On the 9th of January Stuff published an article in the “Press” entitled: “Maori academics say law students should also study tikanga Aotearoa’s first law” accompanied by a photograph of six rather smug non Maori looking law students attending a ceremony for admission to the bar wearing 17th century periwigs, gowns, and bands. The “Maori academics” are Professor Jacinta Ruru of Otago law school, and M/s Ruru. They cite a position paper (whose position it is not clear) which contends that the Bachelor of Laws degree needs to be rewritten to make it appropriately bijural, bicultural, and bilingual. M/s Ruru is described as a “lead author” of this paper. She says: “law schools are a production line for legal actors who serve as a continuing, if unwitting, site of colonisation.” She adds that “all law schools in Aotearoa New Zealand ….entirely privilege Pakeha teaching and leadership.” She demands “radical reforms “like making a competence in te reo basic for any budding lawyer as a bridge created between the two founding cultures. She laments that the current university training privileges the settlers printed word over the oral tradition of tikanga Maori. She dreams of Otago having a second library where instead of dry statute books, Maori methods of learning will be employed “such as art, tukutuku, (Maori designs) weavings, carvings and photos of our maunga (mountain) our awa our tipuna.” A second proponent of this proposal to introduce Maori law into the LLB syllabus. Adrienne Paul a lecturer in Maori land law at Canterbury University says, “that the mechanics of how decolonisation should work is a part of what is now up for discussion.” In promoting these ideas to student’s M/s Paul accepts that “the reason for resistance to change is the negative view that the spirituality and social order at the core of te ao Maori is a problem if the law is meant to be something rational and dispassionate.” She is optimistic that this fusion of Maori spiritual beliefs and the existing colonial law is possible because the common law is partly made by judges in test cases which set new precedents.
Before attempting some analysis of these ideas, it is helpful to understand what is the “common law” of New Zealand. These commentators are correct in thinking it is a legal system imposed on New Zealand by the “colonial oppressors” following the agreement between Captain Hobson on behalf of the Crown and some Maori chiefs made at Waitangi in 1840. The legal system which came with the acceptance of British Sovereignty has its roots in the Norman conquest of Britain in 1066. Before that time there were codes in place in areas occupied variously by Angles, Saxons, Celts, Vikings, and Picts. The Normans swept these away and imposed a single legal system on the country. Hence the term “common law” and it embodies the “Rule of Law:” that is a legal code which applies equally to all citizens. It took the next eight hundred years for the common law to develop into the highly complex legal system which Hobson, on the instructions of the Foreign and Colonial Office brought to these shores, and it has changed exponentially since that time. Fundamental to this initiative was the need for the existence of a nation state to which all citizens belong. Without that it is simply not possible to have one law applicable to all because it requires a single political entity to make the laws and enforce compliance. It has been long accepted that there are necessary preconditions to the existence of the sovereign state as codified by article one of the 1933 Montevideo Convention. They are: a permanent population, a defined territory, a central government, and capacity to enter into relations with other states. Early Maori tribal society fails all of these tests.
The content and reach of the common law mutated over the intervening centuries to meet the requirements of society at any given time. It proceeded from a rather primitive system of writs which the courts would recognise and enforce and written down in the rolls, something reflected to this day in the status of the Master of the Rolls the Judge who ranks second behind the Lord Chief Justice in the judicial hierarchy. Because England was and is governed by Monarchs all law flowed from the person of the King or Queen as the head of state, originally in their personal capacity and later, following the unwise usurpation of Divine right by Charles the first, through the agency of Parliament. That is why the primary place for the resolution of disputes was the Court of Kings Bench. The legal system was therefor and remains an indissoluble component of the notion of sovereignty and statehood, and it was so in 1840 when Captain Hobson arrived in New Zealand waters.
As mentioned, the law reflected the society in which it existed. From the time of the Norman conquest as social interaction became more complex so the common law adapted to meet changing needs. This involved the recognition and protection of private ownership of property and the passing of that property by way of sale or succession. It provided redress for wrongs against the person (Tort law) and recognised personal property rights such as leases patents and trade marks. The law adapted to provide remedies for the enforcement of contracts, and parallel with this it developed a system of equity which allowed relief from any injustice flowing from a strict and unjust application of the law. It provided increasingly for the protection of the rights of married couples and the property which they acquired and in addition to these civil law components the law developed a criminal code regulating those activities deemed to be violent or fraudulent incursions into the property or person of others and providing for punishments intended to deter such conduct. These notions are at the heart of the common law and around which many of the later refinements that we know today coalesced. If the success of a legal system is its utility and ready social acceptance the common law has been an outstanding success. It has found its way into every corner of the globe where the British went to trade and in most of those locations it remains the primary legal system to this day. These include The United States of America, Canada, India, Australia, New Zealand, parts of Africa, Singapore, a number of Pacific Islands and some Caribbean countries. The places where the common law exists are among the most successful, settled, prosperous societies on earth enjoying the greatest degree of personal freedoms. Almost without exception they also enjoy democratic government which is protected by the Rule of Law. There have been other successful legal systems such as The Code of Justinian which was at the heart of Roman law and currently, the Scandinavian legal systems and the French Code Napoleon, but no other competing legal system has enjoyed such universal acceptance or endured so long. This was the gift which Captain Hobson brought to the tribal chiefs gathered at Waitangi in 1840 and the quid pro quo for that gift was the acceptance of the British monarch as their head of state. All of which is recorded in the document which became known (erroneously) as the “Treaty” of Waitangi. Erroneous because the British government assumed that it would be dealing with an homogeneous nation state capable of entering into foreign treaties only to find that the inhabitants of these islands comprised a disparate collection of warring tribes none of whom recognised a head of state to which allegiance was owed. Without that recognition of British sovereignty there would have been no “Treaty” and the British would have sailed home leaving these islands to the tender mercies of the French who were waiting in the wings. Happily the consensus on the day was for acceptance of the British offer resulting in the peaceful and prosperous nation and the protected liberties which we all, Maori and non-Maori alike enjoy today.
It is this long-settled compact which some few, Maori academics and radicals now wish to disrupt aided and abetted by a biased and largely ignorant sensation seeking media. They do so by demonising the common law as a tool of colonial oppression and romanticise the life and practices of ancient Maori society into some sort of legal system. No doubt Maori peoples like any early society developed beliefs and customs in an attempt to understand the world in which they lived, but like any peoples on the long journey to civilisation as we know it some practices were violent and repugnant to present generations. As Ron Crosby points out in his book “The Forgotten Wars”, the arrival of the Europeans bringing their laws, and the influence of Christianity; “started to have a major effect, even tempering the desire to continue traditional customary practices such as the pursuit of utu (revenge) for every slight, imagined or real, and curtailing the customary practices of, slavery, the killing of captives and cannibalism.” To represent pre–European Maori practices as having a place in the common law of twenty first century New Zealand is absurd, largely because life was regulated by tribal groups, none necessarily subscribing to the values and beliefs of others. The fact is that before sovereignty was ceded to the British monarch in 1840 there existed in These Islands no nation state capable of making laws of general application. That being so It is first necessary to establish with precision which of the pre-European customs and beliefs if any should be imported into the Common law. Cleary it cannot be the barbaric means of acquiring and holding the use of property by warfare, it cannot entail the wholesale murder of those defeated in battle and certainly not cannibalism and slavery (clearly “black lives” did not matter then.) Might it then be some of the more spiritual beliefs such as the wairua of a river as having a life of its own, or the notion of tapu, or the existence of taniwhas (something which has held up more than one planning decision), who knows? Those who argue for the adoption of Maori values and lore into the common law do not confront this problem. Instead, they argue for the vague notion of “Tikanga Maori” to become a part of the current laws of New Zealand. But as discussed in an earlier article this notion has so many, largely conflicting meanings none of which have anything to do with any system of law which might be applicable to all New Zealanders and capable of meeting contemporary life and changing circumstances. At best, the various iterations of Tikanga Maori represent local beliefs and are frozen in time.
Why then is there this media driven cry to incorporate these inchoate values of one minority segment of society into the common law? One can only suppose it is seen as a means of redressing an aspect of the disadvantage from which some (but by no means all) Maori people undoubtedly suffer. Presumably, it is thought that to include early Maori beliefs into the legal system even if incapable of precise definition would somehow give a sense of belonging and dignity to a disadvantaged minority. This is a hollow argument, which has no place in deciding the makeup of a state ordained common law. Leaving aside the 1840 acceptance of the sovereignty of the British crown and all that entailed, a law which embraces the components of the beliefs of the various peoples who currently make up New Zealand society cannot by definition be a law common to all. The law is not concerned with making people feel better about themselves, or valued, it is the dispensation of impartial justice to an external standard of universal application. Thus, if a Hindu is in litigation in the New Zealand courts with a Moslem unless the agreement between then specifies some other system of law there will be no recourse to the Koran or Hindu beliefs the applicable law will be the common law of New Zealand. One need only consider the chaos and resentment if the Hindu in litigation with a Maori finds that the Maori is to be judged by different standards.
What is so surprising is that these separatist notions are being peddled in our law schools. Thus it passes comprehension how requiring that the law be taught and practiced in the Maori language and embodying early tribal customs can advance its social acceptance or utility, or in any way promote the interests of Maori people given that with vanishing few exceptions all Maori speak English and resort to the common law courts with gusto when it suits them. The sole function of a law school is to educate students in the precepts of the common law comprising statute and case law. Leaving aside the futility of the massive task of translating the existing legal sources into Maori the simple fact is that the law does not exist to address historic grievances, or to prevent a language falling into desuetude. One would have thought that this is obvious beyond debate, but apparently not so to some of those who are charged with educating our young people in understanding the law. Those who promote mixing, undefined Maori values with the common law seem to forget what is the purpose of the teaching of law; it is to train those who would provide legal services to the public which in turn will assist in the peaceful and orderly resolution of disputes. For those who sit on the courts their sole function is to apply the law in resolving those disputes. To somehow confuse this crucial social necessity by mixing in the beliefs of an early tribal society with a universally applicable legal system is to display the most fundamental ignorance of why the common law exists at all and Judges of our superior courts who tinker with this populist nonsense are playing with fire: they do a grave disservice to the law, and the harmony of the society which it exists to serve. One does wonder whether some of our superior court judges who are keen to undertake these experiments have even a fleeting acquaintance with the; history, purpose and application of the common law as standing above these ephemeral media driven causes.
If Professor Ruru wants, in place of a law library a room hung with the portraits of her ancestors the walls of which are decorated with Maori weavings and carvings perhaps the Otago law faculty will oblige her, but it will not serve to replace a room (called by the “colonial oppressors” “a library”) which houses tens of thousands of pages of statute law and several hundred years of case law necessary for the lawyers to play their part in securing the peace and good order of society.