Auckland Branch: Past Events

Past Events: Auckland Branch

 

Title: Coercive Physical Force as Essential to the Concept of Law

Location: Building 810 Room 2.18 (December 1, 12pm).

Speaker: Joseph D’Agostino, Savannah Law School

Abstract:

The concept of law necessarily depends on coercive physical force and legal philosophers have erred in this area since Hart’s The Concept of Law (1961).  Recent works such as Frederick Schauer’s The Force of Law (2015) repeat Hart’s mistake by their failure to recognize that every law must have behind it the intent to apply coercive physical force.  Recognition combats confusion over law caused by divergence both of personal ways of accessing reality and of fundamental worldviews as well as clarifies issues such as international law’s status.  It also can promote a more libertarian attitude toward law.  I use novel arguments to demonstrate that the Benthamite-Austinian command theory of law is the correct one and argue that every law properly so called is a speech act that threatens violence.  I employ a common-sense naturalistic jurisprudence using natural kind concepts rooted in the causal effects of physical entities as models for all other concepts while adopting normative thin positivism rigidly separating law from morality and other factors.  The necessity of using coercive force to distinguish law from exhortation—and legal persecution from other forms of social disapproval in this age of fashionable feelings of oppression—becomes apparent with this approach.

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Symposium on: Dr Stephen Winter’s Transitional Justice in Established Democracies (Palgrave Macmillan, 2014)

Date: 28th October 2015 Time: 5pm

Venue: Women’s Federation room in Old Government House (corner of Princes Street and Waterloo Quadrant) University of Auckland

Speakers:

Dr Glen Pettigrove (Philosophy, University of Auckland)

Dr Arie Rosen (Law, University of Auckland)

Chair: Professor Janet McLean (Law, University of Auckland)

Read the report in Law News, 4 Dec 2015, Issue 43 here

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Review reprinted from Law News Issue 31, 11 Sept 2015. Used by permission

Defining ‘constitutionality’

By Stephen Winter

Is the Human Rights Act 1993 part of the New Zealand “constitution”? What about the Local Government (Auckland Council) Act 2009? And what would constitute grounds for answering either of those questions? At first glance, we might appeal to common judgement: the “constitution” is comprised of just those texts that are treated as “constitutional”. If so, then we might say that we know whether a statute is constitutional by observing behaviour. If, looking forward, a statute survives implied repeal or if, looking backward, it significantly changes how actors treat prior legislation, then it is constitutional. But that appeal to practice only takes us so far. What if we want to know whether the Local Government (Auckland Council) Act 2009 should survive implied repeal? We would then need to look for substantive grounds for deciding how we should treat particular statutes.

In a seminar held on 19 August 2015 for the Auckland Branch of the New Zealand Society for Legal and Social Philosophy, Dr Adam Perry of Queen Mary University of London addressed the definition of “constitutionality”. As a preliminary, Dr Perry outlined three components of a good definition. The definition of “‘constitutionality” should: be consistent with our “considered judgements” regarding political and legal process; be safe from counter-examples; and explain why constitutional statutes garner treatment different from that of ordinary law.

Dr Perry surveyed both case law and scholarship for candidate definitions satisfying those desiderata. That survey suggested some common themes – constitutional law is thought to be characterised by its importance, its abstract and general nature and by its constitutive provision for important state institutions. Distilling these various thoughts, Dr Perry defined constitutionality by reference to two conjunctive characteristics, one of form and one of substance.

In terms of substance, a constitutional statute will concern state institutions. In terms of form, a constitutional statute will be “foundational”. Statutory foundationality can be realised in different ways, but at an abstract level, a statute is foundational if it does not depend upon (many) other statutes for its existence, intelligibility or normative character and many other statutes depend upon it in turn.Both conditions are necessary to a statute being constitutional, but perhaps not sufficient.

Dr Perry focussed the remainder of his discussion on the third definitional desideratum – the explanatory power of the definition. If many other statutes depend upon another statute, then changes to that statute would have significant disruptive ramifications.The problem of disruption explains why constitutional statutes survive implied repeal – Parliament can be presumed to legislate conservatively because frequent disruption would threaten the rule of law. Only if Parliament explicitly amends or repeals a constitutional statute should the courts reprise their understanding of the constitution.

Similarly, when Parliament enacts legislation with an explicitly foundational character, the courts should recognise that parliament has authorised a “fresh” constitutional development and reprise their understanding of ordinary legislation accordingly.

The question period focussed attention upon the account Dr Perry gave of “foundationality”. Is it possible to identify whole statutes with that “non-dependent” character, or would the analysis promote the decomposition of prima facie constitutional statutes into both ordinary and constitutional elements? For example, the Local Government (Auckland Council) Act 2009 might embrace both constitutional law and ordinary law. If so, then implied repeal might affect some, but not all, elements of that Act. In sum, Dr Perry’s analysis has the potential to facilitate a more nuanced jurisprudence.

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Review reprinted from Law News Issue 26, 7 Aug 2015. Used by permission

The underlying logic of administrative law

By Arie Rosen

Over the last decade, comparativism has become one of the main modes of engaging with public law theory. Comparative efforts today promise not only to reveal how systems can be different from each other, but also tell us something new about our own system and why it works the way it does.

Professor Peter Cane (Australian National University) does pioneering work in the emerging field of comparative administrative law. In his talk on 21 July 2015, co-hosted by the University of Auckland School of Law and the New Zealand Society for Legal and Social Philosophy, Professor Cane presented his recent work and gave a glimpse of his forthcoming book on mechanisms for controlling administrative power. In this research, Professor Cane draws on a comparison between England, the United States and Australia to offer a new theoretical framework for understanding the relations between substantive administrative law and institutional structure.

Professor Cane’s research sets out to explain existing differences between administrative law regimes in terms of the differences in the governmental structure. His starting point is a distinction between two models of structuring government and distributing governmental power. The first is a model of ‘diffusion’. In this model – characteristic of the federal system in the United States – power is shared between institutions in a way that requires different

institutions to work together in order to exercise any single power. This model is contrasted with a “concentration” model, in which institutions exercise powers unilaterally without a need for inter-institutional consent or cooperation. When this is the case – as it is, characteristically, in England – different unique powers can be seen as concentrated in different parts of the system.

Professor Cane’s claim is that the two models for distributing governmental power explain the emergence of different control regimes designed to control the exercise of administrative power. The “diffusion” model is tied to a “checks-and- balances” regime. This regime is characterised by a horizontal relationship between different institutions that “check” each other in the sense that any exercise of governmental power requires the consent or cooperation of more than one institution. Administrative power is thus controlled ex ante, as any use of power requires an often elaborate and cumbersome inter- institutional coordination. The “concentration” model, on the other hand, gives rise to a different control regime of “accountability”. Here, institutions do not need to cooperate in order to exercise their powers but rather are accountable to other institutions ex post facto. The power to hold another institution to account creates a vertical relationship between institutions and a ‘hierarchy of accountability’ within the state.

Professor Cane argues that his theory can explain differences in substantive rules of public law between jurisdictions. One example concerns rules of statutory interpretation and the doctrine of deference by the judiciary to the interpretation of administrative agencies. According to his theory, the US, which is prone to the diffusion and sharing of powers, is more hospitable to judicial deference and the “sharing” of interpretive power between the judiciary and administrative agencies. In England and Australia, on the other hand, interpretive power is concentrated in the judiciary in a way that makes it resistant to Chevron-like doctrines of deference.

In a lively Q&A session that followed the presentation, participants challenged the general applicability of Professor Cane’s theory. Counter- examples were given from other jurisdictions, in which, contrary to his suggestion, there is no correlation between the substantive rules of statutory interpretation and the structural composition of the legal system. Questions were also raised regarding complex systems that seem to defy a single logic of either diffusion or concentration in the allocation of governmental power. More generally, concerns were raised regarding the notion that substantive legal rules track institutional structures in the way Professor Cane suggests, and are in a sense predetermined by these structures. Notwithstanding these concerns, it was clear that Professor Cane’s forthcoming book is going to offer an innovative framework for understanding administrative law regimes and is bound to constitute a new point of reference in the field.

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Review reprinted from Law News Issue 19, 19 June 2015. Used by permission

“Rough” and “smooth” history – lessons from the Enlightenment

By Stephen Winter,

Sapere aude! Dare to know! First a trope and now a catchphrase, Kant’s imperative is sometimes used to summarise the European Enlightenment. Including Pufendorf, Rousseau, and Voltaire, the Enlightenment represents faith in reason and the refusal to accept traditional authority, whether in the form of the King, the Pope or the Philosopher (Aristotle). What Associate Professor Karen Green of the University of Melbourne calls “the smooth reading” of the Enlightenment sees a unified movement in which radical political, moral and scientific approaches emerge together as a coherent package. But the true courses of history are rarely smooth.

In a talk on 29 May 2015, Associate Professor Green offered an alternative “rough” reading of Enlightenment historiography. Associate Professor Green counterpoised two prominent 18th century writers of English history – David Hume (1711-76) and Catharine Macaulay (1731-91) – to show how the radicalism of each in one area contrasted with conservatism in another. First, Associate Professor Green outlined Hume’s conservative monarchical High Tory politics. Reading Hume’s The History of Great Britain, she emphasised how Hume critiques Parliament, Puritans and Presbyterians, yet treats Charles I sympathetically. She also noted how Hume’s political conservatism contrasts with his far-reaching and novel scientific empiricism. Hume’s empiricism in matters scientific led him to atheism, attacks on revealed religion, and the development of a non-natural ethics, in which morality is a social convention.

Associate Professor Green argued that Catharine Macaulay evidences the same contrast, only in reverse. Ms Macaulay is an orthodox thinker in religion and ethics for whom reason reveals moral truth. But Ms Macaulay’s politics are anything but orthodox. Her The History of England adopts a pro-Parliamentary and republican position and celebrates the death of Charles I as “that eminent act of justice”. Ms Macaulay’s history was supported by Whig defenders of the constitutional settlements with the monarchy, but her radicalism went further than most Whigs. Her argument for political equality entails a critique of monarchy under any guise and she attacks both the Restoration of 1658 and the “Glorious Revolution” of 1688 as lost republican opportunities. Whereas the “smooth” historiography of the Enlightenment flattens-out conflicts between radical politics, science and morality, Green argued that a more historically-authentic approach reveals a “rough” Enlightenment composed of many strands and internal conflicts, even amongst the savants who would “dare to know”. Their disagreements on fundamental matters belie any account of a single coherent Enlightenment.

A good example is the difference between Hume and Macaulay on the moral quality of human agency. Hume’s scientific empiricism pushes him to dispense with the traditional religious and moral insistence on a humanity constituted by free agency. In essence, Hume resolves the problem of free will by denying that humans are independent causal agents. In counterpoise, Macaulay’s republican equality rests upon her acceptance of Christianity’s personal equality before God and Macaulay resolves the free agency problem within conventional theology. That disagreement over fundamental questions of human nature and morality drives different politics. Hume’s moral conventionalism leads him to support existing customs of political rule while Macaulay’s combination of naturalistic ethical cognitivism and radical republicanism challenges the thought that Enlightenment progress depended upon empirically-oriented, proto-utilitarianism.

After Associate Professor Green’s presentation, much of the question period concerned whether or not we might recover a unified Enlightenment historiography in the face of fine-grained contextual disaggregation. Is it possible to talk about a coherent Enlightenment, while rejecting the naïveté that all Enlightenment thought should cohere? Chastened by the failure of history to conform to the grand progressive structure of Whiggish, Hegelian, or even Marxian historiographies, should good intellectual history focus only on variant and individual commitments and comments? In the face of that chastisement, the utility of historical frameworks nevertheless impels us beyond the particular, while, at the same time, unsettling confrontations with the messy worlds of actual history can help prevent us from falling into the “dogmatic slumber” of received intellectual frameworks.

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HELLO- I HAVE NOT WRITTEN THIS UP FOR LAW NEWS. BUT IF YOU ARE INTERESTED, CONTACT ME (STEVE WINTER) FOR A COPY OF THE PAPER

Dr Stephen Winter will deliver a paper entitled:

A Strong Case for Weak Form Review

Time: 3-4pm Tuesday, 24 March 2015

Venue: Room 220, Forum 4, Building 803 Faculty of Law, Univerity of Auckland

Abstract ‘Weak-form’ judicial review is characterized by two conditions: courts use a bill of rights to make law and parliament can contravene the court through the ordinary course of legislation. Therefore such judicial review is ‘weak’ in comparison to systems in which parliament cannot revise judicial decisions through normal procedures.  This paper uses republican theory to argue that weak-form review promotes legitimacy by multiplying sites for accountability.

Dr Stephen Winter is Senior Lecturer in Political Theory at the University of Auckland. He also chairs the Auckland Branch of the Society for Legal and Social Philosophy. In 2014 he published Transitional Justice in Established Democracy: A Political Theory with Palgrave Macmillan.

All are welcome to attend.

This event is being co-hosted by the Faculty of Law

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Review Reprinted from Laws News, Issue 40, 14 November 2014. Used by permission.

By Stephen Winter,

Future Ethics

The future has always played an important role in political thought. For the thinkers of classical Greece and Rome, the future was usually going to be worse. The Golden Age was in the past and the present, marked by vice, was tending to corruption. Christian historiography mirrored that pessimism. Tainted by sin, humanity could not redeem itself; hope depended upon divine intervention.

In the face of historical pessimism, one of the great developments of  the Enlightenment was the belief that historical progress was possible through human reason and experience. By the 19th century, the ameliorative assumption that the future would be better than the past had become pervasive. And that assumption had significant effect on the development of contemporary moral, political and legal thought.

Things are changing again. Although we might still hope, the denizens of the 21st century no longer share the ameliorative certainties of our recent predecessors. Environmental, technological, biological and militaristic developments all hold the potential for global disaster. In a talk given on 8 October 2014, Professor Tim Mulgan explored some ways in which we might think about futures that are radically worse and the consequences that pessimism has for normative theory.

Professor Mulgan’s talk addressed two possible future worlds. In the first future, that of a “broken world”, a resource crisis means it is impossible to meet everyone’s basic needs. Professor Mulgan argued that thinking carefully about such a possibility has implications for how we understand moral thinking more generally: he thinks it is evidence in favour of a consequentialist approach. The second possible future concerned the technological potential for “singularity”. “Singularity” describes a point in time in which an artificial intelligence develops the capacity to reproduce machines that are more intelligent than itself. As more intelligent machines build ever-more intelligent machines, eventually our world will contain “super-intelligences” (supers). Humanity will need to relate to these supers, who will be our superiors, but nearly all modern normative theory, including the law, assumes it is centrally concerned with relations among equals. Adding inequality is not likely to be simple. We should be worried that future “supers” will treat humans as we have tended to treat those we deem unequal. Human experience with the treatment of dependents, including (historically-speaking) slaves, serfs, women, children and animals, does not offer grounds for complacency. The prospect of a future in which humans are subject to the ends that artificial “supers” determine is, Professor Mulgan argued, disquieting.

Both possibilities, the “broken world” and the “singularity”, push us to rethink how we understand basic concepts such as rights. If things are going to be worse for future generations, those possibilities should affect what we understand as permissible today. The question period focused upon the theoretically-salient facts that might exist in these variant futures. These included the possibilities (and difficulties) of engineering “friendly” supers and the problem with the assumption that a moral future is one that is friendly to human aspirations. One possibility, raised by Professor Mulgan, is that moral truths might be human-independent. If so, smart supers, being better at moral thinking, might think that humanity is not the centre of the moral universe. If so, then the future of ethical thought might lie beyond a “Copernican revolution”. And if that is correct, our current understanding of its content might be quite inaccurate. Perhaps future ethics will be as to present thought as contemporary biology is to the natural philosophy of classical Greece.

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Review Reprinted from Laws News, Issue 31, 12 September 2014. Used by permission.

By Dr Stephen Winter, Chair, Auckland Branch of the New Zealand

Constitutional Traditions

A tradition is a practice that is continued, at least in part, because it is what has been done before. A constitutional tradition exists in the standards and customs that pertain to the existence, making and unmaking of law. Once a tradition is delineated, it becomes available for contestation, disagreement, development and radical departure. To say that is the way something is done is to create the possibility that others might try to do the same thing in untraditional ways.

In his talk on 28 August 2014, Emeritus Professor Andrew Sharp, of the University of Auckland, sketched four traditions that shape constitutional thinking in New Zealand. He began with the ‘ancient constitution’ of Britain. By the 17th century this constitution had been ‘discovered’ in the customary practices, privileges and precedents that comprised the common law of the realm. That legal corpus, developed over generations, ‘constituted’ the body politic. The metaphorical connections between the human body and the legal constitution were deliberate and taken seriously. The law was found, not made, and grew with the realm. Imposing change was equivalent to surgery –not to be undertaken by cavaliers.

The discovery of the ancient constitution was itself a response to political developments that would erupt into the Civil War, the Restoration and the Glorious Revolution that brought England into the Enlightenment. Within those struggles arose an alternative rational tradition in which the constitution was the work of the nation, possessed of a constitutive power, whose consent created legal authority that in turn was bound by reasonable limits imposed by natural law. This understanding of the constitution as a reason-respecting ‘public will’ embodied in the ‘King-in-Parliament’ would drive the major political eruptions in the 18th and 19th century, as first the Americans and then the French, made new constitutions the foundation of their new republics.

Both reason and custom, sometimes partners and sometime adversaries, travelled with European traders and settlers to New Zealand. Here, their adherents interacted with Māori politics. Those engagements meant both Māori and Pakēha had to impose and amend their constitutional conceptions. And out of those interactions, came, Sharp argues, two over-lapping but discrete Māori constitutional traditions. What Sharp called ‘Māori constitutionalism’ holds that the Māori constitute a nation, possessed of constitutive power, whose reasoned consent, visible in the 1835 Declaration of Independence, made the 1840 Treaty of Waitangi a federative compact. That constitutive power remains a wellspring for legal authority and provides the justificatory impetus for ongoing projects for restoring and respecting mana motuhake.

The second strand of Māori constitutional tradition emerges not from the constitutive will of a Māori nation (or nations), but instead from customary practice. It reposes in tikanga and kawa, and is found in the constitution of a marae or the composition of a whenua. Here, we return to the corporal metaphors of the ancient constitution, customary practice makes people who they are. The term tangata whenua links the land with the idea of the placenta: family, custom, place and blood.

Sharp argued that the two strands of British and Maori constitutionalism mirror one another. While there are differences, there are also commonalities between rational popular Enlightenment constitutionalism and Māori constitutionalism and between the traditions of the ancient British constitution and tikanga constitutionalism. Not only are the parallels worth noting, they share mutual problems and advantages. To understand New Zealand’s constitutional thinking, one must appreciate the syncretic and sometimes dissonant relationships between these traditions. Sharp stressed that the conflicts between them have deep historical and personal roots. The political struggles that erupt from this deep disagreements are likely to be painful and best managed not by imposing one model, but by moving quietly and carefully and, as New Zealand tradition insists, pragmatically.

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Review Reprinted from Laws News, Issue 30, 5 September 2014. Used by permission.

By Dr Stephen Winter, Chair, Auckland Branch of the New Zealand

Readers might be forgiven if they are unfamiliar with the “Repugnant Conclusion”. This philosophic argument, devised by Derek Parfit, begins by supposing that reason requires us to maximise good consequences for people. Most of us think it is good to be alive. Apart from special cases of illness and so on, life is good – that is one reason why we mourn death and celebrate birth. Now suppose we can select between two policies. The first would select a small population living full and rich lives. The second policy would continue to increase the number of people until everyone was living only marginally above the threshold at which it is good to be alive. If life is good, and more life is better than less (more good is better), then it appears that we should favour the second policy of continued population growth until we reach such numbers that life itself (nearly) becomes bad. Most people recoil from that conclusion, hence the argument’s “repugnance” – we want to reject the conclusion that maximal procreation is what reason demands. Parfit’s argument has a number of applications, but perhaps the most obvious include policy questions that arise in the context of a growing global population reliant upon ever more scarce resources.

In a talk to the NZSLP on 20 August 2014, Hamish Russell, the NZLSP’s 2014 Essay Prize winner, attempted to defeat the “Repugnant Conclusion” by identifying the human capabilities that constitute a life of human dignity. Mr Russell, who will shortly begin doctoral study at the University of Toronto, argued prospective lives only constitute reasons if they can be lived with dignity. In other words, we can reasonably prefer a population policy that enables everyone to live dignified lives to a policy that would condemn future generations to undignified existences.

The strategy specifies a “threshold” of human dignity and Mr Russell is not the first to suggest such a solution to the “Repugnant Conclusion”. The trick is to specify the necessary human qualities. If these are to justify constraints on global population growth, then they will need to be “truly human” goods – things that everyone could agree warrant promotion and protection and are acceptable to anyone anywhere. Mr Russell’s specification of such goods joins previous efforts by Aristotle (happiness), Kant (rationality) and Bentham (pleasure). None of those previous efforts garnered universal acceptance. And, given the diversity of human existence, we might despair of identifying qualities with universal human value.

For his part, Mr Russell emphasised that his argument concerns “capabilities”. Capabilities are things people are able to do and be. A common illustration is the distinction between starvation and fasting. Someone who is starving lacks the capability to eat, whereas someone who is fasting can eat, but chooses not to. Someone with the capability to do or be something is in control of what they do. Hence, to promote human capabilities is to promote human freedom. And, in response to the diversity of human values, the capabilities approach avoids prescribing which values people should pursue and instead focusses on ensuring that people have what they need to do and be whatever it takes for them to be truly human.

The question period focussed on the value abstract problems such as the “Repugnant Conclusion” have for decision-making in the real world. No one thinks we will ever have either the knowledge, or the ability, to make the kinds of decisions the “Repugnant Conclusion” envisions. However, in defence of Mr Russell (and Derek Parfit), it might be said that philosophic abstraction realised through eccentric examples can help uncover the nature of principles and considerations we might otherwise mistake in more familiar contexts. Like an athlete whose training takes her to the physical limits, going outside the normal ambit may make us better reasoners when we engage in the rough and tumble of everyday decision-making.

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Review Reprinted from Laws News, Issue 23, 18 July 2014. Used by permission.

By Dr Stephen Winter, Chair, Auckland Branch of the New Zealand Society for Legal and Social Philosophy

Accounting for Property,

Property is a fundamental legal concept. In a talk on 27 June 2014, Professor Allan Beever of the University of South Australia argued that, not only is the standard “rights-based” account of property unreflective of legal practice, but there is an alternative “relational” account which offers a better understanding.

Professor Beever began by outlining the main features of the “standard” model of property-as-rights”. A good example of this approach is Wesley Newcomb Hohfeld’s decomposition of property rights into a set of claims, liberties, privileges and immunities. For the rights approach, to have property is just to have a set of such rights. Nothing more need be added.

However, as Professor Beever noted, the rights account fails to explain several features of the law. These include the roles of adverse possession and prescription in the common law and the salience of certain connections between people and objects that the common law reflects.

As an example of the latter, Professor Beever noted how the well-known fox-hunting case, Pierson v. Post (1805), turned upon what kinds of connections between humans and unowned objects can (or should) create property. Developing the “relational” account, Professor Beever argued that property centrally concerns connections between agents and objects. That account has a jurisprudential pedigree, with examples from the Roman law finding support in writers such as Locke, Pufendorf, Kant and Hegel. Professor Beever also noted the sense in which property appears more rhetorically “primitive” than rights. We might be tempted to say, for example, “the fact that the watch is mine is a reason for you to return it”. From the rights account, that statement is odd. The statement “X is mine” is simply elliptical for “I have a right that it be returned to me”. It is does not, thereby, propose a reason for having rights.

Using the work of Kant, Professor Beever attempted to show how the relational account reflects important legal facts concerning social norms. Consider the following two circumstances:1. there is no norm that prevents Aroha from walking across the green; and 2. there is a norm that permits Aroha to walk across the green. A rights account such as Hohfeld’s sees no difference between 1 and 2. The relevant fact is that Aroha is at liberty to walk across the green. And this gets Hohfeldian accounts into the familiar difficulties that many (but not all) liberties are poor candidates for rights. But theorists like Kant recognise how social norms can provide a salient connection between agents and objects. The relational account provides a way to capture the normative force of respecting such practices.

At the foundation of the relational account, property is concerned with the value and space of agency – it does not exist in our rights, but instead in the ambit of human agency that it is permissible to use coercion to defend.

In the question period that followed, Professor Beever was asked how the relational account would cover the everyday legal practice of property in cases where there was no object with which to form a relation. Debt emerged as a central possible counter-example, for we customarily treat debt as a form of property and yet debt offers no thing with which one might form a relation. In response, Professor Beever stressed the conceptual difference between “being owed” and “being owned”, and it is worth reflecting upon whether the different legal possibilities that surround the differing domains of “mine and thine” reflect different conceptual underpinnings.

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Reprinted from Laws News, Issue 16, 30 May 2014. Used by permission

Theorising the Political Apology

Dr. Stephen Winter

Chair, Auckland Branch of the New Zealand Society for Legal and Social Philosophy

In March New Zealand apologized to Ngāti Raukawa as part of a Treaty of Waitangi Settlement agreement. Such Crown apologies are a standard component in a Waitangi Settlement and part of a global practice of responding to past wrongdoing that includes the Australian apology to the Stolen Generations (2008), among many others. Although apology is a political commonplace, there is, however, little agreement as to how we should understand political apologies and what makes them better or worse. These disagreements are important because political apologies are important and, consequently, agents and observers need to know what they should be looking for.

In a talk given on 1 May on themes from my book Transitional Justice in Established Democracies (Palgrave Macmillan 2014) I argued that the disagreement can be, at least in part, attributed to differences over who is apologizing. Political apologies are, invariably, offered by representatives. But who do these representatives represent? People generally answer that question in one of three ways: they either understand the apology as (1) issued on behalf of an aggregative of individuals, or (2) provided on behalf of a group such as a nation, or (3) as conveyed by a political institution. But not every opinion is equal. There are good reasons to reject the individualist and collective accounts and good reasons to endorse the institutional.

After offering some criticisms of the individualist and group-based accounts, I set out the case for the institutional. Institutional accounts treat state agencies, such as the Crown, as burdened by illegitimating wrongdoing with a responsibility to make amends. As a response to these burdens, apologies strengthen the political legitimacy of state institutions by discharging their liabilities. This approach ties our understanding of political apologies into larger discussion of Crown liability. It also explains why political apologies tend to respond to state wrongdoings and not individual ill-treatment or the harmful habits of a national group. And further, the institutional approach recognizes the institutional character of modern politics. The state is a set of institutions that create law and the best account of state acts (such as an apology) will reflect that reality.

The talk concluded with some reflections on weaknesses in the institutional account. For example, it is clear that when we look around the world people think apologies are made better when they involve large sections of the society. The Australian ‘Sorry Books’ and the 2000 Sydney Bridge Walk are good examples of mass participation. However, New Zealand’s apologies do not tend to involve large numbers of people. Does this make New Zealand’s apologies inferior? If so, then the institutional account framing of the apology as discharging liability comes under some pressure. However, in response, I argue that we should judge each apology as an apology and treat mass participation as realizing other important values.

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Review Reprinted from Laws News, Issue 10, 11 April, 2014. Used by permission.

By Dr Stephen Winter, Chair, Auckland Branch of the New Zealand Society for Legal and Social Philosophy

It is sometimes said that New Zealand does not have a “constitution”. Instead, New Zealand has a grab-bag of statutes, norms, conventions and principles that fall short of the status accorded to a “constitution”. Those claims often employ concepts of a constitution influenced by paradigms of a “legal constitutionalism”, the United States and Germany. As an alternative to that legal model, over the past thirty years writers have developed a “political” model of constitutionalism to describe those democracies in which Parliament remains the sovereign body. At first glance, New Zealand appears to be a paradigm example of such a political constitution.

In a recent seminar (19 March 2014), Edward Willis (of Webb Henderson and a PhD candidate at the University of Auckland) applied the theory of “political constitutionalism” to New Zealand. Mr Willis began with five criteria that distinguish a political constitution. In brief, these are: 1. Constitutional matters are addressed in
political (not legal) forums. 2. Legal claims are, ultimately, political questions (“Law is politics by other means”). 3. Fundamental norms are justified by the normative value of democracy. 4. All citizens have an equal status in deciding moral questions. 5. There is no special class of “constitutional politics” – all politics is ordinary politics.

The criteria apparently describe New Zealand very well. However, Mr Willis pointed to two broad areas of inconsistency between what the theory describes and New Zealand’s practice. As a first area of inconsistency, in adopting rights-based jurisprudence, the courts have, in Baigent’s case, not only derived remedies without a clear
statutory basis, but moreover, assigned liability for those remedies to the Crown. Mr Willis suggested that those remedies do not have a basis in New Zealand’s political sphere. Further, New Zealand courts now read questions of rights into legislation that are not envisioned by that legislation. Both points appear in tension with the political constitutionalist’s suggestion that legal claims must, ultimately, find a basis in the democratic process. As a second area of inconsistency, Mr Willis argued that the special amending procedures for sections 71(1), 28, 35, 36, 74 and 168 of the Electoral Act contravene the stipulation that “all politics is ordinary”. Those provisions for supermajorities and referenda imply a hierarchy of values in which electoral provisions are treated quite differently from other political business.

The lively question period involved discussion on a number of issues. These included the point, raised by Dr Arie Rosen, that the specified inconsistencies may reflect the influence of legal models of constitutionalism, albeit through different institutional arrangements than the paradigms of the United States and Germany. Therefore, a complete understanding of the New Zealand practice must draw from that theoretical tradition. Another point concerned the evidence derived from the Electoral Act. It was suggested that the special procedures surrounding the Act reflect the special value of democracy. Therefore, the Electoral Act might instantiate the one exception to the maxim “all politics is ordinary”. If so, then the inconsistency is not evidence against a political constitutionalism as a model, since it reflects the special normative value
of democracy that supports New Zealand’s constitution.

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Auckland Branch Event

Review Reprinted from Laws News, Issue 29, 6 September, 2013. Used by permission.

Responsibility in Unjust Institutions

Dr. Stephen Winter

Chair, Auckland Branch of the New Zealand Society for Legal and Social Philosophy

Suppose you go to a supermarket today and buy a banana. You confront a choice between a fair trade banana and one that is not. Should you choose the fair trade banana because to do otherwise would harm someone? Recent discussions in global justice theory have asked how we should think about our responsibility with regard to the unjust economic and political institutions that structure global trade and international relations. On one hand are those who argue that while the world might be unjust, this injustice is systemic and we should not make moral judgments about the day-to-day decisions of individuals who, of necessity, must live within it. On the other hand are those who argue that the rights-violating character of global institutions impose strict demands upon our every decision, even those as apparently innocuous as our choice of fruit.

These questions were addressed by Mr. Rees Skiff of the Political Studies Department at the University of Auckland in his 21 August, 2013 talk. Mr. Skiff is the winner of the 2013 Essay Prize offered by the Society. His talk concerned his prize-winning essay, ‘Pogge’s Theory of Responsibility’ in which he interrogated at responsibility attributions developed in Thomas Pogge’s 2002 World Poverty and Human Rights. Pogge’s book is a benchmark in global justice debates and stakes out the strong view that our participation in unjust institutions means that we are inflicting human rights violations. The decision as whether or not to purchase a fair trade banana is not merely a decision as to whether we will act virtuously, but a decision about whether we will be complicit in the human rights violations that constitute unfair terms of trade. If we choose the non-fair trade banana, we, as individuals, are responsible for global injustice.

Skiff’s paper criticized Pogge’s claim that individuals are responsible for human rights violations. He began by arguing that that Pogge confronts the epistemic objection that it is very difficult to discover what harm the banana-buyer would inflict. Further, even if Pogge could answer that question, Skiff argued that our agency is always constrained and we can have reasons to engage with unjust institutions if the consequences of not engaging would be significant. In other words, we can have reasons to do that which is wrongful when the costs of acting rightly are sufficiently high.  Rather than adopt Pogge’s strict language of rights, Skiff argued that we should see the injustice embodied in global institutions as providing defeasible reasons to both avoid engagement and to promote reform.

The lively question period focussed upon whether or not Pogge was committed to the claims that Skiff attributed to him and whether or not ‘rights violation’ is the best description of the banana-buying situation. The person who chooses an unfair trade banana is not obviously harming anyone. Instead, it appears to better describe this purchase as exploitative. We may have reasons not to exploit people and to avoid participating in exploitative systems, but rights violations are discrete acts and it is not obvious that purchasing of a banana is a discrete rights violation.

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Auckland Branch Event

Dr Christine Swanton Department of Philosophy, Auckland will deliver a paper entitled:

Virtue Ethics, The Counsel of Rogues?, and the role ethics dilemma

Associate Professor Tim Dare will provide a reply

Time:            5.00pm. Tuesday 11 June, 2013

Venue:          Small Lecture Theatre, Law School, University of Auckland.

Abstract:

The development of ‘virtue jurisprudence’ (a neo- Aristotelian virtue ethics for law) has become an important strand of legal ethics. However in his recent book The Counsel of Rogues?, Tim Dare argues that virtue jurisprudence cannot account for “robust” role differentiation. In response, I argue that a form of virtue ethics can account for two features:

(a)  There is robust role differentiation i.e. role differentiation as conceived by the Standard Conception of law (see handout).

(b)  Occupiers of legal roles are not permitted to act immorally (except perhaps in “tragic” dilemmas).

Dare’s criticism may be true where virtue ethics is conceived in ‘orthodox’ neo-Aristotelian terms. I reject this version of virtue ethics and offer a version which can accommodate (a) and (b) above.

Dr Swanton is currently working on the virtue ethics of Hume and Nietzsche, a virtue ethical view of love, and a virtue ethical theory of role ethics. Her book Virtue Ethics: A Pluralistic View was published with Oxford University Press 2003.

Associate Professor Dare is the author of The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (2009). Current projects include a review of Ronald Dworkin’s philosophy of law and an ethical analysis of a child maltreatment prediction tool for New Zealand’s Ministry of Social Welfare. He is also chipping away at a 3-5 year project on roles and morality.

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Auckland Branch Event

Review Reprinted from Laws News, Issue 11, May 3, 2013. Used by permission.

Legislative Intent – beyond the metaphor, By Dr Stephen Winter

Legislatures enact the law. Judges are supposed to interpret it. But judges often need to look beyond the bare legislative text to decide how the law applies to particular circumstances. One common device of interpretation asks what the legislature intends by the law. But how could a legislature, an institution composed of a large number of individuals, with different opinions, projects and prejudices, be said to intend any one thing? Indeed the legislature will normally contain representatives who vote against the bill they are supposedly intending to legislate! Consequently, the trend in twentieth century jurisprudence was to treat the language of legislature intent as merely metaphorical.

In his 22 April lecture Professor Jeff Goldsworthy of Monash University took up the side of those seeking more than metaphorical sense in the language of legislature intent. In his review of Dr Richard Ekins’ The Nature of Legislative Intent (Oxford University Press 2012) Professor Goldsworthy’s talk outlined Ekins’ core ideas and subjected them to gentle critique. The primary argument concerned an ideal-type analysis of legislation: If we are to grasp the purpose of law-making we need to understand how a ‘well-formed’ legislature behaves. Legislatures act (or enact); therefore, they operate as agents. If we are to understand their behaviour as agents we need to be able to give an account of their intentions. The interpretive question is therefore not ‘whether we can ascribe intent’, but ‘how we should do it’. The way forward is illuminated by work in the philosophy of group agency. A well-formed legislature enacts reasoned and coherent legislation and its representative members know this and aim to achieve it. The legislators know they constitute a group whose purpose is to act. While individual legislatures might disagree about particular legislature, they will have a series of supportive interlocking intentions to enact law and these interlocking intentions support subsequent judicial attributions of legislative intent. Professor Goldsworthy endorsed much of Dr Ekins’s argument. However, his primary critique concerned the information that judges should use when determining legislative intent. Whereas Ekins wants to attribute intent to the entire legislature, it seems clear that, in most cases, only a subset of the  legislature will know the content of a bill. Is ‘legislative intent’ reducible to the ‘intentions of the legislation’s designers’? If so, Goldsworthy argued that judges who seek to interpret laws may need to attend to the available evidence as to what the particular MPs who were active in the bill’s design intended. Acquiring this evidence may involve greater use of recorded Parliamentary debates than is currently customary, with all of the associated dangers.

The post-lecture discussion period began with questions as to the difficultly of mapping this theory of legislative intent onto reality. It is uncertain what useful information a description of an ideal legislature provides to judges who must invariably work with the legislatures (and legislation) that fall far short of the ideal. Moreover, it is uncertain that the purported ‘ideal model’ of the legislature is in fact ideal. Questions of legislative ideals appear to be both varied and contestable. Should the content of legislation depend upon a particular judge’s theory of law-making? – that is, should judges be asking themselves whether or not the legislature was, as Goldsworthy puts it, ‘well formed’?

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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?

click to open pdf

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”

click here to view paper

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

    1. Apologies
    2. Chairperson’s Report
    3. Financial Report
    4. Subscription for 08-09
    5. Appointment of Committee
    6. Activities of the Branch: Including Meeting Times, Use of Web-site, and Other Activities
    7. 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.

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