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Due diligence is on the rise in international law. However, its roots and historic narrative remain heavily Eurocentric in nature. This becomes problematic in the context of states’ due diligence obligations relating to the rights of indigenous peoples. Meanwhile, due diligence can also be found in indigenous legal systems. An example is tikanga, which regulates the lives of the Māori in New Zealand. This paper attempts to investigate principles of tikanga reflecting features of a standard of care and compares this to the way due diligence is currently given meaning in international law. From this it follows that tikanga puts more emphasis on ‘relationships and balance’ than contemporary positive international law does. |
Modern jurisprudence has typically been presented as a debate between legal positivism and natural law. Though the demise of legal positivism has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory. It is noteworthy that Hans J. Morgenthau’s legal thought and critique of legal positivism have remained unexplored in the context of this debate. Largely forgotten, his legal thought answers questions that lie at the heart of the natural law and legal positivist debate. It showcases his deeply nuanced understanding of legal and political theory and contains a powerful and insightful commentary on the fundamental problems faced by international law. |
