Abstract
The concept of dignity is increasingly recognised in Aotearoa New Zealand case law and legislation as an important value. Indeed, it has the potential to become a foundational interpretive value within our legal system. Although its precise theoretical basis is contested, in its current conception it is typically grounded in the right to equality and/or autonomy and is presented as being equally inherent in all people. This conception generally fits well within the Anglo-New Zealand form of law that currently dominates New Zealand’s legal system (New Zealand’s “second law”). In contrast, in recent years, tikanga Māori has been recognised as a further source of law in this country (New Zealand’s “first law”). There are now promising signs that a “third law” is developing: a hybrid of the two streams, drawing on but conceptually distinct from each of its parents. Consistent with this development, the Māori concept of mana is increasingly invoked, in law, alongside dignity. In this Article we describe the results of our comprehensive overview and critique of the use of the term “dignity” within New Zealand law. We seek to convey a sense of the many ways in which dignity is being used in contemporary case law and legislation, and to encourage thoughtful engagement with the concept. As part of doing so, we critique the associations being drawn between mana and dignity and suggest that, to date, most invocations of mana and dignity fail to examine conceptual differences between the two terms. We further suggest that there is potential for a new, richer, third-law concept of dignity to develop: one that is distinctly Aotearoan, drawing on but conceptually different from its first- and second-law parents.
E mōhio whānui haere ana i te ariā o ‘dignity’ hei whanonga pono hirahira i ngā ture kēhi me ngā hanganga ture ki Aotearoa. Otirā, he pito mata pea kia tū hei whanonga pono tūāpapa ki roto i te pūnaha ture. Ahakoa e tautohe ana te paparahi tātai pū, kei tana huatau o nāianei, ka ahu mai i te mana taurite, i te mana motuhake hoki, ā, ka whakaaturia, he momo ōrite ki roto i ngā tāngata katoa. Ka noho tēnei huatau i roto i te ao ture Pākehā e whakatuanui ai i te pūnaha ture ki Aotearoa (ko te “ture tuarua” ki Aotearoa). Engari, i ngā tau inā tata nei, kua āhukahukatia ngā tikanga Māori hei puna ture hoki ki Aotearoa (ko te “ture tuatahi” ki Aotearoa). Ko te āhua awhero nei, e whakawhanake ana i tētahi “ture tuatoru”: he momorua o ēnei mea e rua, e whakamanawatia ana, heoi, e noho huatau ā-motuhake ana i ngā mātua. Pērā i te whakawhanaketanga, i te ao ture, e noho tahi ana te kupu Māori o ‘mana’ i te taha o ‘dignity’. Kei tēnei atikara, ka kōrerohia ngā tukunga iho o tā māua tirohanga whānui me tētahi arotaketanga i te kupu ‘dignity’ i te ao ture o Aotearoa. Ka hiahia māua kia whakaatu, he maha ngā whakamahinga rerekē o te dignity i te ture kēhi me ngā hanganga ture, ā, e akiaki ana i te whakawhitinga mahara ki te ariā. Hei wāhanga o tērā mahi, ka arotake māua i ngā hononga i waenganui i te mana me te dignity, ā, e taunaki ana, i nāia tonu nei, kāore te nuinga o ngā whakamahinga i te mana me te dignity e tautuhi i ngā rerekētanga ā-ariā i waenganui i ngā kupu e rua. E taunaki hoki ana i te pito mata mō tētahi momo hou, mō tētahi momo hira ake o te ariā ture tuatoru o te dignity: he momo nō Aotearoa, he momo e whakamanawatia ana, heoi, e noho huatau ā-motuhake ana i ngā mātua.