TIKANGA EXAM.docx-TIKANGA What is Tikang...
TIKANGA_EXAM.docx-TIKANGA What is Tikanga Maori? 
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TIKANGA EXAM.docx-TIKANGA What is Tikanga Maori? 
TIKANGA_EXAM.docx-TIKANGA What is Tikanga Maori? 
TIKANGA_EXAM.docx-TIKANGA What is Tikanga Maori? 
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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
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.
Lecturer thinks that Tikanga does however have secondary rules too, but they are more difficult to recognize in
Western legal order.
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
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)
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 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
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.
controls behavior;
transmits important ideas within a culture; and
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.

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