However, this provision is only enshrined individually, since it can be amended without taking into account specific procedures. [11] No other general law establishes the institutions of the governmental framework or protects the civil rights of the individual. In 1985, Geoffrey Palmer`s White Paper proposed a bill of rights that included fundamental individual rights, the incorporation of the Treaty of Waitangi, and the authorization to judicially invalidate laws enacted in violation of the law. In addition, the paper suggested that the proposed Bill of Rights should be entrenched legislation. [12] However, this bill was not passed by the House of Representatives. On the contrary, a «watered-down version of the White Paper bill»[13] was adopted by Parliament. The New Zealand Bill of Rights 1990 is not enshrined and does not contain the Treaty of Waitangi, but sets out the rights of the individual as opposed to the power of the executive. Since the bill is not the supreme law, it can be amended or repealed by a simple majority vote of Parliament. One of the consequences of this status as a «normal» law is that in the event of an inconsistency between the Bill of Rights Act 1990 and another Act, section 4 of the Bill of Rights Act 1990 states that no law can be declared invalid simply because of this inconsistency. Rather, the general rule to be applied is that the latter provision prevails over the previous provision, which may also be the Bill of Rights Act 1990.
[14] Overall, the New Zealand Constitution establishes parliamentary supremacy as a guiding principle. As a result, legal law is the supreme law of the land. [15] There are two main sources of law: statutes (acts passed by Parliament) and common law. The common law has been developed by judges over the centuries and can be modified and developed by the courts to adapt to changing circumstances. Parliament may repeal, amend or further develop the common law by law. When comparing the German and New Zealand legal systems, some fundamental differences emerge. The two systems have retained their different roots. While New Zealand maintains its common law history, Germany has followed its civil history. In New Zealand, the common law still shapes the legal system. Therefore, judges have the power to «create» laws, and subsequent courts are obliged to follow it.
The development of the law takes into account the common law. Parliament always enacts legislation when it wants to reform the common law or regulate a newly created field of activity. As a result, laws often have a specific scope. German law, on the other hand, does not empower the courts to govern state law. Statutes are considered the main source of law. As a result, laws always seek to coherently cover an entire area of law, such as the Civil Code, which aims to regulate all matters under private law, with the exception of commercial law. Judges are limited by the application of legal law to business. As a result, no doctrine of stare decisis is recognized in Germany. Other differences include the technique of New Zealand judges to approach case law and extract the ratio decidendi from a case, as well as the lack of a written and consecrated constitution in New Zealand as opposed to Germany. Nevertheless, the two systems have converged in the way they deal with legal issues. First, exceptions to the doctrine of stare decisis have been made in New Zealand. The Privy Council is not bound by its own previous decisions, and the Court of Appeal has considered itself un bound by its own previous decisions in certain circumstances.
[218] In addition, courts always have the opportunity to argue analogously in order to distinguish their case from previous precedents, thereby giving them the opportunity to depart from previous precedents. These developments give judges acting in a system of case law that ensures consistency and therefore legal certainty through binding decisions the opportunity to act flexibly. As a result, judges have the opportunity to avoid unfair decisions, for example due to changing social and technological conditions that make a precedent inappropriate. German law, on the other hand, does not provide for a stare decisis system, which makes the system very flexible, as judges can rule on their cases without taking into account previous decisions. Nevertheless, such a system lacks legal certainty, although the law is provided for by law, since judges are free to interpret these laws differently. However, exceptions to this general principle have been made. Therefore, some decisions of the German courts have binding effect. Therefore, the decisions of the FCC must be followed and the Federal Court can only deviate from the predetermined principles by establishing a grand Senate. In addition, courts of appeal must obtain leave from the Federal Court of Justice if they wish to depart from a legal principle previously established by that court. In addition, courts of first instance bear the risk that their decisions will be overturned if they do not follow a previous decision of a higher court without very good reasoning. This makes it possible to achieve consistency in the German legal system. Overall, the two systems have come closer together.
They deviated from their original principles by making exceptions and thus evolved towards each other. By applying the law to business, both recognize that previous judicial decisions may be binding, but also offer the possibility of derogating from them. Finally, the courts of both legal systems operate in a coherent but flexible legal environment. [219] Case law (i.e., case law or the law established by judges) is based on the doctrine of decisive gaze and is primarily associated with courts based on English common law, but the concept has been partially adopted by civil law systems. The precedent is the legal principles accumulated from centuries of decision-making. Judgments rendered by judges in important cases are recorded and become an important source of law. If there is no legislator on a certain point that arises under changing conditions, judges rely on their own sense of right and wrong and decide disputes according to the original principles. Relevant precedents become a guide in subsequent cases of a similar nature. The Dictionary of English Law defines a precedent as a judgment or decision of a court cited as the authority to rule on a similar matter in the same way or according to the same principle or by analogy. Another definition[11] explains the precedent as «a decision of a court cited in support of a proposition it must advocate.» German law is based on a civil law system. As a result, laws govern an entire area of law in a coherent document. [140] The objective of the legislative process is therefore to provide codes that are completely, abstract and precisely worded.
[141] The codes contain principles and not specific rules as in the common law system. Often, general principles are filtered, placed at the beginning of the code or at the beginning of the respective part of the code, and followed by specific principles. These legal principles can be applied to new legal problems in order to obtain a solution. The role of the courts in such a legal system is to apply and interpret the codes. They are not in a position to develop new legal principles as in the common law system. [142] In this context, laws must be defined as federal and state laws as opposed to delegated law, customary law, or even the Basic Law. Various «loose-leaf» services are also available, which are usually thematic copies of laws annotated with commentary. Most of them are regularly used online (and are linked to the statutes provided by legal publishers, with references to the main cases). Printed copies are available in all legal libraries. New Zealand`s main comments on the loose sheets are as follows: Governments can sign international conventions and treaties; but these normally become binding[3] only after their ratification.
Most conventions enter into force only after a number of signatories have ratified the final text. [4] An international convention may be incorporated into a law (e.g. the Hague-Visby Rules for the Carriage of Goods by Sea Act 1971; for example, the Rescue Convention in the Merchant Shipping Act 1995). The Council of Europe`s European Convention on Human Rights is applied by the ECHR in Strasbourg. The Treaty of Waitangi occupies a special and evolving place in the structure of New Zealand`s social, legal and political composition. The treaty was signed in 1840 between representatives of the British Crown and various Maori leaders. There are Maori and English versions of the treaty that are not always interpreted as compatible. It is now widely recognized as one of New Zealand`s founding documents, but it also has legal significance. Although the contract is only legally binding if it is incorporated into a law, it is relatively common for laws to refer to the «principles of contract» and require that measures be taken in accordance with these principles. As the principles were never established by law, this formulation gave rise to a thorough judicial discussion. New Zealand courts and academic discussions have also increasingly recognised the role of Maori customary law as a source of law to be considered, although the question of how this should be done remains controversial. In case of contradiction between the provisions, the subsequent, the most specific or the higher standard.
[165] However, if a provision contradicts the Basic Law, the FCC declares it null and void in accordance with Article 93 GG. In addition, a law may cease to exist through the application of a new law,[166] the implementation of a «sunset clause» or its repeal by an Act of Parliament.
