Past Events: Auckland Branch
Auckland Branch Event
Dr Nicole Roughan, visiting at Auckland’s Law Faculty will deliver a talk entitled:
Relative Authority:
A Step towards Pluralist Jurisprudence
Time: 5.30pm. Thursday 28 February, 2013
Venue: Forum 4, Law School, University of Auckland.
Abstract:
What happens when authorities conflict? Does it even make sense to talk about conflicts of authority? Conflicts between authorities are familiar from constitutional, international and transnational legal practice, but for theorists of authority, they are difficult to explain and/or justify. In this presentation I argue that in order to explain conflicts, as well as relationships of coordination and cooperation between multiple legal authorities, we need: i) a conception of ‘relative authority’ in which authority is mutually dependent between authorities; and ii) a theory of legitimate authority in which appropriate inter-authority relationships are a condition of legitimacy. This account of relative authority is one element of a fully-developed pluralist theory of law, which occupies a controversial but necessary position in the field of jurisprudence.
Dr. Roughan is currently a Visiting Academic at the University of Auckland Law Faculty. She has lectured in Jurisprudence at the University of Cambridge, and at Victoria University of Wellington. Dr Roughan holds JSD and LLM degrees from Yale Law School, and has research interests in philosophy of law, ethics, transnational and constitutional law. Her presentation will defend the central thesis of her book, ‘Relative Authority’, forthcoming with Oxford University Press.
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Book Symposium
Basic Equality and Discrimination: Reconciling Theory and Law. Ashgate Press 2011.
By Dr. Nicholas Smith, Massey University
With Commentaries by:
Professor Janet Mclean, University of Auckland, Law
Dr. Kathy Smits, University of Auckland, Political Studies
Time: 6.30pm, Tuesday, 16 October, 2012
Location: Arts 1 Building, Room 217 University of Auckland
Abstract: What role should equality play in law and politics? This new book by Dr. Smith argues that human rights lawyers should step back from the business of trying to steer courts towards vague equality goals. In its place, lawyers and politicians must confront fundamental moral questions currently obscured by a conceptually empty discourse of equality. Only once we dispose of that discourse can we hope to draft coherent and workable anti-discrimination law.
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Dr. Grégoire Webber, of the London School of Economics will deliver a talk entitled,
On the Grammar and Structure of Rights
Time: 12.00pm. Wednesday 8 August, 2012
Venue: Forum 4, Law School, University of Auckland.
Abstract:
The talk explores the relationship between human rights instruments and legislation—the former appealing to two-term, thing-oriented rights and the latter structured around three-term, act-oriented rights. Various aspects of the law (tort, contract, property, criminal, administrative) are shown to seek to respect and instantiate a sound grammar of rights. The essay concludes with the argument that ‘human rights law’ should look beyond (justiciable) human rights instruments to legislation as the locus for the ‘guarantee’ of rights.
Dr Webber read for the DPhil in Oxford, served as a clerk in the Supreme Court of Canada and a senior policy advisor with the Privy Council Office (the Canadian equivalent to the Cabinet Office), and is the author of The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press, 2009).
All are welcome to attend
The Branch is co-sponsoring this event with the Auckland Faculty of Law
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Professor Gerald Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law at the University of North Carolina at Chapel Hill will deliver a paper entitled:
‘Law’s Covenant: The Ethos of the Rule of Law’
Time: 1.00pm. Thursday 28 June, 2012
Venue: Forum 4, Law School, University of Auckland.
Abstract:
The rule of law, I maintain, comprises (a) a set of standards for the conduct of governmental agents, (b) a set of core legal institutions, and (c) set of relationships and responsibilities rooted in core convictions and commitments. It is useful to refer to the set of standards and institutions as the ideal of legality and the set of relationships, responsibilities, convictions, and commitments as fidelity to law. Legality and fidelity combine to form the ideal of the rule of law. My thesis is that we do not adequately understand the ideal of the rule of law without giving full credit to fidelity to law.
Fidelity, I argue, is expressed not only in compliance with law and with standards of legality, but also in the active taking of responsibility for the rightful condition, in particular responsibility for holding partners to their responsibilities in the partnership. Fidelity involves mutual accountability as well as reciprocal compliance.
Professor Postema is one of the world’s foremost legal philosophers. Author of over forty chapters and articles, his books include Bentham and the Common Law Tradition (Clarendon 1986/1989); Jeremy Bentham: Moral, Political, and Legal Philosophy (Ashgate 2002) and Philosophy and the Law of Torts (CUP 2001). He is associate editor of the 12 volume, Treatise in the Philosophy of Law (Springer 2005, 2007, 2009, 2011). In August, 2011 he published Legal Philosophy in the Twentieth Century: The Common Law World with Springer.
The Auckland Branch of the Societyis co-sponsoring this event with the Auckland Faculty of Law.
Everyone is welcome to attend.
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Professor Jim Evans, University of Auckland will deliver a paper entitled:
Some Difficulties with having Law
Time: 5.30-6.30pm. Tuesday 29 May, 2012
Venue: Small Lecture Theatre, Law School, University of Auckland.
Abstract:
Is it a good thing to be governed by clear, detailed, rules? Having clear, detailed, rules gives us stability and the ability to plan our lives. But these rules can be too blunt or tie us down to decisions that are inadequate or wrong. The mismatch between good decision-making and decision-making solely according to such rules is too large to be tolerable. So, the question now is, “How can a society get the benefits of the rule of law without suffering too much from its potential defects?”
Professor Jim Evans is a Professor Emeritus of Auckland University, who retired from the Law School in 2005. He holds a PhD from Cambridge. His primary area of research is legal philosophy, particularly legal reasoning, on which he has published extensively. He is currently working on a book on the causes of problems of statutory interpretation.’
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Rights and Choice
Speaker: Professor Robert Stevens
Time: 5.30-6.30pm. Monday, 16 April, 2012
Venue: Forum 4, Law School, University of Auckland.
Abstract: This paper defends the claim that it is characteristic of rights that they protect our ability to choose. This descriptive claim about the law has implications for the rights we have one against another regardless of what the law, here and now, happens to be. This is because our common law both claims to be, and is, a determination of the (moral) rights we have one against another which, absent the law, are underdetermined: “positive law can serve as excellent guides”[1] of the moral position. If these terms are thought helpful, my claim is descriptive and normative, not one of analytical definition.
Professor Robert Stevens joined UCL in July 2007. Previously he had been a lecturer in law at the University of Oxford and a Fellow and Tutor in Law at Lady Margaret Hall where he had taught from 1994. Professor Stevens has taught and lectured widely within the Commonwealth (Australia and Canada) and Continental Europe (Germany, the Netherlands, Spain). He has lectured for the Judicial Studies Board, and holds a consultancy with Clifford Chance. Professor Stevens’ research interests cover a wide range of topics within commercial law, and private law more generally and as of August this year he will become the Herbert Smith Professor of Private Law at Oxford.
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Transformative Constitutionalism:Historical Justice and Indigenous Peoples
Speaker: Dr. Richard Dawson,
Time: 6.00-7.30pm. Tuesday, 13 March, 2012
Venue: Small Lecture Theatre, Law School, University of Auckland.
Abstract:
The principal aim of this seminar resembles that of Hannah Arendt’s The Human Condition: ‘to think what we are doing.’ Transformative constitutionalism is a name for an activity that all of us do all the time, often without awareness. This activity is the constitution of ourselves and others through language. The law is a powerful constitutive discourse, creating legal subjects with particular powers and disabilities. Sometimes the law does this well. At other times it performs badly. With reference to the treatment of indigenous peoples, especially to Maori Iwi and ‘native title’, this seminar attends to the process by which we, in and out of the law, judge various performances. ‘Justice’, as Arendt put it, ‘is a matter of judgment.’
Dr Dawson has provided some preparatory material which is available here: TC Historical Justice
Dr. Richard Dawson recently completed a law doctorate at the University of Canterbury. Before going to law school, he was a Lecturer in Economics at the University of Waikato. His book The Treaty of Waitangi and the Control of Language (2001) is a revised version of his economics doctoral thesis.
All are welcome to attend
2011 Essay Prize:
This meeting will also feature the presentation of the 2011 Essay Prize to Mr. Alexander Mackenzie for his entry,
Is Rawls’ difference principle a defensible principle of justice in light of the criticism it has faced?
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Dr Brian Flanagan, National University of Ireland, Maynooth will deliver a talk entitled:
Facing up to the Semantic Sting
Time: 1.00pm, Wednesday 2 November, 2011
Venue: Forum 3, Law School, University of Auckland.
Abstract:
Ronald Dworkin’s influential ‘semantic sting’ criticism of legal positivism has attracted very different responses from positivists. I argue that Dworkin’s criticism continues to offer a pressing challenge to versions of legal positivism that aspire to explain the central legal phenomenon of general agreement on the content of the law.
Dr Brian Flanagan is a lecturer in law at the National University of Ireland, Maynooth. His primary research interest is the concept of legal meaning and the role of analysis in legal philosophy. Recent publications include, ‘A Fullerian Challenge to Legal Intentionalism’ (2011) 24 Ratio Juris 330; ‘Judicial Decision-making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 ICLQ 1; ’Revisiting the Contribution of Literal Meaning to Legal Meaning’ (2010) 30 OJLS 255.
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Professor Tony Spalinger, University of Auckland will deliver a talk entitled:
Reality and Fiction: Law Codes or Case Books? Legal Manuals in the Ancient World.
Time: 6pm, Wednesday 21 September, 2011
Location: Seminar Rm 3, Law School, University of Auckland (note change of location)
Abstract: This paper discusses a series of demotic law codes from Egypt (ca, 250 BC – 200 AD) that are now recognised to be manuals rather than royal edicts. The later effects of Roman imperialism and the eradication of native particularism in jurisprudence can be set in contrast with the rather liberal attitudes of the earlier Macedonian rulers.
Professor Tony Spalinger specialises in the international relations of the Ancient Eastern Mediterranean and Western Asia. He is author of War in Ancient Egypt: The New Kingdom. (Blackwell: Oxford, 2004), Five Views on Egypt. (University of Göttingen: Göttingen, Studia Monographica 6, 2006), & The Great Dedicatory Inscription of Ramesses II: A Solar-Osirian Tractate at Abydos (Brill: Leiden and Boston, 2008).
More information about our speaker can be found at: http://artsfaculty.auckland.ac.nz/staff/?UPI=aspa002
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Professor Elizabeth McLeay, Victoria University of Wellington will deliver a talk entitled:
‘Towards the Referendum: The Virtues and Vices of MMP’
Dr. Stephen Winter, University of Auckland will provide a commentary.
Time: 3.30pm, Wednesday 24 August, 2011
Location: Decima Glenn Room, Business School, University of Auckland
Professor McLeay is invited as a guest of both the Society and Political Studies Department of the University of Auckland. She has published widely on New Zealand politics and political representation, including electoral system theory. Her recent work has been on ministerial dismissals, constitutional change, Her Majesty’s Loyal Opposition, and the use of parliamentary urgency (fast-tracking Bills).
Dr. Winter is a political theorist at Auckland.
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Society Event
Dr. Glen Pettigrove from the Philosophy Department, Auckland University, will deliver a paper entitled:
‘Shame: A Study of Collective Emotion’
Time: 4.00pm on Tuesday 26 July, 2011
Location: Forum 4, Building 803, Law School, Eden Crescent.
Abstract:
Philosophers typically respond to talk of ‘collective emotions’ with skepticism. The paper addresses this scepticism by 1) offering a credible account of collective emotions, and 2) demonstrating their importance for understanding certain kinds of political conflict. Taking Palestine as a case study, the paper looks at how collective shame has shaped the Israel/Palestine conflict and how the mechanisms that have emerged to overcome that shame have, at the same time, constructed obstacles to forgiveness and reconciliation.
Dr. Glen Pettigrove is a Senior Lecturer in Philosophy at the University of Auckland. His research focuses primarily on the role of the emotions in moral and political life. His recent work includes Forgiveness and Love (Oxford University Press, forthcoming), “Apologizing for Who I Am” with Jordan Collins, Journal of Applied Philosophy (2011); and “Palestinian Political Forgiveness” with Nigel Parsons, Social Theory and Practice (2010).
Branch AGM: Immediately after the paper, at 5.20pm, the branch will hold its Annual General Meeting. The Agenda will be posted on the website. Please advise Steve Winter <s.winter(at)auckland.ac.nz> if you wish any additional items to be placed on the Agenda or if you wish to submit your apologies.
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Speaker: Hanna Wilberg, Auckland Law Faculty will offer a paper entitled:
Rights, Statutory Interpretation, and Democracy
Time: 6.00pm, Wednesday May 11, 2011.
Venue: Law Staff Common Room, 4th Floor, Bldg 801, Law School, Eden Crescent. (Please note change of venue.)
Abstract: The statutory interpretation device of a presumption of consistency with rights has been used particularly assertively over the last decade or two. There has been much debate whether this trend is consistent with Parliamentary sovereignty or, more broadly, with democratic principles. The concern is that it risks disregarding the intention of Parliament. However, there is significant uncertainty as to the proper meaning of legislative intention. In particular, some take the view that such intention is a purely constructive or even fictional notion.
In this paper, I take as my starting point that democratic principles demand that statutory interpretation be guided by legislative intention, if that is possible. I then defend the notion of legislative intention as one that is real and explore how that version of legislative intent could be used to judge when uses of interpretive presumptions are consistent with legislative intention. I suggest that we can distinguish moderate and assertive uses of interpretive presumptions, depending on their degree of conflict with legislative intention. However, that a use is assertive does not automatically entail that it cannot be justified. Democratic principles may well permit limited exceptions to interpretation according to legislative intention. I suggest that assertive use can only be justified on the basis of such an exception and I endeavour to help identify cases that require that justification.
Hanna Wilberg is a Senior Lecturer in the Auckland University Law Faculty. She joined the Faculty in 2004. Her previous background includes working as a Judges’ Clerk at the Court of Appeal in Wellington and practice at the Crown Law Office. She is a graduate of Otago and Oxford Universities. Her primary areas of research and teaching are Administrative Law and the tort liability of public authorities.
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Speaker: Associate Professor Grant Duncan, of Public Policy and Politics at Massey University at Albany will deliver a paper entitled:
Should happiness-maximization be the goal of government?
Time: 6.00pm, Tuesday 29th March, 2011.
Venue: Small Lecture Theatre, Ground Floor, Bldg 803, Law School, Eden Crescent.
Abstract
Recent social surveys of happiness (subjective well-being) have given a new stimulus to utilitarian political theory by providing a statistically reliable measure of the ‘happiness’ of individuals that can then be correlated with other variables. One general finding is that greater happiness does not correlate strongly with increased wealth, beyond modest levels, and this has led to calls for governments to shift priorities away from economic growth and towards other social values. This paper notes how the conclusions of this research help to address some of the traditional objections to utilitarianism. But whether happiness research findings can be used to set happiness-maximization goals for public policy needs careful examination. The translation from research to policy is not always straightforward. Some empirical and ethical objections to this ‘new utilitarianism’ are raised. Additionally, questions regarding the proper role of government are considered.
A copy of the paper will be available from here in the near future.
Dr. Grant Duncan is an Associate Professor in the College of Humanities and Social Sciences, at Massey University, Albany. His interest in happiness is part of a wider project analyzing public institutions and subjectivity.
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This is a joint meeting with the Auckland Branch of the International Fiscal Association.
Professor John Tiley, of Cambridge University,will deliever a paper entitled:
‘What is the Point of Purpose?’
Time: 6pm, Monday 28 February 2011
Venue: The Stone Lecture Theatre, 3rd Floor, Bldg 801, Law School, Eden Cres.
‘What is the Point of Purpose?’
Professer John Tiley, CBE, QC (hon), FBA, LLD, is Emeritus Professor of Tax Law and Director of the Centre for Tax Law in the University of Cambridge. He is a Leverhulme Trust Emeritus Fellow and a member of the current government-appointed working group on whether the United Kingdom should adopt a statutory GAAR (general anti-avoidance rule). Currently, the United Kingdom does not have a GAAR.
Abstract: I will look at the changing legal methodology and rhetoric of the United Kingdom courts, especially the House of Lords, now the Supreme Court, when dealing with tax avoidance. From, at the latest, Barclays case (2004), the courts have left matters to be dealt with on the basis of purposive interpretation. What difference has this made? Since many of the cases have involved capital gains, I will ask how far this has mattered.
This is a paper within the Theoretical Problems Within the Law Series of the Auckland Branch of the NZSL&SP
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Speaker: Dr Stephen Winter, Lecturer in Political Theory, University of Auckland, will deliver a paper entitled:
Basic Income & Oil: Climate Change, Complicity & Compensation
Time: 6.00pm, Tuesday 23 November, 2010.
Venue: Small Lecture Theatre, Ground Floor, Bldg 803, Law School, Eden Crescent.
Abstract:
Some proponents of a basic income programme are touting the Alaskan Permanent Fund Dividend program as a model for funding. The PFD taxes Alaskan oil extraction, places the money in an invested fund, and distributes a dividend to each resident from the annual proceeds of the fund. The key reason proponents favour this model is the alleged ethical superiority of taxing natural resource appropriation when contrasted with taxes on income or wealth. This paper challenges that argument by showing how the Alaskan model makes recipients complicit in wrongdoing.
Here is the argument in brief:
1. An unjustified grave rights violation is intrinsically wrong.
2. The current oil industry necessarily participates in unjustified grave rights violations.
3. (From 1 & 2) The oil industry participates in intrinsic wrongs.
4. The Alaskan PFD makes recipients complicit with the oil industry.
5. (From 3 & 4) The PFD makes recipients complicit with intrinsic wrongs.
6. Complicity with something that is wrong is itself wrongful.
7. (From 5 & 6) Receipt of the PFD is itself wrongful.
The paper concludes by sketching a possible compensatory solution (for economists, a ‘Pigovian’ solution).
Dr. Stephen Winter is a Lecturer of Political Theory at the University of Auckland. His most recent academic publication “Against Posthumous Rights” was published in the 2010 Journal of Applied Philosophy. He received his doctorate from the University of Oxford in 2006. More information about the speaker can be found at: http://artsfaculty.auckland.ac.nz/staff/?UPI=swin040
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Auckland Branch of Society for Legal and Social Philosophy
in conjunction with The Auckland University Law Review (AULR)
Notice of Meeting
Time: 6.00 pm, Tuesday, 19th October.
Venue: Algie Lecture Theatre, 1st Floor, Bldg 801, Law School, Eden Crescent.
Speakers:
William Fotherby will deliver a paper entitled:
“Civil Justice and Self-Represented Litigants”
Zoe Brentnall will deliver a paper entitled:
“The Right to Life and Public Authority Liability”
· William Fotherby is a former joint editor in chief of the AULR. He is currently a solicitor at Meredith Connell. This is his fourth published law article.
· Zoe Brentnall graduated with a BA/LLB (Hons) from Auckland in 2010. She is currently working in commercial litigation at Gilbert Walker, and aims to pursue post-graduate study in law abroad.
ABSTRACTS
Civil Justice and Self-Represented Litigants:
In this seminar I will address why and how our court system should accommodate the demands of lay litigants. I start from the right afforded all citizens to represent oneself in court, and the Court’s role as the arbiter of dues in a civilized society. I will then look at the reasons behind self-representation and, given these, the problems with the current suggested solution to the problem, which is to increase the extent to which lawyers are available. I will suggest a better way to address these issues, based on (1) a more efficient delivery of legal services and (2) small modifications to the way our court system works.
The Right to Life and Public Authority Liability:
This paper considers whether the right not to be deprived of life in the New Zealand Bill of Rights Act presents a new source of public authority liability for harm caused by an individual who is within that authority’s custody or control. For example, should the Probation Service and the Department of Corrections be under a duty to take positive steps to protect the lives of those under their control? The paper considers whether such a liability is justified and, if so, what should be its scope. It also addresses whether such a liability would undermine the ACC scheme.
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Notice of a Joint Meeting of The Auckland Branch of the Society for Legal and Social Philosophy & The Auckland Branch of the International Fiscal Association
Speaker: Dr Michael Littlewood, University of Auckland will deliver a paper entitled:
‘Tax Avoidance and the Rule of Law’
Commentator: Rob McLeod, Ernst & Young Time: 6.00 pm, Wednesday 29 September, 2010.
Venue: Small Lecture Theatre, Bldg 803, Law School, Eden Crescent.
Abstract. This paper examines the five recent cases in which the New Zealand courts have been called upon to interpret the General Anti-Avoidance Rules (or GAARs) contained in the Income Tax Act and the GST Act. These cases lend weight to the theory that the idea of tax avoidance is not susceptible to coherent explication and that rules against it are therefore inescapably problematic – to the extent, even, that they constitute a departure from the rule of law. The cases also suggest, however, that having a GAAR is nonetheless better than not having one. It seems clear, too, that the Supreme Court has taken a tougher line against tax avoidance than did the Privy Council.
Dr. Michael Littlewood is a Senior Lecturer in the Law School, Auckland University, specializing in tax law. His interest in tax ranges widely from the detail of tax law to tax policy, the politics of taxation, tax history, and, as in this paper, constitutional aspects of taxation. He is the author of Taxation Without Representation: The History of Hong Kong’s Troublingly Successful Tax System, (HKU Press, 2010) and has published articles on tax in the US, the UK, Hong Kong, China, the Netherlands, Australia and New Zealand.
Rob McLeod is a tax lawyer with 25 years experience. He is the Managing Partner of Ernst & Young for the Oceania region (Australia, New Zealand and Fiji). He chaired the Government Tax Review (2001) and was a member of the Tax Working Group (2009).
This is a paper within the Theoretical Problems Within the Law Series of the Auckland Branch of the NZS&LP
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Auckland Branch of Society for Legal and Social Philosophy in conjunction with The Auckland University Law Review (AULR)
Speaker: Alice Krzanich will deliver a paper entitled:
“Murder, Mazengarb and a Moral Panic: The Intersection of Juvenile Delinquency and the Media in 1950s New Zealand”
Time: 1.00 pm, Wednesday 15 September 2010
Venue: Forum 4, Rm 2.11, Bldg 803, Law School, Eden Crescent
Commentator: Associate-Professor Rosemary Tobin
Alice Krzanich is a fifth year BA/LLB(Hons) student at the University of Auckland. From 2011 she will be a judges’ clerk at the Court of Appeal.
ABSTRACT
In 1954 New Zealand experienced a moral panic. Misbehaviour among the nation’s youth brought the issue of ‘juvenile delinquency’ to the forefront and concerned adults, searching for an answer, fixated upon comic books as a cause of this depravity. This seminar explores the role of the media in shaping such a panic and examines the 1954 Special Committee onMoral Delinquency in Children and Adolescents, which resulted in censorship legislation aimed to curb young people’s exposure to ‘indecent literature’. Throughout, the inextricable link between law and society will be emphasised, as will concerns (both modern and historical) surrounding youth and popular culture.
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Speaker: Professor Jeff Berryman, University of Auckland will deliver a paper entitled:
‘The Law of Remedies: A Prospectus for Teaching and Scholarship’
Time 6.00 pm, Tuesday 31 August, 2010.
Venue: Small Lecture Theatre, Bldg 803, Law School, Eden Crescent.
Chair Professor Peter Watts, University of Auckland
Abstract.
The study of the law of remedies has found a place in the curriculum of many law schools in common law jurisdictions. This has generated debate on whether the law of remedies exists as a distinct body of law governed by its own systematic structures and principles that can comfortably take its place beside other substantive private law subjects. The author argues that it can, and then suggests a number of important areas of law in which debate on the appropriate remedial response is central to the articulation of the particular interest which has been violated. The author suggests that there is much useful work to engage the energies of scholars of the law of remedies.
Professor Berryman holds a Senior Research Leadership Chair in the Law Faculty at the University of Windsor, Canada and a part-time appointment as Professor of Law in the Law Faculty at Auckland University. A specialist in remedies, he also teaches contract law and restitution. He is the author of The Law of Equitable Remedies (Essentials of Canadian Law series) (Irwin Publishing) and the co-ordinating editor of Berryman et al, Remedies: Cases and Materials (Edmond Montgomery Publishers) now in its 5th ed. He is a member of the Law Society of Upper Canada and a barrister and solicitor of the High Court of New Zealand.
This is a paper within the Theoretical Problems Within the Law Series of the Auckland Branch of the NZSL&SP
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Speaker: Dr Karen Lee from Shue Yan University, Hong Kong, will deliver a paper entitled:
‘Equality, Dignity, and the Disagreement on Same-Sex Marriage ’
Commentator: David Merry, Department of Philosophy, University of Auckland
Time: 6.00 pm, Thursday 1 July, 2010.
Venue: Small Lecture Theatre, Bldg 803, Law School, Eden Crescent.
Abstract.
Equality and dignity are two fundamental grounds of the case for legalizing same-sex marriage. Yet, their meanings remain indeterminate. Despite being essential ingredients in human rights jurisprudence, the ideas of equality and dignity by nature evoke different interpretations among people who have different views about how people should live and how society should function. Hence, one should acknowledge the limits of these two concepts in discourse about rights. To truly live up to the spirit of equality and equal dignity the disagreeing parties must explore common ground. They have to acknowledge that their disagreement is about the best interpretation of fundamental values that everyone shares, and not confrontation between conflicting and mutually incomprehensible world-views.
Dr. Karen Lee graduated from Auckland University in 1999 with a conjoint LLB and BA (majoring in Political Studies). She obtained her PhD in law at the University of Hong Kong in 2009, and now teaches law at Hong Kong Shue Yan University. She has recently published Equality, Dignity, and Same-Sex Marriage: A Rights Disagreement in Democratic Societies, with Martinus Nijhoff Publishers.
David Merry is a graduate student and tutor in the department of philosophy at the University of Auckland. His research interests are in moral psychology, ethics and the philosophy of art.
Please note that the Society’s AGM (beginning at 5.20pm) immediately precedes the discussion in Forum 4 (adjacent)
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John Gardner, Professor of Jurisprudence at Oxford University, will deliver a paper entitled:
‘The Supposed Formality of the Rule of Law’
Time: 6.00 pm, Thursday 25 March, 2010.
Venue: Stone Lecture Theatre – Level 3, Bldg 801, Law School, Eden Crescent
Abstract: In this paper, still in early stages, I consider the suggestion that the rule of law is a ‘formal’ ideal or, alternatively, that ‘conceptions’ of it can be classified as relatively ‘formal’ or relatively ‘substantive’. I raise some doubts about the relevant idea of formality, and about the contrast between ‘formal’ and ‘substantive’. Both ‘formal’ and ‘substantive’, I will suggest, are terms only to be understood contrastively, and are not well understood when they are only contrasted with each other. Form makes best sense when contrasted with content, and substance when contrasted with procedure. The rule of law can be thought of as formal to the extent that it does not regulate the content of the law but instead its form. But on every version of the ideal known to me it mainly regulates the content of law and only to a much lesser extent its form. The rule of law can be thought of as non-substantive, meanwhile, to the extent that it regulates legal procedure as opposed to the matters of substance to which the procedures apply. But on every version of the ideal known to me it mainly regulates the substance of law and only to a lesser extent the procedures. All this leads me to think that the contrast that people have in mind when they discuss the formality (versus the substantiveness) of the rule of law must be something different from either of these. What is it? I canvass some possibilities and try to explain why they might be so hotly debated.
Speaker: John Gardner is Professor of Jurisprudence at Oxford University and a Fellow of University College. He is an occasional Visiting Professor at Yale and a Bencher of the Inner Temple. He has written widely in moral and legal philosophy, with a particular focus on criminal law theory.
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Dr. Niall Ó Dochartaigh, of the National University of Ireland, Galway will deliver a paper entitled:
‘Truth, history and public inquiry’
Time: 6.00 pm
Date: 4 March, 2010
Location: Small Lecture Theatre, Building 803, Law School, Eden Crescent
Speaker:
Dr. Niall Ó Dochartaigh is lecturer in the School of Political Science and Sociology at the National University of Ireland, Galway. He is the author of ‘From Civil Rights to Armalites: Derry and the birth of the Irish Troubles’ (Cork UP 1997; 2nd edn Palgrave 2005) and two books on Internet research (Sage 2002; 2007). He is co-director of the Centre for the Study of Nationalism and Organised Violence at NUI Galway.
Abstract:
Public inquiries operate at the intersection between the legal and the historical, mandated to establish the truth of events of public importance rather than to weigh up the arguments of opposing parties to a dispute. But some historians have questioned whether a legal inquiry is the appropriate mechanism for establishing the truth of an historical event. This paper argues that a relatively narrow legal focus on formal responsibility and formal power structures can hinder our understanding of past events.
The paper argues that a legal approach to the explanation of historical events is extremely problematic and can obscure the political context that is essential to any understanding of controversial events. It examines the limitations of public inquiry through a case study of the Bloody Sunday Inquiry established by the British Government in 1998 to investigate the killing of 13 civilians by British soldiers at a civil rights march in Northern Ireland in 1972. The Inquiry has been extremely receptive to the explanation of action in terms of a narrow technical rationality that emphasizes lack of choice and presents key decisions as responsive. In so doing it runs the danger of providing a form of historical explanation that strips out politics and power and that focuses narrowly on formal decision-making processes. This case raises broader questions about the tension between the legal and the historical in ‘truth-telling’ processes aimed at contributing to the settlement of violent conflict.
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A joint seminar from the Auckland Branch of Society for Legal and Social Philosophy & The Research Centre for Business Law
Speaker: Dr Richard Ekins will deliver a paper entitled:
‘Half-baked Institutional Reform: The Report of the Regulatory Responsibility Taskforce’
Click Here for a Copy of the Paper
Time: 6.00 pm, Wednesday 16 Dec, 2009.
Venue: Stone Lecture Theatre, 3rd Floor, Bldg 801, Law School, Eden Crescent.
Richard Ekins is a graduate in law and politics from Auckland University and a graduate of Oxford, where he recently completed a DPhil on the nature of legislative intent. He has published widely on topics relating to legislation. During his period at Oxford he was a joint winner of the Herbert Hart prize for Jurisprudence. He is a member of the Auckland Law Faculty.
Commentator: Chye-Ching Huang is a graduate in law and commerce from Auckland University and holds an LLM from Columbia University. She has written on the original draft Regulatory Responsibility Bill. She lectures in the Commercial Law Department of the University of Auckland Business School.
Abstract: ‘The Report of the Regulatory Responsibility Taskforce was presented to Ministers on 30 September 2009. The report recommends a draft Regulatory Responsibility Bill, which, if enacted, would be of immense constitutional significance. The purpose of the bill is to improve regulation (including legislation) by specifying principles of responsible regulation and by introducing mechanisms to ensure that primary and secondary legislation conforms to those principles. The mechanisms are: requiring officials and legislators to certify whether legislation conforms, enabling the courts to declare legislation incompatible with the principles, and directing courts to interpret legislation consistently with them. This paper outlines and critiques the report and the bill. I argue that the draft bill should not be enacted. The bill does not promise to improve the legislative process and the report neglects alternative possibilities for reform. Further, it would be most unwise to authorise interpretation or declarations of incompatibility by reference to the bill’s principles. Indeed, the bill fails to satisfy the indicia of good lawmaking that it otherwise enjoins.’
Time will be available for audience discussion after the speakers’ presentations.
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Dr Kevin Walton, from the Law Faculty at the University of Sydney, will deliver a paper entitled:
‘Legitimacy and Particularity: John Simmons on Political Obligation’.
Time: 6.00 pm, Wednesday, 14 October, 2009.
Venue: Small Lecture Theatre, Bldg 803, Law School, Eden Crescent.
Dr Kevin Walton, holds an LLB(Hons) from Edinburgh University, an MA in legal and political theory from London University and a PhD from Edinburgh. He is currently a lecturer in the Law Faculty of the University of Sydney, which he joined in 2003. He lectures in Criminal Law, Theories of Justice, and Theories of Legal Reasoning. He is also the director of the Julius Stone Institute of Jurisprudence. His current research focuses on views of, and responses, to legal obligation.
Abstract:
In this paper, I examine the account of ‘political obligation’ on which John Simmons’s ‘philosophical anarchism’ – that is, his rejection of all moral arguments for obedience to the law regardless of its content – depends. I express agreement with much, but not all, of his conception. Most notably, I challenge his insistence on the need for any such obligation to be ‘particular’ to a single state, which he regards as the ‘[f]oremost’ and ‘probably the most original’ of his ‘various framing assumptions’.
[John Simmons, whose concept of political obligation is the subject of the paper, is a professor of philosophy and law at the University of Virginia, the editor of Philosophy and Public Affairs, and a distinguished American political philosopher.]
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Ron Paterson the Health and Disability Commissioner, will deliver a paper entitled: ‘Regulating for Compassion?’.
Time: 5.30pm Tuesday, 15 September, 2009.
Venue: Algie Lecture Theatre, 1st floor, Building 801, Law School, Eden Crescent,
Ron Paterson is a graduate in law of Auckland and Oxford. He was a member of the Auckland Law Faculty from 1986 to 1999. In 1998, he held a Harkness Fellowship in health policy at Georgetown University in Washington. In 1999 he was appointed Deputy Director-General of Health for New Zealand and since 2000 he has been Health and Disability Commissioner.
Abstract: Should a right to be treated with compassion be added to New Zealand’s Code of Health and Disability Services Consumers’ Rights? Specifically, should the law provide that “every consumer has the right to have services provided with compassion, including a prompt and humane response to suffering”?
This paper discusses the implications of the recent campaign by the Centre for Compassion in Healthcare to have a right to treatment with compassion added to the Code. The context of the debate is the recent review of the Health and Disability Commissioner Act 1994 and the 1996 Code, which the Commissioner is required to undertake every five years.
The absence of compassion in health care is increasingly remarked upon. “The lost art of caring” was the cover story of a recent issue of the New Zealand Listener (April 11–17, 2009), and the virtue of compassion — “feeling with” a patient — has an ancient lineage in medicine. The 12th century philosopher physician Maimonides prayed, “May I never forget that the patient is a fellow creature in pain. May I never consider him merely a vessel of disease.” Contemporary medical writers, like Boston physician Bernard Lown, have emphasized the need to “practice compassion in medicine”.
But is it right to invoke the force of the law to promote the virtue of compassion in health care? Should we legislate for compassion? In this paper I discuss this issue.
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Professor Andrew Simester will deliver a paper entitled:
‘Thoughts on Morality and Paternalism’.
Time: 6.00 pm, Wednesday 29 July 2009.
Venue: Small Lecture Theatre, Bldg 803, Law School, Eden Crescent.
Andrew Simester is a graduate of Auckland and Oxford. He taught at the Universities of Cambridge, Birmingham, and Nottingham, before joining the National University of Singapore in 2006. In 2007, in recognition of his research in criminal law and legal theory, he was elected to a Fellowship at Wolfson College, University of Cambridge, where he is also Senior Research Fellow at the Institute of Criminology. New Zealand lawyers will know him as co-author of Simester and Brookbanks, Principles of Criminal Law.
Abstract: A central challenge for criminal law theorists is to give an account of when we should use the criminal law to regulate conduct. Controversially, Lord Devlin once suggested that “it is not possible to set theoretical limits to the [legitimate] power of the State to legislate against immorality”. In this paper, I revisit this issue. I argue that moral reasoning is certainly indispensable to the case for criminalisation, even within the terms of the so-called Harm Principle. Moreover, I suggest that the range of morally legitimate criminal proscriptions includes at least some cases of paternalism, direct and indirect.
A first draft of the paper is available to anyone wanting to read it ahead of the meeting. Please contact Jim Evans on pj.evans(at)auckland.ac.nz.As it is a first draft, Professor Simester asks that it be used for private study only.
Dr Tim Dare will deliver a paper entitled: ‘Professional Obligation and Personal Integrity’
Time: 6.00 pm, Wednesday 27 May 2009.
Venue: Stone Lecture Theatre, Law School, Eden Crescent.
Commentator: Professor Duncan Webb, Canterbury University.
Tim Dare is a Senior Lecturer in the Philosophy Department at Auckland University and currently Head of Department. He has postgraduate qualifications in law and philosophy. He has taught Legal Ethics in the Law Faculty for many years. His book The Counsel of Rogues: a Defence of the Standard Conception of the Lawyer’s Role is due to be released in late May.
Duncan Webb is a Professor of Law at Canterbury University and currently Legal Complaints Review Officer.
Abstract:
I have defended an account of legal ethics which draws a sharp distinction between professional and ordinary obligation. On this account lawyers are at least occasionally required or allowed to do things as lawyers which it would be wrong to do outside of that role.
One criticism of this type of account claims that it threatens the personal integrity of lawyers, requiring them to surrender their autonomy, to divide themselves between their private and professional lives, to lend themselves to causes and clients they would not, as individuals, choose to support.
In this paper I examine some recent accounts of personal integrity arguing that what is central to them is not the features they emphasise – autonomy, integration, or the preservation of clean-hands – but a commitment to critical reflection and a readiness to embrace its implications.
Understanding integrity in terms of a commitment to critical reflection allows us to reconcile integrity and authority. More specifically, it allows us to see how lawyers might be subject to strongly differentiated role obligations without sacrificing their integrity, for such reflection should lead them to acknowledge the authority of the obligations of their professional roles.
Dr Elizabeth Gedge will deliver a paper entitled:
“Dignity and Equality in Constitutional Jurisprudence”
Time: 6.00 pm, Tuesday 10 March 2009.
Venue: ClockTower Lecture Theatre, Room 105-029 in “The Clock Tower” building of the University of Auckland
Dr. Elisabeth Gedge is an Associate Professor of Philosophy at McMaster University in Canada. Her primary areas of research interest are feminist bioethics and the philosophy of law. She is currently exploring the concept of expressive or symbolic harm.
Abstract:
A recent clip from The Associated Press declares: “Sarkosy voodoo dolls OK, but shouldn’t be pricked.” It seems that while producing and marketing a “Sarkosy doll” has been declared legal, a label must be attached saying that sticking pins into such a doll would “harm the President’s dignity.” This is one example of the way in which “dignity” features in public discourse. A more common discourse in which the concept currently appears is that of death with dignity, where the appeal to dignity shores up arguments for liberalising our attitudes towards physician-assisted suicide. In neither context is it clear what dignity means nor how dignity may be violated.
Section 15 of the Canadian Charter of Rights and Freedoms guarantees that legal subjects will enjoy equality and freedom from discriminatory treatment under the law, and in Law v Canada (1999) Justice Iaccabucci declared: “the overriding concern with protecting and promoting human dignity infuses all elements of the discrimination analysis.” Yet the appeal to dignity promises to be as problematic in constitutional interpretation as it is in bioethics or popular discourse. Feminist commentators fear that the vagueness of the concept may place an additional burden on vulnerable legal subjects attempting to establish discrimination. Favourable commentators reduce dignity violation to unjust restrictions of welfare and/or autonomy, but this overlooks an important deontological and expressive element in dignity violation. In this paper I review recent jurisprudence on the appeal to dignity and then attempt to articulate and defend an account of dignity that addresses the problems identified above.
Speaker: Professor William Lucy will deliver a paper entitled:
Abstraction and the Rule of Law
abstraction-and-the-rule-of-law5
Time: 6.00 pm, Tuesday 3 March 2009.
Venue: Stone Lecture Theatre, Building 803, Law School, Eden Crescent. (Note Room Change)
William Lucy is a Professor of Law at the University of Manchester. Recently, he has been a visiting professor at McGill University and the ANU. He is the author of Understanding and Explaining Adjudication (Oxford: Clarendon Press 1999) and Philosophy of Private Law (Oxford: Clarendon Press 2006). He was a keynote speaker at the 2006 ASLP conference in Auckland. His current research focuses on the ‘formal’ legal virtues, including the rule of law and its components like impartiality, equality and certainty (or predictability) and an analysis of accounts of adjudication and the idea of judgement.
Abstract:
This paper tackles two issues: (1) the nature of law’s judgement of particular cases, and (2) what, if anything, might be said in favour of such judgments. As to the first, the essay reminds lawyers of the obvious: namely, that the law judges us (i) not in all our particularity but as identical abstract beings; and (ii) by reference to general and objective standards equally applicable to all such beings. It also explains why such judgments might be considered problematic. As to the second, this paper considers only one family of arguments in favour of law’s abstract judgment: namely arguments from the ideal of the rule of law. This narrowing provides a useful focus. Three different arguments from the rule of law are examined, the conclusion being that two of the three cannot provide unproblematic and unambiguous support for law’s abstract judgement.
Professor Peter Watts of the University of Auckland’s Law School will give a paper entitled:
The Tort of Refusing to Contract?
Time: 6pm, Wednesday, 3 December 2008
Location: Small Lecture Theatre, Law School, Eden Crescent
Abstract: The paper responds to a series of cases starting with Nagle v Feilden in England in 1966, through Stininato v Auckland Boxing Association in 1978, to, most recently, Stratford Racing Club Inc v Adlam, in which courts have indicated a willingness to require persons, at least incorporated ones, to contract with parties that they do not want to contract with. One New Zealand judge has even gone so far as to say that all traders have a prima facie duty to contract with all-comers unless there is good reason not to. Four principal questions arise. (1) Is this development consistent with the pre-1966 law? Non sequiturs abound in the judgments. (2) If the answer to (1) is “No”, is it appropriate for judges to embark in this direction, shedding inconsistent older law? (3) If the answer to (2) is “Yes”, what principles might be developed to shape the jurisdiction? (4) Are there fundamental concerns about forcing people to engage with other people that even a Legislature should observe? The paper does not attempt to answer these questions definitively, but sounds an alarm that this series of cases is highly problematic.
The paper is also available in (2008) 14 NZ Business Law Quarterly, 69,
Associate Professor Martin Wilkinson, Auckland School of Medicine and Chair of New Zealand’s Bioethics Council will deliver a paper entitled:
“Consent and Non-Therapeutic Uses of the Bodies of the Incompetent and the Dead”
Venue: Small Lecture Theatre, Bldg 803 Law School, University of Auckland
Time: 6.00pm October 30, 2008
Abstract
Many think that unconscious and dead people have rights over their bodies. This paper is about what these rights require in the context of what I shall call `non-therapeutic uses’ in the field of biomedicine.
When would using the unconscious or dead in research infringe on their rights? When would taking organs or gametes from the dead infringe on their rights? In general, what non-therapeutic uses of people’s bodies are ruled out by their rights when they are unable to exercise control of their rights? Is some use permissible when people have consented to the use, actually wanted the use, would have wanted the use, not entirely opposed the use, or what? The aim of this paper is to make progress in answering these questions. The important claims of the paper are: that consent is not directly required by a person’s rights – that a person wanted a use is enough; that while consent may be required by various considerations that arise once the certainty assumption is dropped, rules for consent need to be designed with an eye to the costs they may have for the rightholders; and that it is not in and of itself worse to use a person’s body against that person’s wishes than to fail to use when that is what the person wanted.
Jerry Paradis, Judge, Provincial Court of British Columbia (retired) will deliver a paper entitled:
“Drugs and the Law”
Time: 4.30pm, September 12, 2008.
Venue: AUT city campus, Room WA220 (A lecture theatre in the WA building).
The presentation elaborates on the origins, failures and many unintended, but entirely predictable, negative consequences of prohibition as a social policy to deal with the inevitable personal and social ill-effects of drug abuse. While of particular relevance to lawyers, public health professionals and others who work in the drugs field, this lecture will be of interest to many people who variously engage in, think about and are affected by drug use and drug policy. This event is the Pro Vice-Chancellor’s Winter Lecture and is produced in association with the Gambling and Addictions Research Centre, the National Institute for Public Health and Mental Health Research, AUT University, and the New Zealand Society for Legal and Social Philosophy. Following the lecture there will be time for questions and discussion, refreshments and socialising. For catering purposes, attendees are asked to RSVP to <a title=”mailto:sheree.green-molloy@aut.ac.nz”
Professor Martin Krygier, University of New South Wales will deliver a paper entitled:
“Ideals in the World: the Development and
Character of Phillip Selznick’s ‘Humanist Science’”.
Date: 6.00 on Thursday, 14 August 2008
Venue: Algie Lecture Theatre in the Law School, Eden Crescent
Bio: Martin Krygier is Professor of Law, and co-director of the Centre for Interdisciplinary Studies of Law at the University of New South Wales, and a Fellow of the Australian Academy of Social Sciences. His writings are generally concerned to explore the moral characters and consequences of large institutions, among them law, state and bureaucracy. A particular focus of his research is institutional and social development in post-communist Europe. His undergraduate degrees were in politics, philosophy and law, and his doctorate is in the history of ideas
Abstract: There are many ways to write about thinkers and their thoughts. Common in the social sciences is piecemeal citation, where it doesn’t much matter whose the idea was, or how it relates to its author’s other ideas; the only questions are what it is, how it fits with current work in a particular field or sub-field, and what we think of it.
We treat some writings differently, holistically one might say in California. Particular works and ideas are read in the light of an oeuvre, instances of a larger whole worthy of exploration. ‘Classical’ authors are often treated this way, modish ones too. Plato, Foucault. Not every thought or everyone’s thought rewards such treatment. Some writings are better left unread (indeed unwritten), and some need only be read piecemeal. Some, however, repay, even demand, holistic reading. Of course, the work must be able to bear the attention.
Philip Selznick’s work, still in progress, deals with many subjects and spans several disciplinary and sub-disciplinary domains. Central among them are social theory, the sociology of organizations and institutions, industrial relations, sociology of law; but also legal, moral and political philosophy. He has produced a substantial and important body of writings which bring to all these various fields a distinctive combination of explanatory theory, empirical research, philosophical awareness, and normative engagement. He has been a major figure in each of the fields he has touched, and one of very few to have been a participant, let alone influential, in them all.
But while his name is well-known, his work is more respected than emulated and today more known about, I suspect, than known; cited than read. And if read, it is in that truncated snapshot mode which diminishes its significance, and mistakes it. That seems to me a pity, and perhaps, to paraphrase Talleyrand, worse than a pity; a mistake.
I believe Selznick’s thought requires and repays holistic treatment, though it has almost never received it. Beyond his many particular insights into the nature and quality of institutional, legal, and social life and development, there is his cast of mind; ways of thinking, animating concerns and values, and a distinctive (and fine) sensibility, that fuse humanist and scientific concerns without either embarrassment or false showmanship. Over sixty years of his writings will be invoked, in under sixty minutes, to vindicate the claim. I will speak fast.
Annual General Meeting 2008
Time: 5.30 PM, Thursday 7 August, 2008.
Venue: Forum 2 (Room 211), 2nd floor, Building 801, Law School.
Agenda
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- Apologies
- Chairperson’s Report
- Financial Report
- Subscription for 08-09
- Appointment of Committee
- Activities of the Branch: Including Meeting Times, Use of Web-site, and Other Activities
- Other Business
Auckland Branch
Justice John Fogarty, of the High Court in Christchurch, will give a paper entitled:
“Giving Effect to the Values Used in Statutes”
PDF: Giving Effect to Value in Statutes
This paper is to be published in Law, Liberty, Legislation: Essays in Honour of John Burrows QC, and is reproduced with the permission of LexisNexis. Anyone quoting or referring to it should indicate that it will be published in that book.
Time: 6.00 PM, Wednesday, 2 July, 2008.
Venue: Small Lecture Theatre, Building 803, Law School, Eden Crescent.
John Fogarty graduated from Canterbury (LLB(Hons) and Toronto (LLM), where he specialised in Public Law. He practised in a legal firm from 1973 until going to the bar in 1985, becoming a Queens Counsel in 1990 and going to the High Court bench in 2003. Since his time as a pupil of Professor John Burrows QC, he has had a continuing interest in the use of that open-textured language in law that is used to impose standards and principles in contradistinction to rules.
Abstract: The paper presents, and invites discussion of, a perspective on how standards in statutes should be identified, understood and applied. The central argument is that in the cases which come before judges that involve applying standards the facts pose issues of degree, which enables two judges to make different decisions on the same set of facts. Because standards offer the opportunity for a judge to bring his own intuitions of desirable policy to bear, it seems worthwhile to work out a mode of analysis that would go some way to inhibiting that opportunity and, in that way, promote consistent decisions. The paper argues that the judge has to have regard to the moral context of statute law, not her or his own moral viewpoint: rather the relevant moral values and judgments are those adopted by Parliament. Statutes are enacted into a common law system and, moral values adopted by the Common Law may also be relevant. It is particularly important not to employ values or norms hostile to the purpose of the statute. Using hostile and otherwise irrelevant values should be regarded as an error of law. It is a matter of daily experience in the Courts that values often drive the decision, when the facts allow the decision to go either way. Regrettably, the values that have influence are not always those adopted by Parliament or relevant values from the Common Law. Consistency is a desirable attribute of Justice. In the context under discussion it will be promoted by careful attention to which values are relevant.
Guy Charlton, Auckland University, will deliver a paper entitled:
“Essentialism in North American Treaty Jurisprudence”
Time: 4.30 PM, Tuesday, 20 May, 2008. (Please note change of time.)
Venue: Forum 3 (Room 312), 2nd floor, Bldg 803 Law School.
Guy Charlton is currently a PhD candidate in Comparative Law at the University of Auckland and a part-time lecturer in Jurisprudence. He has an M.A.in Politics from the University of Toronto and a J.D. from the University of Wisconsin-Madison. He has practiced Indian law in the United States for 6 years.
Abstract: “Canadian and American aboriginal and treaty jurisprudence is informed by certain traditionalist assumptions about the nature of indigenous societies. These assumptions can preclude the judicial vindication of treaty rights particularly where the claimed rights would enable access to resources allowing aboriginals to compete directly with non-aboriginals. This paper examines the recent Supreme Court of Canada decision R. v. Marshall (2005) and compares it to an earlier American decision Lac Courte Oreilles Band of Lake Superior Chippewa Indians et al v. Voigt et al. (1991) regarding a claimed treaty right to commercially log in Nova Scotia and Wisconsin. In both these instances, the court held that tribal treaty negotiators were uninterested in reserving any treaty rights other than those denominated “traditional” by the court. This approach undermines judicial methods that are more protective of tribal interests.
Simon Hope, from the Philosophy Department, Auckland University, will deliver a paper entitled:
“Common Law Rights and Maori Political Claims”
Professor Jock Brookfield will respond
Time: 6.00 PM, Wednesday, 12 March, 2008.
Venue: Small Lecture Theatre, 1st Floor Bldg 803, Law School.
Simon Hope is an Auckland Graduate (Philosophy and Politics) who has recently completed his PhD at Cambridge under the supervision of Onora O’Neill. Simon is teaching a graduate course in political philosophy in first semester 2008.
Abstract: “Common Law Rights and Maori Political Claims” One sympathetic response to Maori demands for tino rangatiratanga holds that what is justifiable in such demands is justifiable by appeal to aboriginal rights under British common law. Focussing in particular on the work of Jock Brookfield, I outline one objection that could plausibly be made to attempts at grounding claims of tino rangatiratanga in appeals to common law rights: that such a grounding ignores an important aspect of influential Maori claims about the location of rangatiratanga. I then ask whether, in accepting this objection, we give too much weight to the sort of “identity politics” Brookfield opposes. I conclude that accepting my objection should not commit us to an implausible “identity politics”.
Dr Nicholas Smith will deliver a paper entitled:
Discrimination and Culture
Time: 6.00 PM, Wednesday, 17 October 2007.
Venue: Small Lecture Theatre, 1st Floor Bldg 803, Law School.
Nicholas Smith is a Senior Lecturer at Massey University. He has recently completed a doctorate at Auckland University on “Basic Equality and its Applications” which discusses equality as a moral, political and legal concept. His background is in law and philosophy, his particular interest being issues in human rights theory.
Abstract: In this paper I first briefly note some of the conceptual difficulties we encounter with the notions of “discrimination” and “culture” and explain how I will use these terms. I then address the question of what it means to discriminate on the grounds of culture. Discrimination on the grounds of culture or ethnicity sometimes takes the form of treating people unfairly simply because they are members of a particular group. In this respect it is like racist or sexist discrimination. Another form of discrimination against a culture is unfair criticism and/or regulation of cultural practices. I argue against the cultural relativism that would suggest criticism of the practices of other cultures is unjustifiable. However, some of the ways in which our society is regulated will impinge more on the culture of some groups than on others. The question of exemptions from general rules arises because of the extra burden this places on some. I discuss a recent version of the extra burden argument and conclude that this version of the argument does not succeed in explaining why exemptions to general laws or rules should only be afforded to cultural groups.
Dr Stephen Winter from the Political Science Department, will deliver a paper entitled:
The Stakes of Inclusion
Time: 6.00 PM, Wednesday, 19 September 2007
Venue: Small Lecture Theatre, 1st Floor, Bldg 803, Law School.
Dr Stephen Winter is a political theorist with the University of Auckland, recently arrived from Oxford. His particular area of research interest is redress for past wrongs, on which he is the author of several published articles.
Abstract: Many states and international organizations confront claims arising from histories of injustice. Generally, historical redress claims are pluralistic, bundled, and oriented around a central focal point (e.g. slavery, sexual exploitation, child removal). When actors respond positively to such demands, their response ‘validates’ certain categories of claims while excluding others. Further, one actor’s ‘validation’ can have international repercussions, both in the form of persuasive precedent and on the larger discursive field of conceptual determinacy.
In the late 19th and early 20th century, like New Zealand, Canada imposed a discriminatory head tax on Chinese migrants. Unlike New Zealand, in 2006 Canada developed a material redress program designed to resolve this historical injustice. Analysing the dynamics of inclusion and exclusion, this paper explores head tax redress in the Canadian context; examining how it, in comparison with other domestic and international programs, conceptualizes a valid redress claim.
Seminar Topic:
“Should judges be authorised to strike down statutes that they believe infringe fundamental human rights?”
Speakers: Richard Ekins & Aaron Lloyd
Time: 6.00 PM, Wednesday, 15 August, 2007.
Venue: Small Lecture Theatre, 1st Floor Bldg 803, Law School, Eden Cres.
Richard Ekins is currently completing a DPhil at Oxford and is a part-time member of the Faculty of Law at Auckland University; Aaron Lloyd is a practitioner at Minter Ellison, and a former part-time lecturer in the Law Faculty. Both have an extensive interest in constitutional and political theory.
Abstract: If, or perhaps when, New Zealand reviews its current constitutional arrangements, one important question will be whether it should adopt a Bill of Rights that allows judges to strike down statutes that they believe infringe the rights contained in it. This seminar is intended to assess the merits of such a system. The speakers will present their views on the topic, which will then be open for discussion from the floor.
Background Reading:
One important issue to the debate (although not the only one) is whether substantive judicial review of the American form is undemocratic. A very useful source on this question is Ronald Dworkin Freedom’s Law (1996) pages 15-35. We have permission to distribute copies of this for private study to those wanting to attend the seminar. Electronic copies will be available from Nicholas Smith N.M.Smith@massey.ac.nz from next Tuesday, 31 July, 07. Please send an e-mail request to him on or after that date. It will not be assumed that those attending have read this material.
Jonathan McKeown-Green, from the Philosophy Department, Auckland University, will deliver a paper entitled:
Intellectual Progeny: A Patent Cure?
Time: 6.00 PM, Wednesday, 25 July 2007.
Venue: Small Lecture Theatre, 1st Floor Bldg 803, Law School.
Jonathon McKeown-Green is a Senior Lecturer in the Philosophy Department, who specialises in logic, the philosophy of science and the philosophy of rationality. He also writes about intellectual property and moral responsibility.
Abstract: The standard moral rhetoric supporting intellectual property rights says that if I compose something, it’s mine. Burning CDs is theft, or perhaps piracy. This rhetoric derives from a property view of the moral ground of such rights. It treats art-works, scientific discoveries, inventions and original ideas as though they belong, at least initially, to those who come up with them. I question the wisdom of accepting this doctrine and outline my preferred alternative.
There are competing ways to organise and finesse our intuitive feelings about our duties to creators, inventors and discoverers. Regarding ideas and creations as somebody’s property is one way, but there are others. The view we have will influence the decisions we make about how copyright, patent, trademark and trade secrets laws develop. I argue that any law or social policy motivated by the property doctrine is likely to impose an arbitrary boundary between the activities it covers (writing songs, playing recorded music in a public place, and so on) and those it does not (writing a big band arrangement, whistling a popular melody, and so on). Furthermore, insofar as creative works, creative acts, original ideas and sensitive information are regarded as property, market forces too often mean that somebody other than the originator is the principal beneficiary of the property rights. I consider alternative conceptions. The one I favour treats original works, ideas and information as more like the children than the chattels of their originators: those who create and develop bear a more parental than proprietary relationship to their output.
Professor Rosalind Hursthouse, from the Philosophy Department at Auckland University, will deliver a paper entitled:
Two Ways of Doing the Right Thing: Virtue Ethics on Legal Ethics
Time: 6.00pm Tuesday 22 May, 2007
Venue: Women’s Federation Room, Old Government House
Professor Rosalind Hursthouse is a New Zealander, who had a distinguished academic career in the UK, before returning to take up a chair in philosophy at Auckland University about 5 years ago.
Abstract: “There is a long standing debate in legal ethics about the correct response to the obvious fact that lawyers’ professional role often permits – indeed requires – them to do things that would be wrong were they acting outside their professional role. One side defends ‘the standard conception’ of the role, according to which the lawyers’ role-obligations are determined by a professional code; it maintains that the correct response to the obvious fact is that it is necessitated by the social need for lawyers, and they should be honoured for taking on the role rather than vilified for fulfilling their role-obligations. According to the opposed position, ‘the standard conception’ is inadequate; lawyers’ role-obligations cannot be formally distinguished from their moral obligations, and lawyers who excuse their wrongdoing on the grounds that their role required it are to be vilified. I argue that taking a virtue ethics’ approach to lawyers’ dilemmas shows that there is truth, and falsehood, on each side of this debate.”
John Ip, from the Law Faculty, will deliver a paper entitled:
New Zealand’s Hate Crime Legislation: Theory and Practice
Time: 5.30 PM, Thursday 26 April 2007.
Venue: Small Lecture Theatre, 1st Floor Bldg 803
John Ip is currently a lecturer in the Law Faculty at Auckland University. He is a graduate in law and politics of Auckland University and a graduate in law of Columbia University.
Abstract: Hate crime legislation, which imposes harsher penalties for crimes motivated by certain types of hatred or prejudice, is a controversial topic. Some claim that a genuine commitment to equality requires the enactment of hate crime legislation; others claim that such legislation violates the idea of equality before the law and infringes on personal autonomy. This paper considers the merits and the impact of New Zealand’s hate crime legislation: section 9(1)(h) of the Sentencing Act 2002. It compares the provision with hate crime legislation overseas, examines its impact on sentencing practice to date, examines the justifications of and objections to such hate crime legislation and considers whether s 9(1)(h) is compatible with the New Zealand Bill of Rights Act 1990.
Paper Available on Request: Anyone wanting a copy of the paper ahead of time should contact John Ip: j.ip@auckland.ac.nz but the presentation will not assume those present have read the paper. The paper is also available in 21 NZULR 575.
Professor Jim Evans of the University of Auckland will present a paper entitled:
“Rights-preferring Interpretation: Where are the limits?”
Time: 5.30
Venue: Lecture Theatre, 3rd floor, Bldg 801, Law School
The paper will be followed by discussion.
Tea and Coffee is available in the Law Staff Common Room (4th floor) from 5.10.
