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The Epistemological Profile of Legal Doctrinal Scholarship—A Reply to Geoffrey Samuel
Full text linkThis piece is a response to Geoffrey Samuel’s review article that deals with my 2021 monograph, Legal Doctrinal Scholarship. I aim to correct misrepresentations of my position, but I also seek possibilities of a more constructive engagement between Samuel’s diachronic analysis of the development of legal thought and my synchronic account of the character of legal scholarship. The first substantive section aims to set the record straight by explaining my account of legal doctrinal scholarship (as a normative and hermeneutic discipline) against the background of my thoroughly interpretive methodology. Then, I move on to addressing some of Samuel’s specific objections to my account—related to the idea of the rational reconstruction of the law, the scope of interdisciplinary engagement in academic research into law, and the ideological profile of legal doctrinal scholarship. Finally, I address why Samuel’s own account does not fit into the parameters of my own theoretical project. My methodology leaves room for a range of different approaches to legal scholarship—including Samuel’s historical jurisprudence. However, Samuel’s approach lacks the argumentative force he would need to exclude the possibility of providing legal doctrinal scholarship with a plausible epistemological justification within the methodological parameters of my account. I argue that, ultimately, our debate is about the implications of methodological pluralism: the conditions under which theoretical accounts with very different methodological assumptions may have a correcting influence on one another.
Keywords: Samuel (Geoffrey); interpretivism; science; scholarship; normativity; rational reconstruction; interdisciplinary engagement; ideology; methodological pluralism
Remarks on Tikanga and the District Court
Full text linkThis article explores tikanga in the District Court context. It explains that the incorporation of Te Reo Māori (Māori language) and tikanga Māori is relatively new in the District Court. It discusses the introduction of Te Ao Mārama and solution-focused judging approaches since 2020 and goes on to describe how tikanga might operate in a Te Ao Mārama context.
Keywords: Te Ao Mārama; tikanga; education; rangatahi; Te Reo Māori
Is Legal Knowledge Regressing (Thanks to AI)?
Full text linkThis review article focuses on a recent book that poses the following question. Is law computable? In examining some of the contributions in this edited collection the article poses a second question. Is, as a result of artificial intelligence (AI) and law research, legal knowledge regressing? In its analysis of the book, the article examines several of the major epistemological problems facing the creators of a legal reasoning AI programme; and it concludes that some of the epistemological assumptions upon which AI research is based are assumptions rooted in old and discredited legal knowledge. Nevertheless, the article has few illusions that judging will one day be dispensed by robot judges, especially if liberal democratic cultures slide slowly into authoritarian societies.
Keywords: artificial intelligence; computer; Deakin (Simon); epistemology; Markou (Christopher); mos mathematicus; reasoning (legal); rule-model
Electronic title certificate as legal evidence: The land registration system and the quest for legal certainty in Indonesia
Full text linkThis paper analyzes the increasing use of electronic title certificates in the land administration system. On 12 January 2021, the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency issued Regulation No. 1 of 2021 on Electronic Certificate. This Regulation marks a turning point in the reformation of the system of land governance and security of tenure in Indonesia. By streamlining the land registration and dispute-resolution procedures, the use of the digital land title could increase the legal certainty of the Indonesian system of land tenure. It is possible that the digital certificate might transform the present method of a negative publication system with positive elements – the present mechanism for demonstrating ownership of land rights – into a positive publication system.
Index words: Indonesia, electronic title certificate, land tenure, land registration system, systems theory, girik rights, garapan right
The Marine and Coastal Area (Takutai Moana) Act 2011 and Tikanga: Some Challenges Arising
Full text linkThe following article is based on a speech delivered by Justice Powell on 3 May 2023 on the challenges of applying the Marine and Coastal Area (Takutai Moana) Act 2011. Justice Powell discusses the background and history of the current legislation. He then considers the challenges of applying tikanga under the statutory tests for customary marine title and protected customary rights.
Keywords: tikanga; customary rights; High Court of New Zealand
Tikanga and the Law Wānanga: Tikanga in Environmental Jurisdiction
Full text linkTikanga Māori is increasingly influencing the law of New Zealand, in every jurisdiction. The Environment Court is becoming more concerned with issues which necessitate knowledge of different tikanga Māori, matauranga Māori and Te Reo Māori. The following is a discussion on how tikanga affects the incorporation of Treaty of Waitangi and Māori concepts in the Resource Management Act 1991. It then moves to how and to what extent the Environment Court can consider relational and mana whenua issues. And lastly, Judge Doogan gives insights from a Māori Land Court, Waitangi Tribunal and Environment Court judge for practitioners on understanding tikanga issues and working with Māori collectives.
Keywords: Environment Court; Māori Land Court; Waitangi Tribunal; Resource Management Act 1991; Lex Aotearoa; Te Reo; tikanga; mātauranga; mana whenua; procedure; advocacy
