Hart believes that law is law and once it has been created, judges don’t apply morals and there are core seled meanings in both

instances.

The ‘value’ based stage of law is dealt with by parliament, and aſter that law can be primarily dealt with without

reference to morals

Not easy to align Tikanga with Harts posivism. In Harts theory there is parliament as the centralized instuon of making the

law and the judiciary applying it.

There is a separaon between law and morality. But with Tikanga, morality and values are the

law itself – maori don’t have rules that are disconnected from the reasons of having the rules

Hart and Primary and secondary rules

Hart thinks that legal systems need both primary and secondary rules.

Hart says primive sociees only have primary rules of

obligaon and don’t have secondary rules

Primary: Tikanga does have primary rules about what can and cannot be done.

Secondary:

Lecturer thinks that Tikanga does however have secondary rules too, but they are more difficult to recognize in

Western legal order.

1.

Rules of recognion – could say Tikanga recognizes a rule when there is a community consensus that a rule is

right/correct, when it aligns with the fundamental rules of Tikanga, or when it has some kind of ancestral

precedent

2.

Rules of change – A possible example is that in some situaons a rule could be changed in a hui or a meeng,

or rules could be changed for things like Covid (see hongi example in first lecture)

3.

Rules of adjudicaon – Can have a rule – whatever the chief or the elder says applies. Oſten people with high

levels of mana will dictate how a case will be resolved

These are some examples of how Tikanga could possibly fit within Harts theory. Tikanga definitely has primary rules – and there

is possibly for an argument of Tikanga being squeezed into some categories of Harts secondary rules;

although these rules are

different from the Western legal system and are not general (but more specific to communies) but could sll make the

argument that Tikanga does fit into Harts ideas

Dworkin

Dworkin believes principles underlie legal rules and they only come out in hard cases. This is a contrast to kanga where the

main thought is the principles – the rules are just the manifestaon of those principles.

Dworkins system is fundamentally different and Dworkin probably wouldn’t have much to say about Tikanga being law

Cultural

•

Law is an emanaon of culture

and cannot be divorced from it. Law is a universal concept and all cultures

have law. This is the view that law are self-contained systems linked to social pracces and basic core values

that hold a society together.

•

Law:

o

controls behavior;

o

transmits important ideas within a culture; and

o

recognised by the community as binding

Tikanga CLEARLY fits within this perspecve but the queson is how far does it fit? Interesng quesons as to

whether something derived from a parcular culture counts as law – bible condemns adultery but is this law?

Culturalist perspecve of law:

Basic idea that law is an emanaon of culture and cannot be divorced form it, if law

has these elements then that is law. Tikanga falls easily into this category (see slides).

Ulmately you end with quesons - are there advantages and disadvantages in doing so?



Theorists are all based in English/American systems, aempng to describe a western state legal

system/. Some are trying to do a general account, but most aren’t'.



There is an advantage in undertaking an exercise to see the limitaons and also to evaluate the

approach you take to tkanga and think about whether you see it as a living breathing system etc.



There is a power dynamic that the theories set up which supports the power structure/theory that a

tstate legal system which complies with those theories is somehow superior.