New Zealand courts should use international law to develop the common law, where there is a lack of understanding in specific areas. Through an increasingly global world, New Zealand is able to compare its own laws with other jurisdictions when attempting to create new common law. Furthermore, international law can aid courts in interpreting certain laws when there is a gap in New Zealand law. Rather than beginning with nothing, international law to offers us a framework for approaching novel situations.
When it comes to common law, New Zealand is a young country and as such has not had the experience to flesh out its laws, unlike other jurisdictions. Hence when cases with new issues are presented to judges, by considering the judgements made
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For the most part, courts will prefer to have something to rely upon – even if it is the decision of a foreign court interpreting a different bill of rights – than to reason from scratch.”#
Baigent’s case clearly shows this, where the issue was whether a breach of the NZBORA by the Crown can be remedied. Remedies were eventually rewarded after citing international law with the judge stating that, “compensation is a standard remedy for human rights violations. There is no reason for New Zealand jurisprudence to lag behind.” # In such cases, international law can help act as a guide when judges have to apply statutes for the first time without precedent from their jurisdiction. Courts can also use International treaties to fill in gaps that are present in the common law. Baigent’s case also shows that international treaties can act as a means of interpreting certain New Zealand statutes. By refusing to grant remedies for its breach of the NZBORA, it would have violated the ICCPR ratified by New Zealand. Moreover, international treaties serve to act as a check against judges when there is no set precedent. As international common law is only persuasive, treaties and other agreement set a standard which can hold judges accountable for their
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It prevents an inward-looking view of the law which would create insularity instead of diversity. Additionally, it gives New Zealand common law a sense of uniqueness which takes into account the culture of New Zealand. Hosking v Runting is an example where Gault J argued for a tort of privacy, citing that “it will allow the law to develop with a direct focus on the legitimate protection of privacy.” # By considering how other jurisdictions handle privacy, a better consensus can be made on the issue that was
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
Harris, BV, 2002, ‘Final appellate courts overruling their own “wrong” precedents: the ongoing search for principle’, Quarterly Review, vol. 118, no. 408, pp. 412.
Drumbl, M. B. (2007). International Decisions. American Society of International Law , 101 (4), 841-848.
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
Australian law is constantly evolving alongside her society, this process of evolving the law is more commonly known as “Law Reform”. Some of the reasons for law reform may involve the changing of social values, the introduction of new concepts of justice and finally technology. This essay will evaluate the role of law reform in addressing emerging technological issues and enforcing rights with reference to one case study.
Common law is the concept that some of the core principles that form the basis of the English legal system come from judges as opposed to Parliament, with rulings from case to case developing predicedent, which forces lower courts to follow princaples set by higher cores but allows higher courts to overrule the descisions of lower courts. This allows the courts, over time to refine law. The courts can even decide to ignore rulings when considering to set it as precident with enough justification, this allows rooms for special cases. As a drawback to common law, the courts are sometimes unwilling to overrule long standing precidents. Slapper,...
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
...th 2001). Roth argues that the concept of international jurisdiction is not a new idea but was exercised by the US government in the 1970 after an aircraft hijacking. Also the war crime courts established after the end of World War II exercised international jurisdiction. In fact the Geneva Convention states that is a person regardless of their nationality should be brought before the court of any state in which that person has committed grave breaches of law and convention. Roth states that the concept of international jurisdiction is not a new one but that only in recent years have states been willing to act on universal jurisdiction and go after criminals of the international community regardless of their stating or power within the international community. Roth believes in the ability and authority of international organizations and institutions (Roth 2001).
According to Jackson (1988), the persistent myth that no real law existed in New Zealand prior to 1840, is a racist and colonising myth used to justify the imposition of ongoing application of law from Britain. Pre-European Maori society regulated behaviour and punished wrongdoings through the sanction of muru. Jackson defines muru as, “a legalised system of plundering as penalty for offences, which in a rough way resembled (the Pakeha) law by which a man is obliged to pay damages” (p.40). Due to the law brought and imposed by settlers, it rendered Maori’s values, ways of thinking, and living. This essay aims to discuss the Maori social and cultural values expressed in the sanction muru. Furthermore, how the British opposition to the use of
The lack of automatic international compulsory jurisdiction renders ICJ inferior. Therefore the argument that referring to this court as the ‘World Court’ implies it is superior; an international equivalent of a national supreme court is null and void. Generally a supreme court is the highest ranking court. Its ruling is not subject to further review and therefore the disputing parties ha...
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
Von Galhn and Taulbee. 2013. Law Among Nations. An Introduction to Public International Law. Pearson Education.
This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents. In addition it will discuss how the developments in the powers of the courts now also allow them to depart from these precedents to an extent.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...