Articles |
Neuroscience, “Folk Psychology”, and the Future of Criminal Responsibility
Warren Brookbanks* |
This article examines claims that cognitive neuroscience challenges the theoretical and practical efficacy of the notions of free will and criminal responsibility and threatens to dominate the entire legal system. The notion of “folk psychology” — popular explanations of behaviour of which criminal responsibility and its analogues may be a manifestation — is considered in light of the challenges posed by eliminative materialism and deterministic neuroscience. The question that is posed is whether the concept of criminal responsibility will be able to withstand the imperious advances of modern science inherent in cognitive neuroscience and other reductionist accounts of human behaviour. The article concludes that, while neuroscience technology may impact the way in which certain evidence is led in criminal trials, it is unlikely (at least for the foreseeable future) that neuroscience will undermine the libertarian concept of free will on which the retributivist system of criminal law depends.
*Professor of Law, The University of Auckland. This article is based on the author’s Inaugural Professorial Lecture, The University of Auckland, 19 September 2007.
|
Indigenous Peoples and the Maori:The Right to Self-Determinationin International Law — From Woe to Go
Nin Tomas* |
This article explores the development of protection for the rights of indigenous peoples at international law, via application of the principle of self-determination. It begins by looking at external perceptions (or lack thereof) of indigenous peoples in the early history of international law, through to recognition of indigenous peoples’ rights in 2007; and then moves the discussion into Aotearoa New Zealand, focusing on Maori as the tangata whenua of Aotearoa New Zealand.
*Faculty of Law, The University of Auckland. I would like to thank my research assistants, Rebecca Kruse (Politics) and Katherine Mulcahy (Law), for their assistance in gathering material for this article. I also thank Tim McBride, whose request that Deidre Bourke and I review and amend the chapter on self-determination for the forthcoming McBride, New Zealand Civil Rights Handbook (4th ed, 2009) led to the writing of this article.
|
The Solicitor’s Duty
Duncan Webb* |
This article explores the nature and source of the obligations placed on a solicitor who acts for different parties to the same transaction and considers that the usual approach of identifying the opposing, or potentially opposing, interests of the two clients is erroneous. Rather, the article argues that the core issue is whether the solicitor owes duties that are inconsistent and maintains that the nature of the relationship between the parties — their relative status — is the foundation of the fiduciary obligation. In this, the article relegates contractual obligations to a secondary place. It is suggested that recognizing the relationship-based foundation of the fiduciary obligation will assist in determining and understanding the limits of curtailing fiduciary obligations by contract or other consent-based mechanisms.
*Professor of Law, University of Canterbury. |
Reviews |
Commercial Law
Duncan Webb |
The Credit Contracts and Consumer Finance Act 2003 (“the CCCFA 2003”) came into force on 1 April 2005. Having been in operation for some three years, the time is ripe for a review of its operation. As was perhaps to be expected, major financiers have managed the transition to the new framework well.
It also appears that the unstated objective of the CCCFA 2003 — to crack down on poor practices in fringe lending — has had some effect. It is of note that, while the most widely heralded changes were wrought by the CCCFA 2003 in respect of disclosure and the introduction of the new concept of a “consumer credit contract”, this is not where the most friction has existed.
|
Public International Law
Treasa Dunworth |
Ye v Minister of Immigration (CA 184/06, CA 192/06 & CA 205/05, 7 August 2008, Glazebrook, Hammond, Chambers, Robertson & Wilson JJ) presented the courts with a familiar scenario — how properly to take account of the interests of children, who are New Zealand citizens, when considering the removal of their parents. For the purposes of this review, it gave rise to two questions of international law.
The first was whether, as a matter of international law, the interests of the children were still a “primary consideration” in decisions under the Immigration Act 1987 (“the IA 1987”) (specifically, removal decisions), or had the standard changed to the interests of the children being the “paramount consideration”? The second question was whether international law required that, in decisions affecting them (such as the removal of their parent from the jurisdiction), children ought to be heard separately and, if so, what that entails? That question turned on Art 12 of the United Nations Convention on the Rights of the Child 1989 (“the UNCROC”) and how it influenced the relevant domestic law provisions...
|
Tort Law
Stephen Todd |
The so-called “leaky building” problem in New Zealand has claimed thousands of victims and is a shocking indictment of building standards in this country. And having suffered major financial loss through acquiring a leaky home, victims may have to contend with a nightmare of legal complexities. The cases frequently raise a variety of issues, each requiring determination in relation to multiple plaintiffs in different situations and multiple defendants seeking to blame each other.
The recent leaky buildings decision of Heath J in Body Corporate 188529 v North Shore City Council [2008] 3 NZLR 479 well illustrates some of these problems. We will consider only certain selected legal issues, mostly without discussing how the relevant principles applied to the facts of the case.
|
|
2008 Issues 
