Law and Society (LAW 121) Study Notes (1).pdf

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Department
Law
Course
LAW 121G
Professor
Dr.Smits, Professor Morrow,andotherguestlecturers
Semester
Spring

Description
LAW 121 – Law and Society LAW AND SOCIETY– CONTENTS Part A: Concepts of Law – a taste of LAW 316: Jurisprudence Traditirwpece Traditional Maori Concepts of Law: Tikanga Maori m 5 s i l a e R l a g e L SCretclsl CPreialctvein m9 s i l a r u l P l a g e L Part B: Branches of Government – a taste of LAW 211: Public Law The Constitutional Origins of New Zealand Declaration of Independence and the Treaty of Waitangi Parliamentary Supremacy (ParliamS The Balance of Powers and the Enactment of Law s8 e1 i r u J d n a s t r u o C Fitzgerald v Muldoon Finnigan v NZRFU 5 e2 s ahe Sealord Part C: Law and Property – a taste of the various property law papers (301, 432, 471) ?7 y2 t r e p o r P s i t a h W Critheopert29 1y 3t r e p o r P s a n e m o W 3 y 3 t r e p o r P l a u t c e l l e t n I Propasryter PluPrlrtrthes36 Part D: Law and Rights – a taste of Public Law (LAW 211) Criminal Law (LAW 201) 8 e3 m i r C g n i n i f e D HoCmrisianldlit4 s2 e4 c n e f e D l a r u t l u C IPoiicsutasl CrJyssimel New Zealand Bill of Rights Act 1990 0 s 5 t h g i R n a m u H l a n o i t a n r e t n I CrisisTf52snignsaw Part E: Law, Colonisation and the Treaty of Waitangi – a taste of Public Law (LAW 211) AAoteeaotiaon The Impact of Colonial Legislation on Maori The Impact of Judicial Decision on Maori The Waitangi Tribunal and the Settlement Process Foeenedere64 Constitutional Change: Where To From Here? LAW 121 – Law and Society TRADITIONAL EUROPEAN CONCEPTS OF LAW Positive Law Natural Law Law is that which is stated to be law by a Natural Law theorists see law as gaining recognised authority. Positivists see law as validity from its adherence to certain gaining validity by adherence to a particular independent principles, such as morality , process of creation. Thus in New Zealand, a law rationality or justice . The validity of the law is a rule made by parliament and found in a depends not only on the fact of enactment statute. Law is anything posited (laid down) as according to the requirements of the legal law in accordance with the requirements of the system in question, but also on some factor or legal system. Also called positivism. factors outside of that system. Positivist Theories Natural Law Theories John Austin Thomas Aquinas Law is a command from a sovereign , who is ‘Product of nature’ habitually obeyed , that is backed by a sanction Moral rules act as a framework within which (threat of penalty if not habitually obeyed). the law must exist. If the law goes beyond, or Each of these elements is problematic. conflicts with the framework, it loses its validity as law. Aquinas believes there is some moral Hans Kelsen order that is intrinsic in the nature of the world Kelsen’s Pure Theory o fwawl si and with which the law must comply. validated by, or validates, the norm which precedes or succeeds it in the hierarchy of John Finnis norms, and the validity of the hierarchy as a ‘Based on reason’ whole is validated by the ‘grundnorm’. This Law must answer to some fundamental norm is presumed by its very nature, so cannot requirements of logic and reason. Where a legal be created. It is presumed as a starting point and system rests on a foundation which is justifiable a logical necessity. Thus: law claims to be law by in accordance with a common understanding of recourse to another, higher, rule. It is assumed a what is proper, its rules are legitimised and fundamental norm exists upon which other validated as law. Thus, a legal system rests on norms are built, which justify the law. foundation of what is proper and good. For example, the laws of a tyrant do not necessarily HLA Hart have to be obeyed because logically and Hart’s Rule of Recognition: reasonably, they do not reflect an understanding - Primary rules govern citizens of what is ‘right’ and ‘proper’. - Secondary rules govern how primary rules are created and enforced - Secondary rules are validated by the rule of recognition, a rule which every legal system has - Rule of recognition is validated by its widespread acceptance by officials and enforcers of the law 2 LAW 121 – Law and Society Positive Law Natural Law Is Ought Sovereign (all power) Nature/God Legal if passed by ruler through Legal if justd moral the right procedure Must obey Disobey if unjust 3 LAW 121 – Law and Society TRADITIONAL MAORI CONCEPTS OF LAW Tikanga Maori:the commonly understood rules that or der Maori society by aiming to keep spiritual, environmental, physical and social wellbeing in balance. Hirini Moko Mead’s description of tikanga • Cuts across all aspects of human behaviour, including matters of spirituality, religion and morality: broader function than maintainingthe law as understood in a narrow sense. • Offences against tikanga are both immoral and in breach of the code laid down by tupuna (ancestor) and creator gods. • Distinction between tikanga Maori in this broad sense and nga ture, a term which refers to laws enacted by parliament Nga Tikanga Maori Nga Ture Laws passed which cover Laws enacted by all aspects of human Parliament and applied by behaviour, e.g. morality the General Courts Similar to natural law Similar to positive law Sources that validate Maori Law • Geneology: Authority based on whakapapa (desce nt/bloodlines) bonds between people, ancestors and the environment • Precedent: passed down from the ancestors through oral traditions and practices Maori Legal Institutions and Legal Regulations • Muru: established a system of ‘plundering’ as penalty for offences; system of redress. • Rahui: instituted to prohibit particular activities for a certain time • Tapu: cohesive force in Maori life; specific restriction Co-existence of the two approaches to law Western (European) Maori Law Tikanga • Individual • Collective (whanau, iwi) • Individual responsibility • Collective responsibility • Western religion • Maori religion (cosmology) • Human superior • Human subordinate • Abstracted • Contextual • Written • Oral • Formal Precedents • Whakapapa • Legislature/Judiciary • Hui, powhiri, wananga* * hui – conference, powhiri – ceremony welcome, wananga – publicly owned tertiary institution 4 LAW 121 – Law and Society LEGAL REALISM • Legal realism is an impatience with theory, a concern with law ‘as it is’ and a preoccupation with the actual operation of law in its social context. • Do rules determine outcomes? From a realist’s perspective, rules are important but do not lead directly to outcomes. Realists believe that there is much more ‘going on’; that there are a variety of other factors that must be taken into consideration. • Realists, like positivists, accept the need for a scientific analysis of law, however they reject the single avenue of logic and seek to apply the numerous avenues of scientific enquiry, including sociology and psychology. • Syllogistic reasoning (that consisting of two premises and a conclusion is used by formalists. Formalists say there is a rule (Premise 1), a fact (Premise 2) and an outcome (Conclusion). Realists however disagree with formalists and are divided into: Rule-Sceptics Fact-Sceptics Believe in the existence of rules but State that we cannot predict the are sceptical of the roles they play. outcome based on facts because we cannot foresee what the judge will perceive the relevant factors to be. • Example: The Ruka v. Department of Social Welfare (1996) case. Before arriving at an outcome (the verdict) other factors and issues are taken into consideration. Oliver Wendell Holmes Karl Llewellyn Jerome Frank - ‘The common law is the - Law is the serving of - The most ‘radical’ of the articulate voice of some certain fundamental American realists. sovereign or quasi-sovereign functions, i.e. ‘law-jobs’ - Recognises a distinction that can be identified.’ (there were 6 of these). between ‘rule-sceptics’ and - A profound believer in - Law is an engine with ‘fact-sceptics’. defining the law by reference purposes but not values. - Various prejudices to what the courts actually - The most important job crucially affect the said it was (what will occur, law has is the disposition outcome of a case. For not what Parliament says). of trouble cases. instance, a frail old lady v. - Distinguishs clearly greedy developer case. between law and morality Sometimes the rules are (consider what the law is, not bent because of prejudices. what it ought to be) - If need be, look as the law as the ‘bad man’ 5 LAW 121 – Law and Society CRITICAL LEGAL STUDIES According to some legal critics, rules are not the only thing determining an outcome. They believe rather that legal outcomes are arbitrary/indeterminate (1), as well as that the judges/law are not driven by rules (2) but that the drive is rather the underlying power dynamics (3). TRADITIONAL FORMALIST VIEW CRITICAL LEGAL STUDIES VIEW Government is by law not by people Law is shaped by society and society is shaped by law. All this happens through human actions. Law is above politics Law is part of the State’s political framework. Law is above social, economic and cultural Law reflects and reinforces dominant social, values and interests economic, cultural and gender values and interests Law is objective and scientific ‘Objectivity and science’ disguise dominant interests and discredit alternatives. Law is administered within a value-neutral The framework of the law is designed and network (i.e. legislatur e creates law + law developed to reflect and protect interests of enforced by police = no values taken into capitalism, patriarchy and eurocentrism. consideration) Law is the right answer Law enforces inequality of power. 6 LAW 121 – Law and Society CRITICAL PERSPECTIVES: FEMINISM Feminism • an offshoot of Critical Legal Studies (CLS) • states that ‘the law is not neutral’ • legitimises values and powers of whoever is in power at the time, not including all members of the present society There are three primary phases of feminist legislative theory: Phase One Women were struggling for equal rights because of a male monopoly. Law is peopled by men – judges, lawy ers, jurists. We see a ‘male world view’ of the law. Feminists want fe males to take law roles. Men have perpetuated the idea of male dominance, keeping women in their place. For example, women could not attend university (Kate Edger was the first female graduate in New Zealand, with a BA in Mathematics in 1877). Although universities would let ‘any person’ attend, they did not elaborate that this really meant ‘any man’. Phase Two ‘Law has a deep-seated male orientation which infects all its practices.’n other words law as a ‘masculine adherence’. ¾ Law has a person, already defined in mind with particular characteristics, e.g. male, middle-aged, wealthy, educated. ¾ Law benefits only those who fit the ‘stereotype’ ¾ A comparison with the ‘reasonable man’ (portrayed above) not with those who typically are situations regarding the law (i.e. criminals), or men who do not fit the masculine category. ¾ The way things constructed within law is biased, representing a male world view. A masculine serial process is followed in the law. Phase Three The law is not only dominated by male players, masculine structures and policies but the whole justification of the law as just and fair is based on masculine values. Four Methods of Investigation 1. Asking the ‘woman question’ • Demands explanations for women’s exclusion from all areas of life. • Demands justification from those who perpetuate women’s exclusion. 2. Theorising law’s gendered nature • Superficially gender-neutral language exists, but in truth is based on masculine ideas. 3. Feminist practical reasoning • Legal reasoning is masculine • Legal reasoning is not holistically representative of all people • Male vs. Female characteristics (e.g. males being more logical thinkers than females, females being able to better sense their connectedness with other people). 4. Consciousness raising • Women need to recognise and acknowledge the male-dominated society in which they live. Feminist perspective: ‘let’s educate women into understanding why they are in this situation and why they are perpetuating it’. 7 LAW 121 – Law and Society Therefore a primary concern of feminists is to incorporate both male and female views into law. Feminists are also concerned not only with women but with racial issues and gender minorities, whom they believe to lack a voice in society. Example: The masculine drafting of law is evident in rape cases. The female victim feels as if she is on trial because all the questions are about her. What signals did the women given to imply she was giving consent? What was the women’s previous sexual history? (if she has had sex hundreds of times before, she is unlikely to win). The trial lacks a feeling of understanding in spite of the attempt for sympathy = masculine drafting of law. Types of Feminist Theory 1. Liberal Feminism (first phase that originated) • Focussing on equal rights • ‘Women are just as rational as men’ • Does this make women ‘honorary men’? • This form of feminism enabled women in New Zealand to be granted the right to the vote, or franchise, in 1893. 2. Cultural/Difference Feminism • Women and men are inherently different • The problem is that we live in a male-dominated society • Why is rational thinking (which is associated with men) seen as superior to emotional thinking? 3. Radical Feminism • Yes, women are different • Everything is still based on male power • Even if equality is reached, it is not equal because it is based on a male system 4. Post-modern Feminism • There is no right/wrong way 8 LAW 121 – Law and Society LEGAL PLURALISM • Many things that lack the formal status fulfill a similar function • Unwritten rules: should these be considered ‘law’ as well? • All societies are heterogeneous on many levels in both − The Global Society − The New Zealand Society Pluralism within the Global Society • If the legal systems of different countries contradict each other, cases can be taken to a court with higher authority. e.g. if the Britishurt turns down a case it can be taken to the European Union (EU) Court. Pursuit of a legal favour through the EU court. • Which legal system applies − regarding offences crossing borders? − within the European Union? Common Law and Civil Law Traditions • Common law judge is an ‘umpire’ who makes a decision, whereas a civil law judge is more of a ‘fact-finder’, who participates in a case. • Judge training/selection method − Common Law: judges are former successful barristers who have spent many years of their careers practising law. − Civil law: judges start off at low positions and then work up through the hierarchy to eventually become a judge. • So evidently the differences between Common law and Civil Law systems affect the way judges view and decide on cases. • Adversarial System Common Law = Case Law + Legislation Inquisitiorial System Civil Law = Principles interpreted • In the Common Law system, there are two sources of law: o Statute Law (that which is passed by Parliament, in statutes) o Case Law (that which is made precedent from past cases) • Common Law is the NZ tradition. Statute Law – system of precedent You, as a judge, look at previous cases to determine at outcome. Case is more relevant depending on where in the hierarchy. w a l e s a c e v a h t o n s e Civil Ldw – • No legislation in the same sense but there are principles and codes. • Source of principles = natural law • When judges look at common law – law of past cases – the facts are looked at and a decision is made. Common Law and Civil Law are two very different systems that seem to work together fine. LAW 121 – Law and Society Pluralism within the New Zealand Society • Within a society is State Law (the only law according to positivists). • There are possibly other mechanisms that order society but these are not called laws. • Non-state laws – those mechanisms of soci al control which are not law, not made, considered or enforced by the State. • State law and non-state law exist − Church law/Military law don’t come under State law. − The Church has its own beliefs/doctrines: the legal reference to why we don’t interfere because we guarantee freedom of religion. If the State were to interfere, this freedom would be taken away. − Problems arise when jurisdictions seem to cross over. e.g. Mabon case If in employment relationship = State matter If not in employment relationship = Church matter − Some instances are borderline so jurisdictions fall elsewhere. − Jurisdictions depend on individual situations. − Military law is also a separate legal system, with separate courts. Romano-Germanic Law • Importance of scholars to the legal system • Codes • Secondary role of cases • Fundamental principles e.g. Austrian Civil Code enables a judge to refer to Natural Law • Judging and Court Procedure Islamic Concepts of Law • The distinction between legal and moral obligations • Sources • Content • Constancy • Relationship to secular law 10 LAW 121 – Law and Society CONSTITUTIONAL ORIGINS OF NEW ZEALAND Arbitrary Categorisation: New Zealand’s Constitutional Milestones Colonial History • Assertion of sovereignty (21 May 1840) • Establishment of colonial government (1840) • New Zealand acquires dominion status (1907) • New letters patent* recognising new status as a dominion (1917) • Full constituent powers (1947) - Statute of Westminster (1931) ( essentially independent) - New Zealand gains power to suspend, repeal and amend its own constitution. • New letters patent (1983) - current to the present day • Major constitutional revision (1986) - the Labour Party wanted to devalue the New Zealand dollar but was not able to because it was not in power at the time. A constitutional revision was needed to allow this for Labour. - Constitution Act passed, terminated residual rights England had. New Zealand becomes fully, unconditionally independent. • Supreme Court established (2003) * Letters patent: a legal document issued by a Monarch (King/Queen) containing specific instructions for the Governor General. The Maori Dimension • Declaration of Independence (1835) • Treaty of Waitangi (1840) • Wars with British (1860s) • Treaty deemed “a simply nullity” (1877) - Wi Parata case; a low point in the timeline. • Establishment of the Waitangi Tribunal (1975) • SOE Lands Case (1987) Popular Participation • First general election in New Zealand (1853) • (Four) Maori seats created (1867) - originally seen as a ‘temporary measure’ - Maori men meeting the property qualification could vote • Extension of adult male franchise (1879)(Universal Male Suffrage) • Franchise extended to women (1893) - after a long campaign involving petitions, protests, etc. • Citizens initiated Referenda Act (1993) • Multi-member Proportional Representation (1996) (MMP) - a German system adopted by New Zealand. The International • New Zealand admitted to the United Nations (1945) Dimension - when UN was originally based in San Francisco, California - one of the founding members at the time • Adoption of Universal Declaration of Human Rights (1948) • Ratification of ICCPR and ICESCR (1987) - ICCPR: International Covenant on Civil Political Rights - ICESCR: International Covenant on Economic, Social and Cultural Rights - Both organisations seek to reinforce human rights 11 LAW 121 – Law and Society See Report of the Constitutional Arrangements Committee, pages 37-80. What is a constitution? • The basis of a legal system. • Sets out different branches of government and the relationship between them. • Prescribes how laws are made. Does New Zealand have a constitution? Yes, but New Zealand’s constitu tion cannot be found in one place, like the constitutions of other nations’ legal systems. New Zealand’s constitution is a mixture of both New Zealand and English (the ‘mother country’) statutes, constitutions conventions (‘rules of the game’ that everyone knows but no one enforces), etc. 12 LAW 121 – Law and Society DECLARATION OF INDEPENDENCE AND THE TREATY OF WAITANGI This is the origins of British colonial involvement in New Zealand from a Maori perspective. The Declaration of Independence and the Treaty of Waitangi, or Te Tiriti o Waitangi, are the two major New Zealand constitutional documents. Declaration of Independence 1835 The English text of the Declaration of Independence is a subsequent literal translation: RANGATIRATANGA - KINGITANGA - KAWANATANGA What is a declaration? A declaration is a proclamation or a one-sided statement. • The Declaration was drawn up by Busby, with the help of Henry Williams. • Maori culture was oral but Maori were also very literate in their language. They had learnt written Maori from the missionaries, who had translated the Bible into Maori. • The term used for independence in the Declaration is RANGATIRATANGA, which denotes different things, i.e.chieftainship/ultimate authority. The term used to denote ‘Kingdom of God’ in the Maori language Bible was interestingly RANGATIRA. • Kawanatanga: meant subordinate function of government (i.e. was used in describing Pontius Pilate in the Maori language Bible). Treaty of Waitangi 1840 Differences in articles ENGLISH VERSION MAORI VERSION Article 1 Article 1 Chiefs give the Queen sovereignty (complete Chiefs give Queen governorship over their authority and control) over their land. land (Kawanatanga – denotes less authority than sovereignty) Article 2 Article 2 Maori were allowed possession (ownership) Maori were allowed sovereignty over their over their lands, etc. land ( Rangatiratanga – denote complete Queen had the right of pre-emption over control and authority). Maori land sales (This means right of first Chiefs will sell land to the Queen at an agreed offer.Thegovernmenttookittomeanthat price (no mention of pre-emption; Hokonga – Maori could only sell them and no one else). buy and sell) Article 3 Article 3 Maori are given the Queen’s protection and Maori are given the Queen’s protection and the rights of British subjects. the rights of the British. No mention of ‘subjects’. Other Maori perceptions: • Maori perceived land to be ‘part’ of the people, not something you can give up/possess. • Sovereignty/mana cannot be ceded/given away . You certainly cannot give it away to someone who is not your ancestor. • Maori intended this foreign power to govern their own people (the British) in New Zealand (those who were transcient, e.g. sealers/whal ers/traders). Maori did not intend the British to try to govern the Maori people. • Maori expected that land already unjustly taken/held would be returned. • The Crown did not intend to meet its promises, it wanted to colonise New Zealand. 13 LAW 121 – Law and Society PARLIAMENTARY SUPREMACY: COMMON AND STATUTE LAW There are two types of within the common law tradition. 1. Case Law (aka common law, judge-made law) 2. Statutes (aka legislation, acts of parliament) Common Law • Based on the doctrine of precedent. Horizontal Vertical Looking to previous Looking to higher courts cases, along a timeline. in similar situations. • Judge-made law created by developing and applying principles and interpreting statutes. • When a judge makes a decision, that case becomes precedent. e.g. Donahue v. Stevenson case – this case re sulted in a new decision, and every subsequent case applies this precedent (this case involved a woman finding a snail in a bottle of ginger beer she drank and she became sick. Can the company producing the ginger beer be held responsible for the lady’s care?) • Thus: the way something is interpreted in the past will be looked at when dealing with particular cases in the future. Statute Law • Law passed by parliament. • Set out in written form in parliament statutes. The relationship between Common Law and Statute Law is founded on the relationship between law-making powers. Parliament supremacy established through? 1. 13 Century Magna Carta Restricts King’s rule so not unfair or without justice. 2. 17 Century Bill of Rights Bill of Rights 1668 – to settle constitutional conflict (incorporated by New Zealand and still referred back to today). As a result, parliament is ‘seen’ as supreme, as the sovereign lawmaker with overriding authority. But has parliamentary supremacy affected the relationship between Common Law and Statutes? We must consider: • Competing laws • Validity of laws – the court cannot question a law or validate them in case law if made by the government. The bottom-line: Statute Law is better because our government is democratic (it represents people). We vote for those who will make the laws (so we have some ‘say’), however we don’t get to vote for judges et al in courts (so we wouldn’t have a ‘say’, which contradicts democracy). 14 LAW 121 – Law and Society Situations where Common Law could overrule Statute Law • In a religious state, a statute could be created by the government ruling that all people must go to church. This however contravenes human rights. • (From Lecture 1) A German women acts on Statute Law in Germany during the Nazi rule period and ‘dobs’ her husband in to author ities for bad-mouthing Hitler and the Nazi regime. Legislation is clearly immoral, because the defendant (the husband) is faced with the death sentence for this ‘crime’. Again, human rights are contravened. Relevant Points • In New Zealand in the 1980s the question wa s put forth of whether there perhaps was a place for judiciaries to invalidate laws. This question should not have been raised and is similar to stating our democratic parliament is not supreme. • Laws thatwerepassedcontrarytotheTreatyof WaitangiinNewZealandbyparliament. We cannot legislate against one of our country’s constitutional documents. There are many possible consequences. 15 LAW 121 – Law and Society THE BALANCE OF POWERS AND THE ENACTMENT OF LAW Branches of Law Executive Cabinet & PM Judiciary Courts Legislature Queen, Gov. Gen & MPs Legislature: where legislation is created, however Executive is where power lies Queen • Involved because of New Zealand’s colonial history • The Monarch remains our Monarch • Is our Head of State • Lawmaker in name only, rarely involved in affairs. • Only becomes involved through the Governor General Governor General • Current – Dame Sylvia Cartwright • Appointed by the Queen every five years on recommendation from the Ministers of Government. Acts on advice of the Ministers of Government. • Primary functions – appoints the Prime Minister, in a legal sense (i.e. not really…). Governor General sees all legislation before it is passed. MP’s (Members of Parliament) • House of Representatives (elected Members of Parliament) Executive: where the power lies and where policies are made • Cabinet governed by the Prime Minister – most powerful policy making body. Judiciary: the Courts – separate branch All 3 sections have checks and balances . The balance of power between the 3 sections is not even, but at least power is not all in the hands of one absolute ruler. 16 LAW 121 – Law and Society Legislation: from Concept to Law • All legislation starts as a bill • Most important things happen in the ‘Pre-intro duction’ phase – that is, before the bill is entered into the house. • Ways to introduce a bill: − Go to the Cabinet Legislature Committee − Through pressure groups/petitions (e.g. bill related to fireworks) − Committees − Government Bill coming into practice − Member introducing a bill, without government support (Member’s Bill). i.e. bill related to smack of children/boy racers. Normally only 1 Member’s Bill per year is introduced. • First hurdle – get into the Cabinet Legislature Committee • Then: to the Parliament Council for drafti ng (who consults/seeks advice from the government and other interested bodies) • Then: to Cabinet – who meets Caucus. They decide, amongst debate, whether the bill should go ahead. Once passed, members of parliament should support it. • Then: introduced to the House of Representati ves. Opposition is not aware of the bill until it is introduced (first reading = debate commences). • LookattheHanzarisseewhatwasdebate d/said at the meeting (For lawyers when understanding the grounds for which the bill was put forward when litigating a case which involves the law). • (13 Select Committees) Ministers do not sit on this committee. They must investigate and report back (MP’s less ministers). • Second reading = main debate. If it passes the second reading, it will more or less become law. • Then: to the Committee of whole House, which is really just the House of Representatives, only with different rules. This involves rigorous discussion, as each clause is examined in detail. • By the third reading, they are ‘tired out’ and tend to motion for the bill. • Quote: “This bill has passed the house”. Overview: • This is a long process, but it can happen quickly if the bill is considered ‘urgent’. • Even after the third reading, the bill is not law YET. The Governor General has to give it ‘assent’ (which is never refused but often delayed until some time in the future). 17 LAW 121 – Law and Society COURTS AND JURIES What is a “Court”? Generally a “Court” is defined in relation to the fu nctions it serves and, in a general sense means: the institution which administers justice (a) by so lving disputes where two or more parties are in conflict; or (b) by imposing the law of the state upon those who are in breach of it. Note: the word “Court” may not only relate to the ju dicial body but to the physical location where the Court meets, or sits. Above diagram of the New Zealand Court Hierachy from the website : http://www.justice.govt.nz/education/nz_court_sys.html. 18 LAW 121 – Law and Society Functions of a Court 1. Dispute resolution 2. Interpreting, applying and enforcing the law 3. Clarifying and developing the law Why is a court hierarchical? • HORIZONTAL: District Court decision is persuasive. • VERTICAL: High Court decision is binding; no discretion (why lawyers argue alot). • As you move up the hierachy, decisions are more binding. Jurisdiction means the power, ability or authority of a Court to hear or determine a particular matter. In order for a Court’s decision to have validity, the Court must have the necessary “jurisdiction” to make that decision. Different Jurisdictions • Jurisdiction represents your ‘turf’, the boundaries in which you work. • Different courts have different jurisdiction. • Jurisdiction can be determined by subject matter(1) (what you have jurisdiction over) but can also be used in a geographical sense (2) (where you have jurisdiction). • New Zealand Courts only have jurisdiction in New Zealand cases (1; subject matter) and within New Zealand (2; geographically). • Civil law is that which is not criminal (Crown v. Accused). • The State can only bring as case against a person when the offence – which is defined by Statute. The Crimes Act 1961 (legislation) defines when offences are criminal. • Jurisdiction of civil law – all private matters (parties = 2 individuals). • Less serious cases are defined by different acts and begin in the District Court, which has original jurisdiction. The District Court hears appeals from tribunals, etc. • Sometimes cases skip the District Court and go direct to the High Court. This is for cases of very serious natures, such as murder and rape. Characteristics of the New Zealand Court System − Adversarial method − 2 individuals ‘battling’. − One winner, one loser. − Inquisitional: much more fact-finding, judge makes the decision this way. − A ‘cold’ system, with a power imbalance between State and defendant. − Not therapeutic, not contextualised. − Accessible and open to the public − Physically accessible (i.e. you can watch a case in court) − Justice must be seen. − Court records must be exactable (any record can be called for), such as the New Zealand Law Reports. Lawyers build their cases by reading upon cases. − Is it accessible for people who want to go to court? Money is vital, so those in need offinancialaidwillbe‘prejudiced’orworseoff.Youneedtofallwithinacertain threshhold for legal aid. − Judicial independence − Separation of powers (see previous lecture). − Courts of record 19 LAW 121 – Law and Society − Records are available. JURIES Composition of juries • Most of the time juries are used for criminal cases and occasionally for big civil cases. • Names picked from an electoral roll; summons is sent to each individual. • Can last any length of time from one day to 9 weeks. • All names of jurors put in a ballot box. Around 20 go to the courtroom, the rest are sent home. The two sides can say who out of the 20 they do not want on the jury. • Lawyers/MPs/Police officers cannot be on the jury. • Role of duty: to be analysers of the facts. Jury must listen to what is said and decide who is telling the truth. The Judge decides what the law is. • Jury comes back after deliberating with the verdict. The Judges announces decision. Some advantages of a jury system • Represents the ‘reasonable’ person in the community. • People on a jury don’t have a legal background. • Provides fresh perspectives from society. • Makes community part of the law. • We are meant to be judged by our peers, and a jury is indicative of that. We are not meant to be judged by a Judge who lives a life probably very different to our own. • 12 people on a jury is better than 1 judge. • People evaluate without bias. Some disadvantages of a jury system • Is a ‘skewed’ group because the two sides are able to choose who goes on the jury. • It is comprised of mainly retirees/students, because they have the time. • System excludes at least 2 professions. • No compulsory gender proportions, e.g. you could have 11 men and 1 woman. • Jury members may make emotional decisions rather than logical, objective decisions. For instance, not sending a kid to jail for life. • Some jury members may be swayed by what other jury members think. Unanimous vs. majority juries • There is a bill that wants to change majority to unanimous currently in New Zealand. 20 LAW 121 – Law and Society THE EXECUTIVE V. THE COURTS: FITZGERALD V. MULDOON Starting Point: Separationofpowers System of checks and balances In this case: • The Executive stepped over the boundary (out of their jurisdiction) and took the Legislature role. The Judiciary was called in to intervene. Context • The Labour Government, in 1974, had intr oduced a superannuation (pension) scheme that involved a compulsory contribution of a portion of one’s wages/salary to be paid in retirements. • National vigorously opposed the legislation and vowed to repeal it, if they were able to win the 1975 Election. To repeal legislation = get rid of it. To do this a bill would need to be introduced which would ‘repeal a bill’. Another act is required to repeal the law. • At the election this was a ‘hot’ topic. Why did so many people invest interest? People invested interest because the case affects the broader community. Other factors included what was happening in the 1970s – economic instability, deregulating of state-owned enterprises, rising unemployment, increasing oil prices by Arab nations which cut supply and impacted on New Zealand’s economy caus ing an economic slump (inflation). Older people were also living longer. Labour’s superannuation scheme no longer had merit. • National’s election campaign was smart, tapping into the insecurities of the nation. Note that this election was the first ever to betelevised on colour TV. Colour cartoons were screened on television. Examples: − An aeroplane lands, a group of Pacific Islanders come out, are seen to be taking all the work and homes in New Zealand, and are then seen behind bars. − An ad showing dancing Cossacks = conveying idea that Labour is communist. Muldoon’s Actions 1. 12 December: Writes letter explaining his intentions. 2. 15 December: Releases press statement, reiterating his letter and intentions. − The compulsory requirement for employers/ employees to put money in pool, will no longer be a requirement. 3. 23 December: Releases an additional press statement, same as above. 4. Trade Union prosecutions stayed by the Attorney General. Trade Unions complained and tried to prosecute employers. Attorney General = highest legal officer in the country. Fitzve.ald (Assistant Clerk in the Department of Education v. Prime Minister/the State) Can the case be brought? • Fitzgerald claimed the press release was not a valid way of repealing a law. He claimed it breached the Bill of Rights 1688, Section 1 (pg 62, LAW121 Course book) • Was he suspending the law or acting by regal authority? • A civilian can bring a case against the State (called a Judicial Review) • Fitzgerald did have an economic interest, but only of $14 (still qualifies) 21 LAW 121 – Law and Society Court’s decision • Courts set an early date for the case. • Fitzgerald wanted: a declaration that the Prime Minister (Muldoon) acted illegally (1), an injunction to make government agencies stop following the changed law (2) and a Writ Mandamus, i.e. that the original law should be reinstated (3). • The Court ruled that: “the pretended power of suspending laws by regal authority without consent of Parliament is illegal.” Outcome of the case • Government was given 6 months to pass a repeal ‘legally’. Lessons learnt • Did this case achieve what it intended to achieve? • It reaffirmed the importance of processes which all cases must go through. • It reaffirmed the idea that no one is above the law, not even the Prime Minister, who is the person with the total mandate to do it. Role that the Governor General did or didn’t take? • The Governor General has the authority to call parliament, but did not. • Why? A similar situation had arisen before in Australia and the Australian Governor General did act, only to be received very badly = New Zealand Governor General was most likely slightly hesitant to become involved. Fitzgerald v Muldoon The policy of the incoming government was to ab olish the Superannuation Act 1974 and introduce new legislation. Muldoon announced this in the ne xt parliamentary session. He was so keen to make this happen that he made this announcement inDecember1975beforeparliamentwasin session. He purported also that contributions were no longer required to this scheme by employers and employees. There was still an existing law on the books which had a scheme running under it. But the new Prime Minister, by press statement, has purported to abolish it. Fitzgerald, an employee of the Department of Education, chal lenged Muldoon’s action. Fitzgerald alleged the actions of Muldoon were illegal under s1 of Bill of Rights 1688 – “that the pretended power of suspending of laws or the execution of laws bt regall authority without consent of Parlyament is illegall”. Muldoon’s actions were not consistent with parl iamentary sovereignty. On ly parliament has the right to make or unmake laws and no other body has the right to override laws. Muldoon was the head of the executive government. It can be rega rded as having his statements made by regal authority. A declaration was granted to the plaintiff that the statement of the Prime Minister, made in December 1975, was illegal. But the courts didn ’t grant some of the other remedies sought. The courts decided to adjourn these matters for 6 mo nths, which would allow ti me for parliament to meet and pass legislation to eliminate the supe rannuation scheme properly. Courts suspended decisions on any other remedies for 6 months. Key point: The executive lapped the power under our constitution to suspend the law. 22 LAW 121 – Law and Society PUBLIC INTEREST AND PRIVATE BODIES FINNIGAN V. NEW ZEALAND RUGBY FOOTBALL UNION BACKGROUND Social Climate • New Zealand wants to be the no. 1 rugby nation in the world. • New Zealand also feels very strong about race. 1981 Tour • Country was divided on the issue. A wi population) protested against the tour. • Maincalltoparliament–ifweletSouthAfricatourheretoNewZealand,itshowswe are condoning their apartheid policies. • South Africa ended up touring to New Zealand but it was very problematic. 1985 Tour • Another tour: this time the All Black’s were invited to South Africa. • The New Zealand Rugby Football Union (NZRFU) accepted the invitation. • Call to parliament – Why send the All Blac k’s? We would be condoning South Africa’s policies even more, especially since we have signed agreements against them again. • Parliament makes unanimous statement that the tour is a bad idea, and that Parliament would not let it go ahead if the decision wereup to them – decision is up to the Union. COURT ROUND ONE • Two grounds claimed by the plaintiffs. U F R Z N e h t f o s e v i t c e j b o e −h 1: T (the Union is breaking its own rules by touring, and not meeting its objectives). − 2: The decision-making body • “Decision to tour made illegally” − Asked for deed from court for the above statement. − Asked for an injunction for the tour to be stopped. COURT ROUND TWO • Deciding on: − Standing (Plaintiffs do not have standing involvement/association to the tour, so substantive decision can’t be heard). − The decision-making body (was the right body) • Like Fitzgerald had to have standing, plaintif fs need to have standing. So the plaintiffs appealed to the Court of Appeal. • The Court of Appeal disagrees with the High Court and does believe the plaintiffs have a link with the union. “The sufficiency of the plaintiff’s standi ng had to be judged in relation to the subject matter of the case”. • There are different rules for private and public law. As this case affected New Zealand in such a wide manner, private law rules could not be applied. LAW 121 – Law and Society • TheCourtlookedatvariousfactors(àlaLegalRealism)beforegivingstandingtothe plaintiffs = back in the High Court. COURT ROUND THREE • Substantive claim − Real time constraints: case was in court May 8tour was set to leave May 13. − 3 days into the trial, the opening statement was still being made. On Day 3, the interim injunction was asked for. An interim injunction would not allow the tour to proceed until the case was over. − The defendants had yet to put forward their case. • Interim Injunction: all three criteria required − Prime Facie case: prove you have good grounds for making your case. − Damages an adequate remedy : would we be adequately able to compensate the plaintiffs? − Balance of convenience and harm: For whom would it be more inconvenient? And who will be harmed? The defendants shall suffer more harm, and the defendants’ harm can be quantified in money terms. So: Interim Injunction was granted. RESULT: The NZRFU cancel the tour to South Africa subsequent to this injunction. POSTSCRIPT • Finnigan v. NZRFU and separation of powers: In both tours the Government stated their lack of involvement. They could have pa ssed a law preventing a tour, but did not because they didn’t want to upset the peop le. We have a democracy, so we can’t have legislation preventing people from leaving the country (although technically possible). • Finnigan v. NZRFU & similar cases So what does this mean for New Zealand’s future today? i.e. consider the Black Caps tour to Zimbabwe in 2005. 24 LAW 121 – Law and Society PARLIAMENT, COURTS AND THE TREATY THE SEALORD CASE (RUNUNGA CASE) MAORI CLAIMS TO FISHERIES Maori cosmology & tikanga Maori have claims to lands and oceans, because under tikanga, it is part of them. Te Tiriti o Waitangi (Maori text) In the Maori text of the Treaty, Maori have taonga (‘treasures’) and undisturbed possession of lands, seas and fisheries. The Treaty of Waitangi (English text) The English text is much more general about what Maori hold claim to. Colonial Law on aboriginal title This law refers to the rights of the indigenous people of the land. One is that Maori rights will remain until they are explicitly extinguished by Statute. Colonial Law on treaties This law says that the Treaty rights are only recognised as much as they are implemented or incorporated in domestic law. Legislation As for fisheries, Treaty rights were incorporated in domestic law. 1986 QUOTA MANAGEMENT SYSTEM • Government introduced a system to prevent overfishing and to improve the economic efficiency of the New Zealand fishing industry. • A restriction on the amount of fish allowed to be caught was enforced (so the resource is not depleted). • All 200 nautical miles around New Zealand were covered. • This system was introduced unilaterally without prior public consultation. • Maori were not pleased with the system. • The system did not consider that Maori had commercial fishing rights. 1988 LITIGATION • Maori took the case to court, wanting an injunction. • The Court issued an injunction temporarily, which led to negotiations between the Crown and the Maori litigants. This resulted in the 1989 Maori Fisheries Act. 1989 MAORI FISHERIES ACT • This Act gave 10% of the commercial fishing quota to Maori and $10 million in cash to the Maori Fisheries Commission. • In return, claims (any litigation) was halted. 25 LAW 121 – Law and Society 1992 WAITANGI TRIBUNAL REPORT • In 1992 the Waitangi Tribunal writes a report on the issue. They state that Maori do have private/public/commercial fishing rights. • The main focus of the Waitangi Tribunal is to make inquiries and recommendations on things that affect Maori. In other words, on what breaches the treaty. The inquiries and recommendations from the Waitangi Tribunal are considered, but are not binding. • They reported that the 1989 Act was not enough; a bigger decision had to be made. • At the same time, Sealord Limited was offered for sale. This was timely because Sealord held 50% of the fishing quota. SEALORD DEAL • Was an agreement between Maori fisheries negotiators and the Crown. • Under the agreement, the Crown gives $150 million to the Fisheries Commission to buy a half share in Sealord, as a joint venture with Brierley’s. • On top of this, legislation was implemented to give 20% of any new species that became available (i.e. those endangered) to Maori. • September 1992: A Deed of Settlement to this effect was the signed. The problem was that one clause stated government would legislate to put the deal in writing as an Act of Parliament, but there was opposition (Section 9 of the Act, LAW 121 Coursebook). The argument was: in return, all rights be exting uished. (i.e. “All clai ms are hereby settled and discharged”). Another reason was that this now affects all Maori. SEALORD CASE • This case arose because of objection to the ensuing Treaty of Waitangi (Fisheries Claims) Settlement Act. Only a small portion of Maori had signed the deed, so thus a breach of principles. • An injunction was asked for. However the Co urt refused to issue th e injunction because of separation of powers . The Court stated it was not an issue for them to decide (“not appropriate for adjudication”) and that it reinforces parliamentary supremacy (“we don’t do politics in court”). COURT OF APPEAL DECISION • Balance of Powers • Court & Politics • The status of the Treaty* Questions to think about for Treaty question in the exam: Can the Treaty be ‘overwritten’? Can new legislation be made to be more relevant? 26 LAW 121 – Law and Society WHAT IS PROPERTY? Typical Perception • Something we assume, that is taken for granted. • ‘Mine’ versus ‘yours’. • Implies a relationship and rights in relation to a thing. Defining Property • Property is a legal term influenced by society. How property is constructed or interpreted and how much value it is given is determ ined by society, where society is the time/place/people. • Land has always caused disputes. • In colonial times, the concept was interpreted differently. Colonial Views • John Locke (17 Century) and the concept or property to be: God gave to humankind in common the world. There is a process by which something originally held in common can belong to people. An individual can develop, live and cultivate the land. • By putting LABOUR, ENERGY and TIME into land, you get rights to that land. • What makes it property is the relationship between the individual and the land, once labour, energy and time has been put in. • Government ‘wasteland’ issue: Land not occu pied by anyone or property of someone belonged to the Crown. • Maori trace back the land to ancestors. Maori claim to have a clear relationship with land, enforced by previous generations. They be lieve to have the responsibility to be the caretaker of the the land. • Maori had a reciprocal relationship with the land. Therefore Maori believed they belonged to the land and that the land belonged to them. • The Crown asked Maori ‘do you live on, cultiv ate or work on this land?’. If answered yes, the Crown accepted that the Land was Maori property. But any other empty, neighbouring sections would belong to the Crown. • Administration sees that there willbeaproblem:conflictwithClause2oftheTreatyof Waitangi. This problem was shown in letters sent back to England. • Situation: land needed to be put up for sale. This clashed with tikanga because the concept of ‘land sale’ did not exist. THINGS THAT CAN BE PROPERTY TANGIBLE THINGS INTANGIBLE THINGS Manufactured Natural Things that you can’t touch My car, my stereo, Babies, water, oil, A view when you buy a property, names*, my highlighter. animals, plants, air space, motifs, language, ideas or seeds, minerals. inventions before put into tangible form. 27 LAW 121 – Law and Society * Case between Trelise Cooper and Tamsin Cooper , both New Zealand fashion designers. Tamsin Cooper, a new designer, wanted to call her business Ta msin Cooper and trademark it, but Trelise Cooper already had her name trademarked, and didn’t want Tamsin Cooper to be trademarked because it was too similar to her own name. Both sides thought they had very good reasons. Competing rights and natural law questions Examples: • Should water be owned and provided only those who can pay the bill? • What about life saving medication that can only be afford by the very wealthy? • Should people who release animals from laboratory experiments be charged with theft? • Should people be allowed to trade commercially in body parts? • Should a woman be allowed to enter a commercial contract to produce a child for someone else (i.e. be a surrogate mother)? 28 LAW 121 – Law and Society PROPERTY AND THE CRIMINAL LAW What do we want to understand in this lecture? How property and property rights have influenced criminal law, or how criminal law was created with regards to property rights. Background Between 1686 and 1820, Capital Statutes grew from 50 to 200 (“flood of legislation”). Punishment for crimes was capital, which means punishment was the death penalty. Changes in the 17th Century • The signing and passing of the Bill of Rights 1688 (which separated powers). • In separating powers, the Bill of Rights ga ve much power to the ruling classes (link to Legal Realism: law protects the powerful and the rich; underlying power dynamics) • It did not protect the rights of all, only those with property. People with power owned property, and were protected. • Property was seen as the centre and basis of society. Property deified • Property was the measure of all things, including human life and worth. “Even human life was weighed in the scales of wealth and status”. • If you owned property, you were worth much more than if you did not. e.g.1. if a poor person stole from or killed a rich person/aristocrat, the poor person would lose the case instantly; so a clear-cut situation based on who you are. e.g.2. forgers were almost invariably hanged , because “forgery is a stub to commerce, and only to be tolerated in a commercial nation where the foul crime of murder is pardoned”. • Property was held in high esteem. • Property needed to be protected. So it was protected by laws; people who considered doing something (e.g. stealing) to another person’s property were threatened with capital punishment (the death penalty). • These threatening laws were introduced in an ad hoc fashion, and also out of balance. • Statutes (laws) were created to protect property. e.g. there was an English Linen Company who had linen stolen. The company went to the Parliament of the time to get a statute that would protect their linen (property). Stealing linen = death penalty. As a result, there was an increase in offences and convictions , which was however not matched by the number of executions (strange phenomena). What were possible reasons for this? Judicial disobedience? Judges would have disobeyed the order to execute offenders, perhaps because they felt it was too harsh a punishment (link to natural law). However most people agree this was not the reason. It was rather the considerable discretion that judges had that led to this strange phenomena. 29 LAW 121 – Law and Society Hay’s explanation: ideology of law? Majesty of Law • Judges came to country towns once or twice a year. • Purpose of the visits was to show the power of the State. • There was a sense of mystery surrounding the visits. • Eloquent speech was used by the Judges. • There was plenty of drama and IMAGERY. e.g.1. hat picked up and put on head in court = guilty (death penalty) e.g.2. white gloves put on = not guilty Justice of Law • People cannot be arbitrarily taken. • Rules were put in place which judges stuck to in a very formalistic (narrow) way. • People could not be found guilty if not filling the exact criteria set out in the rules. • We always rely on courts who justly judge. Mercy of Law • The majority were pardoned by judges. • Criminals were therefore able to see that they could get away with committing crimes. • This made the State appear kind and compassi onate, especially to those who stole out of necessity (e.g. someone stealing food to live). • Most of the time those individuals from noble backgrounds were pardoned. Someone would speak on their behalf, i.e. when an employer/landlord came to speak. • The system was circular in that it kept the powerful powerful and the rich rich. But do we still see this ideology today? Majesty of Law • The Judge still wears a robe, and up until recently wigs were worn. • Levels of height in the court = level of power, e.g. judge up in high box. • You bow on entering, you stand for the judge. • The Council bows on sentencing, “as your Honour pleases”. • We still have a sense of majesty (formality). Justice of Law • Everything is now regulated by rules. • e.g. the Judge cannot reside over a case where a family member is involved. • e.g. Burden of Truth Mercy of Law • Judges still have discretion (in sentencing). 30 LAW 121 – Law and Society WOMEN AS PROPERTY “So great a favourite is the female sex of the laws of England” William Blackstone’s commentaries on the laws of England • An extensive, systematic work. • Wrote about what the law was at the time, and the discourse surrounding the law. • There were several volumes of his work. • Blackstone was a jurist. He was a thinker whose work influenced the law and society, but was also influenced by the law and society. • Law reflects society, political and economic views, reinforces them and even facilitates them. • During this period there was much privatisation of property. Doctrine during the time A husband and wife are one person in the law. At marriage, a woman’s title ceases to exist. Many subsequent legal implications • Becausethewifeispartofherhusband,th e husband is responsible with providing her with the necessities of life. The husband gets rights over his wife. • The husband has rights over his wife’s proper ty. Everything she owns is passed into her husband’s name. Her property rights are vested in her husband. • The wife cannot own her own property, nor incur debts, sign contracts or enter any legal agreements. Impact of colonisation • Clash with Maori tikanga beliefs – in tikanga, rights cannot be given away as they make part of the Maori culture. • Maori women would lose their land, which is actually their genealogy, to their husbands. This cannot happen because Maori women are inextricably bound to the land, just as Maori men are. History of domestic violence • A wife was not able to leave her marriage. Divorce did not exist. • The husband would get sued if his wife did something illegal, because he is the one who is legally responsible for her. • A husband could chastise his wife in his general governance of her. • Rule of thumb: a man could hit his wife only with a stick the width of his thumb, at a maximum. Changing views and laws • Around 1900 (before/after), divorce was introduced. • For a woman to divorce, she needed to prove that her situation was extremely serious and that if she didn’t divorce she would be subject to ‘near death’. • A woman needed someone to sponsor her so she could take her case. She obviously could not get the financial support from her husband. • After this the issue of domestic violence was not tackled for a while. • Laws gradually changed, but not until the 1970s was the issue tacked again. 31 LAW 121 – Law and Society Domestic violence today • Still a very big problem. • Statistics do not show the right level of domestic violence, because women tend not to report it. They don’t report because there is still a social stigma and because court cases are very traumatic (New Zealand jurisprudence is not at all therapeutic). It was also often viewed that domestic violence should be kept secret, within the family. • Sometimes women reported domestic violence, but backed out when the time for the trial/case came, because of fear of further violence from their spouses. • The legal process is very slow, e.g. getting a restraining order takes a long time. This put off women from reporting domestic violence. Battered Women’s Syndrome • Only recently recognised. • Arises when a woman is trapped in a violent relationship, feeling that she cannot leave. • She has ‘learned helplessness’. • See Ruka case (Tutorial One). 32 LAW 121 – Law and Society INTELLECTUAL PROPERTY: KNOWLEDGE AS PROPERTY Rights to property belong to their owner, who can exclude others from using it. Property is created when labour, energy and time is added to a natural thing. Intellectual property is quite similar, but additional things are added, such as ideas , words, etc. For instance, not only the book but the book containing the ideas and words. Main Intellectual Property Rights 1. Copyright (protection): longer lasting rights over literary, artistic and musical creations, until 50 years subsequent to the death of the creator. e.g. music downloads/songs with similar musical notes/Da Vinci Code case 2. Patents: temporary protection for inventions and design rights to appearance of goods. This means of protection lasts 20 years. To pate nt something, it has to be significantly new. This has a problematic nature – at which point is something significantly new? e.g. Pharmaceutical companies trying to patent their products. Is it morally right for a company to own alife-saving medicine? (think natural law) So pharmaceutical companies, which are in developed nations (e.g. the US), have control over the supply of drugs to developing nations (e.g. Brazil, South Africa). 3. Trademarks: names and labels are protected against imitation (while in use). e.g. The Nike ‘Swoosh’ The trademark represents everything put into the product (e.g. time/energy/labour). Indigenous Cultural and Intellectual Property Rights Indigenous people should have rights to their heritage. Heirntlgees : all objects, sites and knowledge, the nature or use of use of which has been and/or continues to be transmitted from generation to generation. Recent specific violations of Maori indigenous cultural property rights: • When the Spice Girls performed the Haka. • Lego created ‘Bionics’ range of toys which were irrelevantly called Maori names, for example, one Bionic was called Whenua. • Sony, in a Playstation game, created a world similar to a Maori world, which was very violent. There were several Maori connections, but not in context. Maori characters not portrayed pleasantly. Justifications and Concerns of Knowledge as Property Justifications Concerns • Promote research, development and • Dominance of transnational companies in innovation developed countries • Reward inventors and artists • Industrialised countries benefit • Protect quality • Flow of royalties from poor to rich • ‘Moral’ rights of creator countries • Allows conditions on use • Company’s control of essentials of life • Eurocentric concept of knowledge 33 LAW 121 – Law and Society WATER AS PROPERTY The significance of water nowadays? • This natural resource is big business. • The ‘water bottle’ has become quite a tren dy commodity, e.g. Pump/H2Go. Nowadays we feel the ‘need’ to carry them around with us. • Despite being more expensive, we buy bottled water because it is cold (convenient and more preferred to tap water) and because it is well marketed. • Fact: in New Zealand, Nestle and Coca-Cola are the biggest producers of bottled water. Nestle sells water under 77 different brand names while Coca-Cola buys water brands. • So there is a big market in supplying wate r, which makes for competing interests. For example, the competing interests of the Government and multinational companies (economic interests) and people (necessity). John Locke. Locke believed there was enough for everyone . He was writing at a time where America was just being settled when th ere was plenty of land, resources and water. If a waterhole was claimed by someone, no one would care. Ho wever if all the waterh oles were claimed, problems would arise. Can someone own waterholes when other people need water? Locke was a natural lawyer, as he always considered God in his beliefs and arguments. Privatisation of water in Bolivia Bolivia: Location Background and the first step • Bolivia’s main industry was cocaine. • The United States attacked this industry because of its clear negative impact when imported into the country. As a result, Bolivia went deep into debt and there was much political, economic and social unrest across the landlocked country (see right). • Semapa Company ran the Bolivian water system. Unfortunately they were making a mess of things. 40% of people in Bolivia did not have access to water, and those who did found that the water was not necessarily healthy to drink. • People who could not get water had to buy overpriced water from those who brought it in; essentially extortion. This water was responsible for the deaths of many people. • Bolivia went to the World Bank for money ($30 million). The water system needed to be privatised. A contract was tendered, and many companies had the opportunity to apply. Only one company offered (after a long time), called AdT or Aguas del Tunari. • AdT did not want to follow the initial government plan. They had the power to do this because there were no other offers. Instead it would fix Bolivia’s poor infrastructure. Impact of AdT (Aguas del Tunari) • Was successful in a short time period. AdT had increased the water supply by 30%. • However government rates had increased by 35%. This was to fund AdT’s work and to make money to pay back the $30 million debt. • AdT had convinced the government to structure rates so that poor people had a small increase in rates while rich people and greater users of water had a higher increase in rates. This led to water wars, riots, deaths = attempt to chase out the water companies. 34 LAW 121 – Law and Society BOLIVIAN GOVERNMENT Aguas del Tunari (AdT) Joint venture company International Water (55%) Spanish Corporation (25%) 4 Bolivian Companies (5%) Bechtel Edison STRUCTURE OF VENTURE (California) (Italy) Further Results and Analysis • The national government has introduced legislation to do with land and water. • Company executives (of AdT) fled and the government cancelled the contract. AdT sued the Bolivian government for $25 million, as an international arbitration. • The Bolivian government did not have a treaty with Bechtel (a Californian company) nor with Edison (an Italian company). However, International Water was incorporated in the Netherlands, which did have an agreement with Bolivia. This meant that AdT could sue the Bolivian government internationally. • AdT had strong legal rights beca
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