LAWS101 @ Carrington
Tutorial 6
Legal History
Key Readings:
Stephen Smith: Chapter 7 – Parliament and Legislation
Study Questions
1. What is the difference between legislation and the common law?
2. What role did Simon de Montfort play in the development of Parliament? King Edward I?
3. In brief, what were the causes of the 17th century English Civil War? What was the result of the war?
4. Briefly describe the historical importance of the following Parliaments:
a. De Montfort Parliament
b. Model Parliament
c. Short Parliament
d. Long Parliament
e. Rump Parliament
f. Convention Parliament
5. What is the difference between the Parliament of England and the Parliament of the UK?
6. What are the similarities and differences in the original motivations behind the Petition of Right and the Bill of Rights? What are the similarities and differences in their content?
7. Why did the Bill of Rights declare that Roman Catholic indivduals were incapable of inheriting the throne of England?
8. What are some of the advantages and disadvantages of codifying CL principles?
Legal History – Essay Questions
This is an example of the type of essay question you will encounter at the end of the year. I have written a brief list of points to consider (read over this as an introduction to the NZ Legal History course component – next semester):
Comparison of Magna Carta (1215) and the Treaty of Waitangi (1840)
Introduction
§ Both important documents which deal with the rights of people.
§ Under the English Laws Act 1858, Magna Carta and other constitutional documents (Petition of Right, Bill of Rights) are part of NZ law along with the Treaty of Waitangi, but the Treaty is not applicable in England. There is no reciprocal law.
2 key examples of the Treaty being brought back into force:
1. The Treaty of Waitangi was disregarded until the 1970s – c.f King John’s disregarding that the Magna Carta existed
Example: 1877 – Treaty of Waitangi judged ‘a legal nullity’
§ The Treaty at its lowest point was described by Chief Justice James Prendergast in Wi Parata v Bishop of Wellington as “worthless” and “having been signed between a civilised nation and a group of savages”
§ Called a legal nullity as it hadn’t been incorporated into domestic law.
§ Despite this view being overturned by the PC, this viewpoint prevailed from the 1870s until the 1970s when Whina Cooper’s 1975 protest hikoi which reinvigorated the Treaty of Waitangi by forcing the government to pass the first legislative recognition of the Treaty – Treaty of Waitangi Act 1975, which established the Waitangi Tribunal as a formal, ongoing commission to hear grievances against the Crown.
Example: 1987 – CA decision in Land’s Case (NZ Maori Council v A-G)
§ Established that the Crown must pay heed to previous Maori ownership in disposal of surplus Crown assets such as land. Also established the Treaty principles which bind the Crown, e.g that of partnership by which the Crown as the more powerful partner, has a duty of active protection of the interests of the weaker partner, Maori.
Similarities- Written documents. Both the Magna Carta and the Treaty of Waitangi were written documents, and in different languages – the former in Latin, the latter in Maori and English
- Interpretation issues. Both documents had similar problems in interpretation E.g ToW – rangatiratanga vs kawanatanga
MC – debate as to what the King could and could not tax
- Meaning over time. The meaning of both documents has changed over time as they have tried to embrace modern concepts
- Constitutional nature. Both the Magna Carta and Treaty were constitutional documents:
Magna Carta – signed by King John (Crown) and the barons (the people)
Treaty of Waitangi – signed by Busby (on behalf of Crown) and the Chiefs of the United Tribes(the people)
- Circumstances. In the circumstances preceding the signing of both documents, there was a situation of relative lawlessness (MC vs ToW)
- Land issues. Both documents deal with land issues
MC – King’s ability to tax landowners for their land
ToW – Crown’s right of pre-emption
Differences
- Supporting documents. Magna Carta had 2 supporting constitutional documents ( Petition of Right 1628, Bill of Rights 1688/89) whereas the Treaty had both of those documents, the MC, and the Declaration of Independence 1835.
- Length.
MC = 69 clauses
Treaty = 3 short articlesDespite such a difference, both documents have encountered huge interpretation issues (see above).
- Effects. There was no question that when King John signed the MC at Runnymeade in 1215, he knew what he was in for. However, in signing the Treaty in 1840, many of the chiefs did not understand the implications of British sovereignty – were simply guided by the opinions of the missionaries.
- Initiation. MC initiated by the Barons, ToW intiated by the British Crown.
- Purpose. Treaty of Waitangi and international document (a treaty by definition) Magna Carta was a domestic document with no intention of being given status at international level (although it has subsequently seen huge international significance – in NZ, Aust, can be seen in US Constitution and Bill of Rights.
- Aims. MC was declaratory, a presentation of existing laws, whereas the ToW established new laws and a new legal system.
- Enforcement. Magna Carta had an enforcement clause (#61) whereas there was no such binding clause in the Treaty.
Conclusion
Magna Carta is 780 years old, a constitutional document signed on the other side of the world in a fundamentally different society, yet one can still ask whether the British (especially Hobson and Busby) had the Magna Carta in the back of their minds when drafting and signing the Treaty?
Was the Treaty intended to be a charter of rights like the MC?
Was the Treaty intended to keep peace like the MC?
If so, were these intentions realised as they had been following the Magna Carta?
Legislation
Opinion #2 – Comments and lessons
REMEMBER: Practice Test – 13 May, 7pm
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