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

Course Code
LAW 121G
Dr.Smits, Professor Morrow,andotherguestlecturers
Study Guide

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LAW 121 – Law and Society
Part A: Concepts of Law – a taste of LAW 316: Jurisprudence
Traditional European Concepts of Law 2
Traditional Maori Concepts of Law: Tikanga Maori 4
Legal Realism 5
Critical Legal Studies 6
Critical Perspectives: Feminism 7
Legal Pluralism 9
Part B: Branches of Government – a taste of LAW 211: Public Law
The Constitutional Origins of New Zealand 11
Declaration of Independence and the Treaty of Waitangi 13
Parliamentary Supremacy (Parliamentary Sovereignty) 14
The Balance of Powers and the Enactment of Law 16
Courts and Juries 18
Fitzgerald v Muldoon 21
Finnigan v NZRFU 23
The Sealord case 25
Part C: Law and Property – a taste of the various property law papers (301, 432, 471)
What is Property? 27
Property and the Criminal Law 29
Women as Property 31
Intellectual Property 33
Water as Property 34
Pluralist Approaches to Property 36
Part D: Law and Rights – a taste of Public Law (LAW 211) Criminal Law (LAW 201)
Defining Crime 38
Homosexuality and the Criminal Law 40
Cultural Defences 42
Individual Rights and Police Powers 44
The Criminal Justice System 46
New Zealand Bill of Rights Act 1990 48
International Human Rights 50
Law and Rights in Times of Crisis 52
Part E: Law, Colonisation and the Treaty of Waitangi – a taste of Public Law (LAW 211)
The Annexation of Aoteoroa 54
The Impact of Colonial Legislation on Maori 57
The Impact of Judicial Decision on Maori 59
The Waitangi Tribunal and the Settlement Process 62
The Foreshore and Seabed Debate 64
Constitutional Change: Where To From Here? 67

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LAW 121 – Law and Society
Positive Law Natural Law
Law is that which is stated to be law by a
recognised authority. Positivists see law as
gaining validity by adherence to a particular
process of creation. Thus in New Zealand, a law
is a rule made by parliament and found in a
statute. Law is anything posited (laid down) as
law in accordance with the requirements of the
legal system. Also called positivism.
Natural Law theorists see law as gaining
validity from its adherence to certain
independent principles, such as morality,
rationality or justice. The validity of the law
depends not only on the fact of enactment
according to the requirements of the legal
system in question, but also on some factor or
factors outside of that system.
Positivist Theories Natural Law Theories
John Austin
Law is a command from a sovereign, who is
habitually obeyed, that is backed by a sanction
(threat of penalty if not habitually obeyed).
Each of these elements is problematic.
Hans Kelsen
Kelsen’s Pure Theory of Law: each law is
validated by, or validates, the norm which
precedes or succeeds it in the hierarchy of
norms, and the validity of the hierarchy as a
whole is validated by the ‘grundnorm’. This
norm is presumed by its very nature, so cannot
be created. It is presumed as a starting point and
a logical necessity. Thus: law claims to be law by
recourse to another, higher, rule. It is assumed a
fundamental norm exists upon which other
norms are built, which justify the law.
HLA Hart
Hart’s Rule of Recognition:
- Primary rules govern citizens
- 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
Thomas Aquinas
‘Product of nature’
Moral rules act as a framework within which
the law must exist. If the law goes beyond, or
conflicts with the framework, it loses its validity
as law. Aquinas believes there is some moral
order that is intrinsic in the nature of the world
and with which the law must comply.
John Finnis
‘Based on reason’
Law must answer to some fundamental
requirements of logic and reason. Where a legal
system rests on a foundation which is justifiable
in accordance with a common understanding of
what is proper, its rules are legitimised and
validated as law. Thus, a legal system rests on
foundation of what is proper and good. For
example, the laws of a tyrant do not necessarily
have to be obeyed because logically and
reasonably, they do not reflect an understanding
of what is ‘right’ and ‘proper’.

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LAW 121 – Law and Society
Positive Law Natural Law
Is Ought
Sovereign (all power) Nature/God
Legal if passed by ruler through
the right procedure
Legal if just and moral
Must obey Disobey if unjust
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