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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 19 April 2015
Introduction
Gay Morgan
The University of Waikato School of Law was founded in 1991 to provide a
professional legal education, to develop a bicultural approach
to legal
education, and to teach law in the contexts in which it is made and applied. The
Yearbook of New Zealand Jurisprudence is usually an annual collection of
papers contributed by participants in the Staff Seminar Series of the University
of Waikato School
of Law or by participants in colloquia hosted by the Centre
for New Zealand Jurisprudence (CNZJ), a Centre which is dedicated to
the
development of a uniquely New Zealand jurisprudence. The Yearbook is
published in conjunction with the CNZJ and aims to stimulate and to contribute
to the development of New Zealand jurisprudence
by publishing articles, essays
and other forms of analysis and comment which directly address or are relevant
to issues arising in
New Zealand jurisprudence. This year the Yearbook has drawn
its papers from the 2005 Australasian Law Teachers Association annual
conference, which had the theme of ‘One Law for All’. The articles
in this issue are contributed by scholars from around
Australasian and
Africa.
These articles canvas a broad range of contemporary issues, each tackling the
problem of justice demanding a uniformity of treatment
and a recognition of a
fundamental sameness of those seemingly diverse while also demanding that
relevant differences be recognized
and accorded differential treatment. The
tensions inherent in the idea of equality, treating likes alike and differents
differently,
are such that they push some to query whether equality has any
meaning at all. Nonetheless, that concepts of universalism and equality
have
been a potent force for justice in law, forcing legal systems to articulate
persuasively why these are indeed like persons or
situations and these are
different. That requirement has been a deep part of the genius of the common
law.
In this issue many of the tensions inherent in the idea of equal treatment for all in the law are considered. If there is to be one law for all, which law should it be? Should it be duty-based or rights-based? Should it be a law which recognizes differences between the strong and the weak? Should duties be based on biology or acts? Why should the answer change if we are considering parents and children rather than gender? If the basis for equal treatment is equal status, how do we decide when someone is in one category or another? Is rationality the only determinate of status, or can citizenship legitimately matter? Can location legitimately matter? Size? The knotty problem of equality
ii Yearbook of New Zealand Jurisprudence
Vol 9
and equal treatment in law requires us to determine who is equal to whom, for
what purposes and in what circumstances. Do we all have
equal rights? If so, how
then do we justify national boundaries, differences in opportunity, differences
in living conditions and
so on? How do we justify treating children differently
than adults? How do we determine when one becomes the other? Once we have
any
categories in law, we must justify the differing treatment that arises from
having that category. The reasoning used to justify that
category as demanding
special or different treatment is then available to justify other categories as
similarly requiring differential
treatment. This inevitably leads to the
questions of which categories should be recognized as legally relevant and which
should be
ignored as irrelevant. This sorting is a primary business of law, and
ultimately raises issues about viewing people as properly categorized
as
primarily being members of a cultural, a religious, a financial, a professional
or a political community, with identities and
interests uniquely commensurate
with that membership, which the law should recognize, in order to treat likes
alike, or viewing people
as properly categorized as relatively fungible
individuals coming together to make up relatively fungible sorts of groups, all
subject
to like sorts of laws, be it a nation state, a corporation, a market, a
religious, an ethnic or a global community, in order to treat
likes alike. Which
is the correct view of equality and justice, and how to balance these tensions
and competing claims, are perennial
questions of interest to us all, as lawyers,
as legal scholars and as human beings. These are the big issues of our times,
and therefore
this is a big issue of the Yearbook.
The articles consider a diversity of problems raised by the idea of one law for all. In the international arena, should any boundaries or differences be recognized, between nations and citizens of nations? International ‘law’ encompasses national communities, some of over a billion persons, some with a few thousand, as well as mediating between those which are powerful and those which are not. Should it recognize these differences? Is it just for the criminal law to protect those it deems especially vulnerable from choices available to the robust? If so, how do we determine the vulnerable? If not, how do we justify treating children differently than adults? We see laws, whether in business, land, or governance, which treat likes differently, with unjust results, and law which treats some professions (such as law, surprise surprise) differently on the basis that they are different with a special public interest requiring different rules. How should law determine which claims of difference to recognize? Should the mere form of a business equate with a difference in legal treatment? It surely does now. Should different forms of dispute resolution be available, or should every dispute be decided in a uniform forum, with uniform processes, by uniformly trained people? These
2006 Introduction
iii
questions are also inherent in the idea of ‘One Law for All’. The
same person that would answer yes to one of these questions
may very well answer
no to the next, depending on their interests and perspective.
Each of these articles engages with how law categorizes or should categorize
like with like, unlike with unlike. Do borders justify
different laws for
different nations? Internally? Externally? Does location have any relevance for
equal treatment in law with the
emerging global space-time of the internet? This
wonderful collection showcases a wealth of Australasian talent, and highlights
the
deep problems in justly developing and applying the appealing moral
intuition that there should be one law for all. Which law? For
which situation?
For all what? Which forum for decision? Which decider? How trained? Once we open
the debate, we quickly find ourselves
back to Aristotle’s near tautology,
that justice and equality mean treating likes alike and differents differently,
and the
process of deciding just what that means in any given situation.
Law’s greatest, and perhaps eternal, challenge is to pursue
that goal,
through an open and ongoing conversation that engages with the competing claims
of likeness and of difference that emerge
from our human endeavour of being in
society. The articles in this issue attempt to do just that.
Our job as law teachers is to prepare our students to engage in that ongoing
conversation effectively. The last article gives us some
food for thought about
how we do and how we might go about doing that.
As a note to our readers, in 2007 the Yearbook will be expanding its horizons
to include more consideration of the social issues inherent
in law and in
jurisprudence.
The Editor would like to thank the authors for their contributed articles and
the referees to whom these articles were sent for their
helpful contributions.
The Editor would also like to thank Janine Pickering for her assistance in
preparing this volume and for her
absolutely steady and cool hand at the tiller,
and, to thank Jane Walker and Amanda Colmer for their invaluable assistance in
getting
this edition print ready.
Gay Morgan
Editor
Yearbook of New Zealand Jurisprudence
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URL: http://www.nzlii.org/nz/journals/NZYbkNZJur/2006/1.html