study Guide

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Provide a one paragraph summary of what you understand each of
the concepts of law to be about and what their key elements and
focuses are.
Natural law/Positivism/Tikanga are Value Consensus
CLS/Twail/Feminism are Value Antagonist
Realism can be in either category or neither
Natural law
Is the legal concept that emphasizes what law is ought to be from a highly moral and enlightened
perspective. A natural law theorist would believe morality and ethics to be above law itself and thus
acknowledges acts of not abiding immoral law as right. The dilemma of Natural law is the
unresolved subjectivity of morality as moral codes differ from each religion, country, and person.
Positivists believe Law is amoral and thus substantial regardless of its ethicality. The law is law if it
is made through lawfully correct procedures. The law being justified by statute is the fault of
positivism as it is a circular argument.
Maori customary rights that encompass both Natural law and positivism. Tikanga law is informal,
fluid, and capable of adaptively changing to suit the circumstance. Tikanga law values the idea of
Whakapapa, which is the belief that all things are interconnected.
Critical legal studies
Believes that law is formed by societys elites to maintain social order and suppress minorities and
disadvantage disparate groups. The law advantages white, Christian, middle-class men
The theory that outlines how first world countries create international legislation to maintain their
power at the expense of third world countries. Examples include patent laws which state to be
international law but realistically applies mostly to first world countries by 95%.
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The belief that law is unfair to women as the laws definition of a reasonable person identifies
mostly with males.
Some Questions
Are you convinced that law is totally indeterminate?
Is the law powerful enough to mask its oppressive nature?
If a group unrepresentative of the whole society is responsible for making, executing and
upholding law, is it really fair?
LEGAL REALISM cases such as Wi Parata; the judge had the power.
Judges give more emphasis on protecting proprietary rights
Judges are influenced by the values of the majority of which they are constituents (NZ
Settlements Act, Capital crime)
Protect property ownership values for economic benefits of the elitists
How might a legal realist explain or discuss discretion in the CJS? What about a positivist? A
natural lawyer? A critical legal theorist?
You have 7 concepts of law (Natural law, TWAIL, Tikanga etc)
Take each one individually and use it as a lens to analyse Maori
ideas of property.
Brainstorm this analysis, looking on the Maori ideas of property as a thinker of each legal
Then write a bullet point essay to show how a positivist may think about it for example,
and the relationships.
Do this for each, dont worry if you cant write much for somei.e., feminism) just get used
to applying each lens and analysing.
Then choose the best plan and write at least a 1page essay on it.
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