Law 121 Exam Questions with Complete
Solutions
Natural Law - Answer-Natural law is law as it "ought" to be based on ideas of justice,
morality and reason. Law should be measured against an external standard and the
validity of law depends on whether it conforms to this external standard or not. Natural
law theorists believe that human law is only meant to formalize these fundamental moral
principles and thus any law contravening these principles should not be followed.
Therefore, unlike with positivism, law is not regarded as separate from morality, but
rather law is subordinate to that morality.
Criticisms of natural law - Answer-Hard to agree on an external code to which we hold
the law to when we all have our own individual subjective views and experiences. With
ever increasing heterogeneous societies and an even broadening international
community, it seems increasingly unlikely that consensus will ever be achieved.
Positivism - Answer-Positivism indicates that law is law because of its source. Law has
the status of law if a recognised human authority (the sovereign) declares it to be law.
Positivists argue that there is no relationship between morality and law, and thus the
content is irrelevant in determining its validity. The law is the law if it was created by the
correct authority and if the correct authority follow the appropriate procedures.
Criticisms of positivism - Answer-The law is meant to be amoral and whatever the
sovereign says it is, but how do they choose what to make into law? Realistically, they
must follow some code or another. If valid law is law which has gone through the correct
process, what makes the process valid? Circular argument.
Legal Realism - Answer-Realism centres on the idea that courts make the law and that
law is biased by the perceptions of judges. The outcome of a case is not merely decided
by the facts or the law, but the judge and non-legal reasoning such as their
morals/beliefs/upbringing/position in society. Realist theorists believe that judges may
make their decisions based on fairness and hunches rather than legal reasoning and
then use the law to back up their decision. Thus, realists believe that ruling of courts is a
subjective exercise producing ambiguous, inconsistent, contradictory results.
Criticisms of realism - Answer-A criticism of legal realism is that it does not offer any
alternative to the inherently flawed judicial system.
Critical Legal Studies - Answer-It is often thought that law is applied neutrally and it
does not take sides, but critical legal studies theorists seek to break down this
misconception. These theorists argue that the law is not fair nor value free, but is said to
be political whereby the powerful manipulate the law to protect their own interests and in
doing so, the law oppresses "the other". Thus, law is indeterminate and law legitimises
inequality, but social control is maintained through the belief that the system is neutral.
, Criticisms of CLS - Answer-A criticism of critical legal studies is that it does not offer any
alternative to the inherently flawed legal system and thus, does not address how we can
balance national security with individual liberties and protected property rights with
individual rights to fundamental necessities.
Tikanga - Answer-Tikanga is the traditional law of the Maori people and is regarded as
the first law of New Zealand. However, Tikanga is more than just a legal system, it is a
worldview. The Code of conduct in Tikanga includes rules of behaviours people are
meant to abide by. It is fluid and will change based on context and situation. There is a
focus on Collectivism and that everyone and everything is connected through
Whakapapa. The rights of the individuals are intertwined with relationship to community.
There is no external code and no formal authority imposing rules of conduct upon
everyone.
Tikanga vs Western Law - Answer-NZ's legal system
STRUCTURE
English
- Branches of govt - the legislature, executive and judiciary
- Top down State centric approach to law
Tikanga
Certain behaviours expected but no external code nor - No formal authority that
administers the rules of behaviour
- Flexible and is contextualised based on the community
Based on age old principles
- Ground up approach to the law
IDENTIFICATION OF THE LAW
English
- Formally written down
Tikanga
- Oral tradition
Songs, stories, talks are key to passing knowledge between generations
WHOM THE LAW APPLIES TO
English
- Focus on the individual
- It is the individual and only the individual who is punished for committing a crime
Tikanga
Solutions
Natural Law - Answer-Natural law is law as it "ought" to be based on ideas of justice,
morality and reason. Law should be measured against an external standard and the
validity of law depends on whether it conforms to this external standard or not. Natural
law theorists believe that human law is only meant to formalize these fundamental moral
principles and thus any law contravening these principles should not be followed.
Therefore, unlike with positivism, law is not regarded as separate from morality, but
rather law is subordinate to that morality.
Criticisms of natural law - Answer-Hard to agree on an external code to which we hold
the law to when we all have our own individual subjective views and experiences. With
ever increasing heterogeneous societies and an even broadening international
community, it seems increasingly unlikely that consensus will ever be achieved.
Positivism - Answer-Positivism indicates that law is law because of its source. Law has
the status of law if a recognised human authority (the sovereign) declares it to be law.
Positivists argue that there is no relationship between morality and law, and thus the
content is irrelevant in determining its validity. The law is the law if it was created by the
correct authority and if the correct authority follow the appropriate procedures.
Criticisms of positivism - Answer-The law is meant to be amoral and whatever the
sovereign says it is, but how do they choose what to make into law? Realistically, they
must follow some code or another. If valid law is law which has gone through the correct
process, what makes the process valid? Circular argument.
Legal Realism - Answer-Realism centres on the idea that courts make the law and that
law is biased by the perceptions of judges. The outcome of a case is not merely decided
by the facts or the law, but the judge and non-legal reasoning such as their
morals/beliefs/upbringing/position in society. Realist theorists believe that judges may
make their decisions based on fairness and hunches rather than legal reasoning and
then use the law to back up their decision. Thus, realists believe that ruling of courts is a
subjective exercise producing ambiguous, inconsistent, contradictory results.
Criticisms of realism - Answer-A criticism of legal realism is that it does not offer any
alternative to the inherently flawed judicial system.
Critical Legal Studies - Answer-It is often thought that law is applied neutrally and it
does not take sides, but critical legal studies theorists seek to break down this
misconception. These theorists argue that the law is not fair nor value free, but is said to
be political whereby the powerful manipulate the law to protect their own interests and in
doing so, the law oppresses "the other". Thus, law is indeterminate and law legitimises
inequality, but social control is maintained through the belief that the system is neutral.
, Criticisms of CLS - Answer-A criticism of critical legal studies is that it does not offer any
alternative to the inherently flawed legal system and thus, does not address how we can
balance national security with individual liberties and protected property rights with
individual rights to fundamental necessities.
Tikanga - Answer-Tikanga is the traditional law of the Maori people and is regarded as
the first law of New Zealand. However, Tikanga is more than just a legal system, it is a
worldview. The Code of conduct in Tikanga includes rules of behaviours people are
meant to abide by. It is fluid and will change based on context and situation. There is a
focus on Collectivism and that everyone and everything is connected through
Whakapapa. The rights of the individuals are intertwined with relationship to community.
There is no external code and no formal authority imposing rules of conduct upon
everyone.
Tikanga vs Western Law - Answer-NZ's legal system
STRUCTURE
English
- Branches of govt - the legislature, executive and judiciary
- Top down State centric approach to law
Tikanga
Certain behaviours expected but no external code nor - No formal authority that
administers the rules of behaviour
- Flexible and is contextualised based on the community
Based on age old principles
- Ground up approach to the law
IDENTIFICATION OF THE LAW
English
- Formally written down
Tikanga
- Oral tradition
Songs, stories, talks are key to passing knowledge between generations
WHOM THE LAW APPLIES TO
English
- Focus on the individual
- It is the individual and only the individual who is punished for committing a crime
Tikanga
