Legal and Social Justice, Autonomy and Responsibility, and Traditional Maori Social Control Systems

Legal and Social Justice Scenario: A Group of 800 Shipwreck Survivors on Limited Resources

Answer any TWO questions from this section

Scenario: A group of 800 survivors of a shipwreck wash ashore a small island with limited resources. The ship was relocating refugees from a complex civil war, and representatives of each of the various factions are included in the group of survivors. The group’s size is such that resources will become scarce. In the group are males, females, children, infants, and a number of very old people of varying abilities. There is no hope of rescue.

1. Discuss both the ‘hows’ and the ‘whats’ of devising a system of justice for the island.

a. How could it be made to have ‘oughtness’ for the members of the group?

b. What might be the options and what might be some of the concerns needing to be addressed?

? For example (these do not limit you):

2. Should there be adopted a private or communal ownership of the fruits and means of production? On what basis would which theorists decide? Why?

3. Should there a system of formal equality between legal persons or one which formally acknowledges the differences between legal persons? On what basis would which theorists decide? Why? (33.3 Marks)

Scenario: A young woman, Samantha, has nearly completed her neurosurgical training. Samantha is the married mother of two young children and the only remaining child of an elderly couple for whom she provides care. Samantha is riding a recently purchased motorcycle with no emission controls. She is not wearing a helmet, although a statute requiring that motorcyclists wear a helmet has recently been enacted. It has not yet been tested in court.

The motorcycle was manufactured in another country by forced child labour and from materials produced in environmentally destructive ways. This made it very economical to buy, an important fact for the Samantha whose family finances are a bit stretched due to her training and responsibilities. Her partner drives the family car, which, due to economies, Samantha has fitted with second-hand car seats. The car seats do not meet recently updated state imposed safety requirements. Samantha knows this, but her partner is unware of that fact.

Samantha pulls into an intersection, into the appropriate lane, which is clear of traffic. As Samantha makes the turn, her properly fitted and unworn back tire blows out. The oncoming car in the other lane immediately swerves to miss her, but there is a collision. The car is Samantha’s partner’s, with their two children in the back. Samantha is vaulted off her motorcycle and through the car headfirst. To Samantha’s partner’s shock and horror, the two children are very seriously injured due to the limitations of their car seats. Samantha receives a serious brain injury, is hospitalised in a public hospital and will never be able to complete her medical training.

The Autonomy and Responsibility Scenario: Samantha’s Motorcycle Accident

Samantha embraces autonomy and believes government has NO legitimate authority to tell her what to do, to interfere in her private family life, nor to tell her how to raise her children. She lives in a jurisdiction with a superior law Bill of Rights which specifically protects the liberty of the person, and which accepts that the harm principle sets the appropriate boundaries of adults’ autonomy.

A.  Specific legalities aside, using the various theories around the appropriate boundaries of autonomy, harm and responsibility, and categories of paternalism, please discuss under which views Samantha ought to be held responsible for any harms to self or others arising in the above scenario. (33.3 Marks)

B. For this part, incorporate the specific legalities set out in the scenario and assume Samantha lives in a typical common law jurisdiction. If a case came before that court, would whether the judge was following Hart’s or Dworkin’s theory of judging make any difference to the determination of which, if any, harms for which Samantha ought to be legally held responsible? Please explain your response in terms of the methods and philosophies of the two theorists, their predecessors and their critics. (33.3 Marks)

The US Declaration of Independence 1775 reads:

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”

Which Western legal theorists would agree with this statement and which would not? Why or why not? (33.3 Marks)

Some argue that numbers should matter when it comes to how we decide what ought to be a rule, what ought to be a law or who ought to have rights. Do you agree? Why or why not? Critically discuss, comparing and contrasting relevant legal theories. (33.3 Marks)

Answer one question from this section

“The system of tapu is a series of prohibitions which acts in the same manner as a moral and civil law. Its influence covers a wide range of activities, life, birth, marriage, sickness, death, burial, exhumation, and every kind of work. No one in the community is free from its very strict rules. To disregard them means disaster to the individual.”

Discuss and evaluate the above statement with reference to traditional Maori social ordering and control systems. (33.3 Marks)

“Ko te mahi a te rangatira he raranga tangata.”

(Weaving people together is what chiefs must do)

Describe how the above referenced mahi was achieved in traditional Maori society and the impact that colonisation had on Maori leadership models. Do you think that modern Maori leadership is performing adequately? In your answer use examples of past and present-day leaders. (33.3 Marks)

“Tikanga M?ori are not frozen in time although some people think that they ought to be. There are some citizens who go so far as to say that tikanga M?ori should remain in the pre-Treaty era and stay there. To them tikanga M?ori has no relevance in the lives of contemporary M?ori. Individuals who think this way really have no understanding of what tikanga are and the role tikanga M?ori have in our ceremonials and in our daily lives.”Hirini Moko Mead in Ng? Tikanga M?ori (2001)

Critically discuss the above statement, explaining tikanga, including concepts it encompasses, and its importance, drawing on the material that you have covered this year in the course to illustrate your answer. (33.3 Marks)