Civil Disobedience and the Grounds and Limits of Obligation

Civil Disobedience and the Grounds and Limits of Obligation.

IIntroduction

This essay will analyze definition and justifications of the act of “law-breaking” harmonizing to John Rawls’ theory of civil noncompliance, in the context of the given event ( 1982 Raglan Golf Course protests ) . This requires in-depth apprehension of MA?ori tikanga ( MA?ori jurisprudence ) and its presence within the European ( Pakeha ) justness system. The first portion of the essay will discourse the issue in visible radiation of the Treaty of Waitangi and its application to the societal contract theory every bit good as intervention of MA?ori within Pakeha jurisprudence. This will be later followed by legion theoreticians refering themselves with the evidences of general duty to obey the jurisprudence and what constitutes as bounds to those duties.

AAnterior European colony and post- colonization

Tikanga MA?ori can be defined as “a system of values, principals, and patterns developed by MA?ori, New Zealand’s autochthonal people, to regulate relationships between persons and between hapu and iwi tribal groups” . [ 1 ] Harmonizing to the Law Commission, the system of tikanga so replicated the rules of the law” ; it is believed that “in any society there are people who are basal and people who act diversely but the record of behavior does non contradict the being of a higher ideal.” . [ 2 ] While tikanga does non present a set of printed regulations for right behavior or administered by a big external authorization, experts have established tikanga as a system of customary rules and values which have been founded and passed down to the following coevals through “tikanga tuku iho” [ 3 ] , which means, the usage, as a taonga ( hoarded wealth ) , has been passed down from one coevals to the following. [ 4 ] The system is comprised of many countenances which were derived from the kawai tipuna ( ascendants ) and were practiced and interpreted harmonizing to the contextual state of affairss of assorted iwi. Examples of countenances include mana, mana tupuna, tapu and noa, utu, mana, wairua and aroha, all successfully exemplifying what underpinned societal behavior for the MA?ori. [ 5 ]

However, upon the reaching of Europeans, this intricate system was non merely misinterpreted and disregarded, but it was left badly ravaged. Harmonizing to Moana Jackson, the unmarked consequence of colonization was the onslaught upon the MA?ori psyche that took from them their religion of all things that nurtured it. [ 6 ] The effort to replace this religion through learning them to fear God and accept the efficaciousness of Pakeha establishments in an effort to seek redemption left them experiencing weakened and uncomplete. [ 7 ] Moana Jackson added that “colonisation demands non merely physical acquisition of power and resources but besides religious denial of the autochthonal world.” [ 8 ] This was surely true for the MA?ori, whose jurisprudence did non let for the ceding of sovereignty in any signifier. For illustration, mana ( authorization ) or rangatiratanga ( resources, such as land, woods, estates or piscaries ) could merely be passed down from kawai tipuna in any iwi as was reflected under Article Two of Te Tiriti o Waitangi. [ 9 ] The MA?ori version of the Treaty granted the Crown “kawanatanga” , slackly translated as governorship, authorization lesser than sovereignty, over the colonists and did non allow Pakeha regulation over the MA?ori. Despite this, the English version of the Treaty of Waitangi which permitted the ictus of MA?ori resources is taken as a valid transportation of authorization and sovereignty from the MA?ori to the Crown. [ 10 ]

BacillusSocial Contract Theory with mention to duty and the Treaty of Waitangi

A societal contract is obligatory to all the individuals concerned as it is the lone rational option to the province of anarchy [ 11 ] , were harmonizing to Hobbes, human life was “short and brutish” . [ 12 ] This creates a corporate society out of separate parties and to move against the contract would propagate favoritism within the new societal order. Jindra Tichy and Graham Oddie raised the compelling issue of whether the Treaty, as a societal contact between the Pakeha and the MA?ori, created duty, which has been violated? [ 13 ] As Hobbes’ theory did non mean to parallel the province of nature with pre-legal societies, but merely with the province of upset, he maintained it was still possible for supporters in a province of nature of cooperate with one another freely, albeit in a reasonably instable understanding, due to the opportunism of one party dominating over the demand to collaborate with the other. [ 14 ] It has been historically demonstrated by events such as the Land Wars, that the Crown failed to exert temperateness of their involvement in MA?ori land and piscaries, and became involved with patterns such as “land-grabbing” , neglecting to recognize and implement the tribal ownership rights it had guaranteed in the MA?ori version of Treaty. [ 15 ] To interrupt the footings of the Treaty, non merely undermined the legitimacy of their sovereignty but besides potentially released MA?ori from their duty to stay by the Treaty’s footings. [ 16 ]

CCivil Disobedience in the context of MA?ori intervention within the European justness system

John Rawls defines civil noncompliance as “a public, non-violent, painstaking yet political act contrary to jurisprudence, normally done with the purpose of conveying about a alteration in the jurisprudence or policies of the government.” [ 17 ] He maintained that there were three standards, through which civil noncompliance could be justified, of which two are as follows. The first is a certain minority being denied rights that the bulk enjoy. The New Zealand Constitution Act 1852 denied work forces who owned communal belongings the right to vote in the freshly constituted Parliament, hence denying MA?ori work forces the opportunity to vote. [ 18 ] Additionally, the New Zealand Government Act 1846 denied MA?ori claims to set down, unless they could turn out business of the land they land, expeditiously rejecting the rangatiratanga of MA?ori over the land. [ 19 ] This defense of the MA?ori rights to vote and ain land clearly illustrates the unfairnesss MA?ori suffered and carry through this status of civil justification. The 2nd status is that bing political relations or the justness system turn outing unwilling to suit the minority and go forthing them no farther damages available. [ 20 ] The Crown’s treachery of the Treaty non merely presented itself in the signifier of legislative acts but besides in instance jurisprudence, denying MA?ori the entree to justice whilst exposing the inability of the justness system to suit MA?ori. A outstanding illustration is the instance ofWi Parata V Bishop of Wellingtonwhere the Ngati Toa iwi sought to repossess land, but were addressed by Chief Justice Prendergast as “barbarians” who besides regarded the Treaty as “a simple nullity” [ 21 ] , forestalling them from successfully accessing their belongings rights.

CRaglan Golf Course: Were the Acts of the Apostless of civil noncompliance justified?

Rawls states that unfairness that minority dissents against illuminates the clear misdemeanor of their rights, holding been more or less deliberate over an drawn-out period of clip. [ 22 ] History has proven that civil noncompliance was the “last resort” available to the MA?ori in seeking damages, and this was further highlighted by the events that took topographic point at the Raglan Golf Course. To protest against authorities ictus of that land on the 12 February 1978, several tribespeople from the Tainui Awhiro iwi entered the golf class along with Tohunga ( spiritual leaders ) , and danced traditional Hokan ( dances ) and performed karakia ( supplications ) . [ 23 ] The presentation fulfils the demands laid out in Rawls’ definition of civil noncompliance ; it was a populace, yet non-violent act with purpose of conveying to illume the discourtesy of sacred burial evidences as the chief misdemeanor of their rights. This is because tapu, a extremely culture-specific rite linked to hereditary case in point, is extended to topographic points associated with decease such as urupa ( graveyards ) in order to put it under protection or prohibition. [ 24 ] . The fact that dissenters were arrested on evidences of trespass clearly demonstrates the mono-cultural nearsightedness of the Pakeha justness system, which has failed to suit the MA?ori universe position and cultural demands. [ 25 ]

Overall, the Crown transgressing the footings of the Treaty by denying MA?ori entree to their taonga and profaning upon their countenances and values, potentially released MA?ori from their duty to stay by Treaty’s footings laid out by European jurisprudence. Harmonizing to the Hobbesian theory of societal contract ; they lawfully withdrew back to the province of nature. [ 26 ] Additionally, as their bing rights of entitlement to their ain resources were infringed upon, they were denied them equal intervention, such as the right to vote and ain land. Hence, their Acts of the Apostless of “law-breaking” are so justified on evidences of civil noncompliance ; their protests were non-violent presentations acted upon as a last resort, when jurisprudence failed to run into their demands and failed to re-compensate the MA?ori.

ThreeOther Grounds of Obligation

APositivism: Austin’s Command Theory and Hart’s Theory of Obligation

Hart deliberated the issue of legitimacy of the jurisprudence. [ 27 ] He maintained that, “where there is jurisprudence, there human behavior is made … obligatory.” [ 28 ] Thus, duty may be derived from the being of valid jurisprudence. John Austin argued that a rule’s cogency depended upon it being the bid of a crowned head, backed by menace at non-compliance. [ 29 ] Hart critiqued Austin, pulling a differentiation between a set of regulations and a “system” . [ 30 ]

He argued that Austin focused on ‘primary’ regulations of jurisprudence, which served to forbid certain sorts of behavior ; nevertheless a bound to the duty to obey was that accustomed obeisance failed to explicate the continuity of the jurisprudence. [ 31 ] Furthermore, Austin disregarded the actuality of ‘secondary rules’ ; regulations regulating primary regulations, of which included the “rule of recognition” . [ 32 ] Hart specified this regulation as, “the standards of legal cogency and its regulations in alteration and adjudication being efficaciously accepted as common public criterions of official behaviour” . [ 33 ] Hart argued that the regulation of acknowledgment legitimised the cogency of the jurisprudence based on it, and it gained its cogency from widespread credence by hatchet mans on the jurisprudence. [ 34 ] This facilitated his treatment on the differentiation between ‘being obliged’ and ‘having an obligation’ . The former, is a psychological response such as fright of confronting penalty at noncompliance, therefore making a legal duty. [ 35 ] Conversely, the latter is independent of the petition as it seldom back by menace, therefore taking to the premise that conformity may hold taken topographic point due to moral responsibility or duty. [ 36 ] However, as Hart described in the Separability Thesis, morality must be kept distinguishable from the jurisprudence and the law-making procedure. [ 37 ] This leads to the important appraisal that positive theories of duty are badly limited to reasoning that legal systems are self-contained, as they fail to supply a footing for regulations by which Torahs are made. [ 38 ]

BacillusNatural Law: Rights and Morality as bounds to the Duty to obey the jurisprudence

Natural jurisprudence theoreticians critiqued positivism for this really ground ; if positive jurisprudence is superior, a moral responsibility to obey the jurisprudence is irrelevant, as jurisprudence would be obeyed “because is are the law” . [ 39 ] Arguments against the being of aPrima facieduty to obey the jurisprudence are as follows: gratitude, just drama, implied consent and general public-service corporation. [ 40 ] First, the statement from gratitude arises with the premise that any individual may deduce benefit from the state’s disposal of the jurisprudence. M.B.E Smith argues that a individual is under no duty towards province public assistance, as he did non have a pick to have it. [ 41 ] Secondly, a responsibility of just drama entails obeisance of individuals who intentionally receive the benefits made available in a society ; nevertheless, citizens non provided with the option to decline these benefits or a society that has non institutionalised a strategy of societal coaction can non demand obeisance. [ 42 ] Third, the statement of consent evidences is the duty to obey the jurisprudence on an inferred promise, nevertheless as with the old standards, non having the chance to decline the benefits of said act can non raise duty. [ 43 ] Last, the statement of general public-service corporation states that the effects of the general noncompliance would be so desperate, no individual will disobey the jurisprudence unless everyone does so, nevertheless Smith maintained this as absurd. [ 44 ]

Clearly, without morality as a resort, the Torahs made by the crowned head ( while legitimate ) may non be equal in raising duty to obey the jurisprudence. In his scrutiny of the differentiation between legal and moral duty, T.R.S Allan stated that legal duty does so keep moral weight ; behavior breach in legal duty must be justified. [ 45 ] This is surely applicable to the act of civil noncompliance, as justification for behavior reverse to the jurisprudence. [ 46 ] In pattern, it may look that the bulk of citizens prosecute conformity with the jurisprudence for grounds presented in theories of positive jurisprudence, “prudence or even habit…” [ 47 ] However, if a citizen’s legal duty is further scrutinised it can be seen that it is chiefly “the part of jurisprudence to justness and the common good” when citizens genuinely view the jurisprudence as a beginning of duty. [ 48 ] A similar position of the connexion between jurisprudence and morality was shared by natural theoretician, Lon Fuller, who retained that for a legal system to be valid and just, it must be moral. [ 49 ] This is farther supplemented by the regulation of jurisprudence ; for case, a system that treats indistinguishable offenses otherwise, can non name itself lawfully valid as jurisprudence. [ 50 ] His attending to “internal morality” understood that claims of duty required the acquiescence of those addressed ( the rational citizen ) ; where the acquiescence is given, obeisance is voluntary, recognizing the conformity is justified. [ 51 ]

CApplication to MA?ori and Civil Disobedience

Where acquiescence is denied, is where the self-respect of the person, and the regard he is owed as a rational and responsible agent has been denied by the province, taking to him keep backing acknowledgment of those regulations. [ 52 ] The denial of equal MA?ori rights can be illustrated though legion illustrations of racialist justness, raised by Moana Jackson. One case occurred in Hastings, where two 15-year old male childs ( one MA?ori and one Pakeha ) , dropped beer bottles on the street and proceeded to kick the glass into the trough on the side route. [ 53 ] When constabulary caught them, the Pakeha male was charged with disposing unsafe litter ; nevertheless, the MA?ori male was charged with transporting an violative arm. [ 54 ] Jackson added the dramatic disclosure that “ [ many ] immature MA?ori people who have been through the constabulary, probation, the tribunals, prison … will likely at some phase say to you that the justness system is racist.” [ 55 ]

To remember the earlier treatment, a system that treats indistinguishable offenses otherwise, can non name itself lawfully valid as jurisprudence. [ 56 ] In conformity with Fuller’s argument, Allan maintains that the regulation of jurisprudence is an ideal of constitutional authorities. [ 57 ] It has been made apparent that the assorted histories of deliberate unfairnesss have been imposed upon the MA?ori over a drawn-out period of clip, giving rise to Acts of the Apostless of civil noncompliance as a justified last resort of obtaining a alteration in authorities policies, sing their rangatiratanga over their taonga and rights of equal citizenship as was promised by the Treaty.

FourDecision

This essay has discussed what defines civil noncompliance and whether the Acts of the Apostless of “law-breaking” that took topographic point during 1982 Raglan Golf Course protests were justified. Upon farther research, the demoralization of Tikanga values every bit good as bias against MA?ori within Pakeha jurisprudence became evident. This applied to John Rawls’ theory of civil noncompliance aboard analyzing the Treaty of Waitangi harmonizing to the Hobbesian theory reach the decision that the Acts of the Apostless of civil noncompliance were so justified. A treatment on positive theories ( viz. , Austin and Hart ) on the evidences raising a general duty to obey the jurisprudence followed this, nevertheless, a important restriction found was that the beginning or “validity” of regulations did non supply conclusive grounds for obeisance. [ 58 ] Hence, natural jurisprudence theories were considered and further served the statement that MA?ori duty to obey a jurisprudence is limited so long as it continues to conflict upon their rights.

VoltBibliography

ACases

Wi Parata V Bishop of Wellington( 1877 ) 3 NZ Jur ( NS ) SC 72.

BacillusLegislation

The Zealand Government Act 1846.

The New Zealand Constitution Act 1852.

CBooks and Chapters in Books

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Duncan Webb, Katherine Sanders and Paul ScottThe New Zealand Legal System Structures and Processes( 5th erectile dysfunction, Lexis Nexis, Wellington, 2010 ) .

HLA HartThe Concept of Law( Oxford University Press, New York, 1961 ) .

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John AustinThe Province of Jurisprudence Determined and the Uses of Jurisprudence( Weidenfeld & A ; Nicolson, London, 1955 ) .

JL ColemanHart’s Postscript: essays on the PS to Hart’s Concept of Law( Oxford University Press, New York, 2001 ) .

Micheal D.A. Freeman’sLloyd’s Introduction to Jurisprudence( 8^Thursdayerectile dysfunction, Sweet & A ; Maxwell, London, 2008 )

Jackson M “MA?ori Access to Justice” ( 1991 ) Race, Class, Gender Vol 11/12, 36-41.

Moana Jackson “The Treat of the Word: The Colonization of Maori Philosophy” in F Oddie and RW PerrettJustice, Ethics and New Zealand Society( Huia Publishers, Wellington, 2003 ) .

Rawls J,A Theory of Justice( Oxford: OUP, 1972 ) at 320.

Spoonley, PTauiwi: Racism and Ethnicity( Oxford Univerity Press, Univerity of Michigan, 1988 ) .

Tichy J & A ; Oddie G “Is the Treaty of Waitangi a Social Contract? ” in F Oddie and RW PerrettJustice, Ethics and New Zealand Society( Huia Publishers, Wellington, 2003 )

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CalciferolJournal Articles

Allan, TRS “Citizenship and Obligation: Civil Disobedience and Civil Dissent” [ 1996 ] Cambridge Law Journal 89-121.

Law CommissionMaori Customs and Values in New Zealand Law: Study Paper 9( Wellington, 2011 ) .

Ministry of JusticeHe Hinatore ki Te Ao Maori: A glance into the Maori universe( Ministry of Justice, Wellington, 2001 ) .

M JacksonThe Maori Criminal Justice System: He WhaipaangaHou ( Wellington 1988 ) .

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TocopherolInternet Resources

Lydia Bailey “MA?ori New Zealanders occupy Raglan Golf Course” ( 9 February 2013 ) Global Nonviolent Action Database & lt ; hypertext transfer protocol: //nvdatabase.swarthmore.edu/ content/maori-new-zealanders-occupy-raglan-golf-course-win-back-land-rights-1975-1983 & gt ;

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