Daily Archives: 21/09/2011

Natural Law Theory

What constitutes law and why do most people, today, unconsciously obey it? In this lecture, we will examine natural law theory with a view to understanding the relationship between law and morality.

Natural law theorists assert that humans possess an intuitive understanding of what is moral and what is immoral, what is right and what is wrong. From a natural law perspective, this understanding is embodied in a universal code of moral principles to which all humans must abide. Formal laws, the kind that you and I deal with everyday, are merely meant to formalize the moral principles we already recognize. If the law champions these morals, then it must be obeyed; if not, then it must be ignored.

But morality is subjective, meaning that people might disagree over what is right or wrong. Should marijuana be illegal? What about homosexuality? Prostitution? How do we determine which laws are moral and which are not? Which to obey and which to ignore?

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Tikanga

Today, Tikanga Maori is often regarded as a series of norms that were used to maintain law and order within customary Maori society. Maori scholars reject this view as superficial, pointing out that Tikanga is a holistic system that has regulated social, economic, spiritual, and even environmental aspects of life right through to the present day. This legal code is rooted in a Maori worldview that is informed by cosmology (spirituality), whakapapa (common descent that binds generations), collective social relations among whanau, hapu, and iwi, and the ultimate goal of maintaining balance among the diverse elements of Maori society.

In this lecture, we examine some of the core concepts of Tikanga. We also consider the differences between Tikanga and the formal New Zealand system. Is it possible for two legal systems to co-exist in a single territory? Mighet each borrow from the other and better adapt to dynamic social norms? Or, as some suggest, must one inevitably dominate the other?

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Positivist Legal Theory

In contrast to natural law theorists, legal positivists assert that laws are merely a compendium of rules designed by a sovereign (usually the state) for the regulation of society. It is NOT, they suggest, a universal moral code to which we must submit. In fact, laws retain their validity irrespective of their perceived (im)morality, so long as it is properly made (pedigree) by the recognised law-making authority. People do not obey the law because they feel morally inclined to do so, rather because they respect the legitimacy of the law-making body and fear that the state’s coercive forces (police, prosecutors, etc.) will punish them if they do not.

If this is so, how do we distinguish between good law and bad law? Must we obey all laws simply because the state tells us to? What if the law calls for behaviour that we consider immoral? How do we reconcile our legal duty with our moral preferences?

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