Section 8 has the title "Treaty of Waitangi" and states that in achieving the purpose of the RMA, 'account shall be taken' of the principles of the Treaty of Waitangi. Most rule-making and decision-making is expressly related back to the 'Purpose and Principles' section, Part II, which contains the statutory definition of 'sustainable management' in section 5. Very soon after the enactment of the RMA, Fisher wrote a substantial legal analysis of the RMA showing that the definition of 'sustainable management' was possibly ambiguous.
Reasoning by Analogy To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases.
If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well.
Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" legalese for a slam-dunk.
More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case.
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The rule on the standard of care can be stated as follows: The standard of care must be that of a reasonable and prudent person under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples.
Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard. Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor.
Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking.
He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. By building the list of examples, we begin to see what is taken into account to determine the standard of care.
Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides.A balancing act - teaching and play, no one way A balancing act – working in partnership to meet the needs of every child A balancing act – .
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