Common Law v Customary Law: The Case of Takamore
Takamore v Clarke
The Supreme Court’s decision in Takamore v Clarke raises the question of whether New Zealand permitted Ms. Clarke (the partner and executor of Mr. Takamore) to dispose of his body. When Mr. Takamore died, his body was taken by his extended family, and buried, against the wishes of Ms. Clarke. The judges of the Supreme Court agreed to dismiss the appeal by Ms. Takamore (sister of Mr. Takamore). As such the Supreme Court ordered the body to be exhumed and reburied in a place agreed to by Ms. Clarke.
The judgment is important for two reasons. It is significant because the Supreme Court made the position clear in New Zealand about what happens with regards to a deceased body. Tipping,
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Judge Durie, notes that in discussing the Maori customary law, an important word that conveys what custom is, is the word tikanga. Dame Metge draws a distinction between ture (law) and tikanga (custom).
Tikanga Maori and Common Law
The Takamore judgment was an attempt to settle the law surrounding who has the body for the purposes of burial. The decision is significant as it regards Maori customary rights and tikanga. The Supreme Court’s position was to consider the connection between Maori customary law and British common law.
The Supreme Court looked at the decision differently from the Courts behind. The Courts below considered that the common-law doctrine could recongise tikanga as law, so long as the Court was certain that it meets criteria. The criteria is that custom must have existed since time immemorial, it must be reasonable, certain, continuing, and non-extinguishable. If a custom meets this test, that it could trump other common law
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The whole thing, we were still grieving and we were not given a say about where our Dad was to be buried, if they had their way, we would not have even known. Our father had consulted his father while he was alive, and our mother after he died. Takamore v Clarke is a case about forced removal of a body, my Dad’s case was similar, albeit over several years.
If my father’s family had been open about their intentions from the start, we could have had an open and frank discussion. Takamore’s family should have had an open and frank decision with Ms. Clarke and her children. If the facts of the case were different, then the results of the questions surrounding whether tikanga could be recongised as common law might be different. The judges considered the forced removed of the body to be unreasonable, a factor that contributed to the judge’s decisions. What if the custom was more oriented to who the primary decision makers were?
Conclusion
In conclusion, I feel that based on the facts of the case, Takamore v Clarke was decided rightly. Had the facts been different. The case might have had a different
Brennan (Majority Decision): Justice Brennan read the decision which stated that the ruling from the previous court was not consistent with decisions from other courts regarding the same types of cases (Pembaur v. Cincinnati, 1986).
They reasoned that since Barnett didn’t either argue against the dismissal of negligence claim at the time of its dismissal or include the claim in subsequent revisions, she had no support for her claim that the court had erred in dismissing her claim of negligence. The court also ruled that the language of section 3-108(b) of the Tort Immunity Act meant that complete, unconditional immunity was to be offered if supervision was present. As a result of this interpretation, the issue of if the lifeguards had committed willful and wanton misconduct was rendered irrelevant. Since the issues of material fact raised by the appellant weren’t actually issues of material fact, the Supreme Court affirmed the District and Appellate Court’s motion and subsequent affirmation of summary
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Sloan, I. The Right to Die: Legal and Ethical Problems. London: Oceana Publications, Inc. 1988.
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"Supreme Court of New South Wales." R v Maglovski (No 2) [2013] NSWSC 16 (4 February 2013). http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2013/16.html?stem=0&synonyms=0&query=title(r%20and%20maglovski%20) (accessed October 12, 2013).
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Locke, Mandy. “Study: End Death Cases, Save Money.” The News and Observer (2009). ProQuest. Web. 22 February 2010.
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