Dignity and Mana in the 'Third Law' of Aotearoa New Zealand

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.

Keywords: dignity, mana, bijuralism, bilingualism, indigenous laws, tikanga Māori, statutory interpretation, legal theory, legal values