Best of: History and Theory (Volume 1, Issue 1)
Our ‘Best of’ ejournal editions are designed to showcase the best of the Faculty’s fantastic scholarship on SSRN.
We are thrilled to launch the Faculty of Law’s Research Paper Series with the first of our fortnightly ‘Best of’ ejournal editions. These ejournals are designed to showcase the best of the Faculty’s fantastic scholarship already available on SSRN. In this edition, we present a selection of one of our prime focuses: legal history and theory. Spanning the history of civil litigation in Aotearoa New Zealand in the 19th century, the personhood of artificial intelligence in history, New Zealand’s constitutional review, and democracy’s interaction with private law. These papers highlight the excellent quality of the Faculty’s Research Paper Series, which we encourage you to subscribe to and share widely with your networks.
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The Court of Requests in New Zealand in the 1840s was described in one newspaper report as “the people’s court” which was “open to all”. The Court played an important role as a forum for low-level debt litigation. There were plenty of forerunners. A Court of Requests was well established for small claims litigation in England before it was replaced by the County Court in 1846. A version of the Court of Requests successfully operated in New South Wales. Official records of the Court have not survived in New Zealand, but it is nevertheless possible to trace its history in contemporary newspaper reports. In time, the Resident Magistrates’ Court and the District Court would take over as the main forums for small claims litigation. These courts were all vital on a practical level in the way that they contributed to the operation of the economy of the colony. They also illustrate the way that English legal institutions were both transplanted into colonies and modified to take account of colonial conditions and were part of a broader shift towards a more legalistic framework in place of a system of more informal justice.
"The History of Death Duties and Gift Duty in New Zealand"
Michael Littlewood
The aim of this article is to provide an account of the history of death duties and gift duty in New Zealand. This is worth doing for two main reasons. First, the story of these taxes’ rise and demise constitutes a significant aspect of the country’s fiscal and political history. It might even be said that the story of New Zealand’s death duties is essentially the same story as the country’s political history, but cut at a novel angle. More particularly, whilst there currently seems to be very little enthusiasm for the reintroduction of death duties in New Zealand (except, perhaps, as a necessary accompaniment to a capital gains tax), these taxes for many years enjoyed broad political support. Indeed, it was widely regarded as obvious that a significant part – perhaps as much as 50 percent or so – of every large estate ought to go to the state. There seems, then, to have been a profound change in popular attitudes.
Secondly, the reform of the tax system is a process which, it seems safe to assume, will never be completed; even the system’s basic structure seems perennially up for debate. It seems obvious that the process of tax reform might benefit from an awareness of what has gone before; yet the literature on the history of New Zealand’s tax system remains incomplete. One of the aims of the article, therefore, is to make a contribution to the filling of one of the larger gaps in it. More particularly, there has been much discussion recently of the possibility that New Zealand should, like most of the rest of the developed world, introduce a tax on capital gains. If such a tax were to be introduced, it would be necessary, according to the view prevailing in most of the rest of the developed world, to support it with some form of death tax (or, at least, to structure the capital gains tax so as not to exempt inherited capital gains). But this aspect of the question seems to have received relatively little attention. If, however, there is to be a capital gains tax, and if it is to be accompanied by the reintroduction of a death tax, it might be useful to take into account the history of this form of taxation, as practised in this country.
With talk of driverless companies and bots substituting for human beings on company boards either in part or completely, the spectre of a future controlled by entities devoid of human beings is upon us. But has the future been here for longer than we all realise; has the corporation really changed? In this chapter it is argued that the modern business corporation has been separate from human beings since the 17th century. Developments in the English East India Company during that century meant functional separation followed legal separation, as boards were charged to act in the interests of the capital of the shareholders rather than the shareholders themselves. In closely held corporations, and for periods through history, the functional separation has reduced for a time. The trend through history, though, is towards separation precisely because that separation, combined with boards constrained to act in their interests, means corporations grow and prosper at least financially. The shift to artificial legal persons being controlled by other artificial entities is not therefore as radical as it might appear to be. This chapter will discuss the challenges that artificial intelligence (‘AI’) presents for corporate governance and will set the context for specific issues examined in the chapters that follow.
"‘Beyond Human Ownership’? Property, Power, and Legal Personality for Nature in Aotearoa New Zealand"
Katherine Sanders
In 2014, Te Urewera, land formerly comprising a national park in Aotearoa New Zealand, was declared a legal entity. In 2017, the Whanganui River was declared a legal person. This article analyses the grant of legal personality as part of a process that seeks to acknowledge colonial wrongs to hapū and iwi, indigenous descent groups. It argues that a primary purpose of the grant is to regulate human relationships. Legal personality recognises the competing claims of the Crown and hapū and iwi to political authority and allows for the establishment of new legal frameworks, which address who is entitled to act on behalf of the land and river. The article concludes that the settlements should be regarded as constitutional in nature – the grant of legal personality provides a forum for disagreement and compromise, and the opportunity for relationships between peoples, land and authority to be reframed.
What do we want a constitution to do? Do we want it definitively to settle deep political disagreements about our fundamental commitments as a nation or do we want it to set out a process out of which a settlement can evolve over time? The Constitutional Review terms of reference reflect 3 constitutional traditions which are often viewed as rival and conflicting : monism (governments hold plenary power between elections and any external controls on such power are antidemocratic); constitutional foundationalism (we already have a formal constitution in the Treaty of Waitangi which continues to speak to the form of our political institutions and to our law); and constitutional patriotism or cosmopolitanism (which appeals to universal rights and freedoms independent of history, time and place). The current unwritten constitution accommodates all three important traditions in a mutually limiting way. If we should decide to formalise further our constitutional arrangements we should learn from our experience of our unwritten constitution: our aim should not be to decide between these traditions in the abstract, or to resolve these issues one at a time, or to replace entirely our existing ordinary processes of constitutional change for a single high stakes constitutional settlement.
"The International Civil Servant in Theory and Practice: Law, Morality, and Expertise"
Guy Fiti Sinclair
What is the place of international civil servants in international law? How much do they contribute to making the legal norms and institutions that govern states? To what extent does law sustain and constrain their authority? These important and difficult questions are raised, directly and indirectly, by several recent works that examine the life and legacy of Dag Hammarskjöld, the second and arguably most influential Secretary-General of the United Nations. While serving in that capacity during the crucial years of 1953-1961, at the height of the Cold War and decolonization and perhaps the most formative period of UN history, Hammarskjöld was intimately involved in the formulation of several legal innovations that have since become staples of UN activity, including preventive diplomacy and peacekeeping. Yet he has also been accused, both during his lifetime and more recently, of expanding the authority of his own office to the detriment of democratic government. Reflecting on these works, this review essay argues that the authority of international civil servants should be understood and analysed as operating through three distinct yet interconnected modalities of discourse and practice: legal, moral, and expert. By giving due attention to all three modalities, a more accurate picture may be formed of the conditions under which international civil servants are able to govern, and their relationship to international law. Moreover, a comprehensive account of the authority exercised by international civil servants must take account of how they respond to any tensions that may arise between their bases of authority, as well as their shifting relations with other ‘global governors.’
"The Role of Democracy in Private Law"
Arie Rosen
The purpose of this chapter is to evaluate the division of labour between democratic and professional procedures for generating private law. By 'professional procedures,' I mean both adjudication and legislative processes controlled by members of the legal profession. By 'democratic procedure,' I mean legislation in which democratic processes of elections, representation, deliberation, and voting meaningfully shape the content of the law.
The chapter is written as a long answer to recent calls for the democratisation of private law. After generally tracing the structure of the division of labour characteristic of the making of private law in common law jurisdictions, I ask what principles of political morality and constitutional thought best explain it. I then use this explanation to identify a role for democracy in the making of modern private law.
How could one person justifiably create reasons for another? This article reissues this familiar 'standing' objection to authority, to demonstrate the structural contribution of recognition to both the idea of authority and its justification. Drawing upon theories of recognition of reasons and persons, it argues that authority must be robustly recognised, not merely identified, by both its subjects and its claimants. Such recognition operates in either roles or relations of authority to make a subject's relevant reasons for action an authority's business. By transmitting reasons between persons on both sides of roles or relations, recognition does the connective work that is necessary to distinguish the idea of authority from other concepts of control, while structuring its justification to require both standing between persons and standards in accordance with reasons. Without the connection between persons and transmission of reasons that comes through robust recognition, one's power over another is both claimed and received not as authority, but as coercion or persuasion; the claim itself entails meddling with (rather than serving) subjects.
"The Right to Freedom of Religion and the Right Against Religious Discrimination: Theoretical Distinctions"
Tarunabh Khaitan & Jane Calderwood Norton
This article argues that while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed, perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. Religious freedom is justified by the need to respect our decisional autonomy in matters of religious adherence. The prohibition on religious discrimination is justified by the need to reduce any significant (political, sociocultural, or material) advantage gaps between different religious groups. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.