Morgan, Gay --- "Introduction. Special issue - ALTA" [2006] NZYbkNZJur 1; (2006) 9 Yearbook of New Zealand Jurisprudence v

Last Updated: 19 April 2015

Introduction

Gay Morgan

The University of Waikato School of Law was founded in 1991 to provide a professional legal education, to develop a bicultural approach to legal education, and to teach law in the contexts in which it is made and applied. The Yearbook of New Zealand Jurisprudence is usually an annual collection of papers contributed by participants in the Staff Seminar Series of the University of Waikato School of Law or by participants in colloquia hosted by the Centre for New Zealand Jurisprudence (CNZJ), a Centre which is dedicated to the development of a uniquely New Zealand jurisprudence. The Yearbook is published in conjunction with the CNZJ and aims to stimulate and to contribute to the development of New Zealand jurisprudence by publishing articles, essays and other forms of analysis and comment which directly address or are relevant to issues arising in New Zealand jurisprudence. This year the Yearbook has drawn its papers from the 2005 Australasian Law Teachers Association annual conference, which had the theme of ‘One Law for All’. The articles in this issue are contributed by scholars from around Australasian and Africa.

These articles canvas a broad range of contemporary issues, each tackling the problem of justice demanding a uniformity of treatment and a recognition of a fundamental sameness of those seemingly diverse while also demanding that relevant differences be recognized and accorded differential treatment. The tensions inherent in the idea of equality, treating likes alike and differents differently, are such that they push some to query whether equality has any meaning at all. Nonetheless, that concepts of universalism and equality have been a potent force for justice in law, forcing legal systems to articulate persuasively why these are indeed like persons or situations and these are different. That requirement has been a deep part of the genius of the common law.

In this issue many of the tensions inherent in the idea of equal treatment for all in the law are considered. If there is to be one law for all, which law should it be? Should it be duty-based or rights-based? Should it be a law which recognizes differences between the strong and the weak? Should duties be based on biology or acts? Why should the answer change if we are considering parents and children rather than gender? If the basis for equal treatment is equal status, how do we decide when someone is in one category or another? Is rationality the only determinate of status, or can citizenship legitimately matter? Can location legitimately matter? Size? The knotty problem of equality

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and equal treatment in law requires us to determine who is equal to whom, for what purposes and in what circumstances. Do we all have equal rights? If so, how then do we justify national boundaries, differences in opportunity, differences in living conditions and so on? How do we justify treating children differently than adults? How do we determine when one becomes the other? Once we have any categories in law, we must justify the differing treatment that arises from having that category. The reasoning used to justify that category as demanding special or different treatment is then available to justify other categories as similarly requiring differential treatment. This inevitably leads to the questions of which categories should be recognized as legally relevant and which should be ignored as irrelevant. This sorting is a primary business of law, and ultimately raises issues about viewing people as properly categorized as primarily being members of a cultural, a religious, a financial, a professional or a political community, with identities and interests uniquely commensurate with that membership, which the law should recognize, in order to treat likes alike, or viewing people as properly categorized as relatively fungible individuals coming together to make up relatively fungible sorts of groups, all subject to like sorts of laws, be it a nation state, a corporation, a market, a religious, an ethnic or a global community, in order to treat likes alike. Which is the correct view of equality and justice, and how to balance these tensions and competing claims, are perennial questions of interest to us all, as lawyers, as legal scholars and as human beings. These are the big issues of our times, and therefore this is a big issue of the Yearbook.

The articles consider a diversity of problems raised by the idea of one law for all. In the international arena, should any boundaries or differences be recognized, between nations and citizens of nations? International ‘law’ encompasses national communities, some of over a billion persons, some with a few thousand, as well as mediating between those which are powerful and those which are not. Should it recognize these differences? Is it just for the criminal law to protect those it deems especially vulnerable from choices available to the robust? If so, how do we determine the vulnerable? If not, how do we justify treating children differently than adults? We see laws, whether in business, land, or governance, which treat likes differently, with unjust results, and law which treats some professions (such as law, surprise surprise) differently on the basis that they are different with a special public interest requiring different rules. How should law determine which claims of difference to recognize? Should the mere form of a business equate with a difference in legal treatment? It surely does now. Should different forms of dispute resolution be available, or should every dispute be decided in a uniform forum, with uniform processes, by uniformly trained people? These

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questions are also inherent in the idea of ‘One Law for All’. The same person that would answer yes to one of these questions may very well answer no to the next, depending on their interests and perspective.

Each of these articles engages with how law categorizes or should categorize like with like, unlike with unlike. Do borders justify different laws for different nations? Internally? Externally? Does location have any relevance for equal treatment in law with the emerging global space-time of the internet? This wonderful collection showcases a wealth of Australasian talent, and highlights the deep problems in justly developing and applying the appealing moral intuition that there should be one law for all. Which law? For which situation? For all what? Which forum for decision? Which decider? How trained? Once we open the debate, we quickly find ourselves back to Aristotle’s near tautology, that justice and equality mean treating likes alike and differents differently, and the process of deciding just what that means in any given situation. Law’s greatest, and perhaps eternal, challenge is to pursue that goal, through an open and ongoing conversation that engages with the competing claims of likeness and of difference that emerge from our human endeavour of being in society. The articles in this issue attempt to do just that.

Our job as law teachers is to prepare our students to engage in that ongoing conversation effectively. The last article gives us some food for thought about how we do and how we might go about doing that.

As a note to our readers, in 2007 the Yearbook will be expanding its horizons to include more consideration of the social issues inherent in law and in jurisprudence.

The Editor would like to thank the authors for their contributed articles and the referees to whom these articles were sent for their helpful contributions. The Editor would also like to thank Janine Pickering for her assistance in preparing this volume and for her absolutely steady and cool hand at the tiller, and, to thank Jane Walker and Amanda Colmer for their invaluable assistance in getting this edition print ready.

Gay Morgan

Editor

Yearbook of New Zealand Jurisprudence