Thank you Garry (KC). I comment as follows with the most sincere humble appreciation for your experience, expertise and qualifications.
It would be interesting to see how such a discussion eventuates with Dr Amokura Kawharu - at com@lawcom.govt.nz - a discussion she is duty bound (as a government agency) to answer if you could spare the time?. I wonder if the response would be as per Peter Smith? That it is a bridge between differing legal systems?
Why my lack of comprehension? Because this now growing reality seems to neglect the realisation of the downstream practical consequences for New Zealand. I explain below:
Tikanga is deeply rooted in the realm of myth and legend, known collectively as pūrākau.
To truly grasp Tikanga Māori, it is said that it is essential to understand the foundational stories that have shaped Māori worldview and practices for generations.
Pūrākau explains in Māori culture the origins of the world, the relationship between humans and nature, and the roles and responsibilities of individuals within the community. These narratives form the ethical and moral compass that underpins Tikanga.
Myths and legends in Māori culture describe the creation of social hierarchies and kinship systems. Thus apparently we must understand these oral stories that provide insights into the importance of whakapapa (genealogy), whānau (family), and hapū (sub-tribe). They are only oral and what New Zealand Government is now asserting exists after agreeing with Māori researchers who conducted wide discussions with Māori elders and reported solely on the research bases of 'with Māori, for Māori, by Māori' only and solely. That protocol alone I would have thought would not be equitable for a court to make determinations on?
Pūrākau also introduces the concept of atua (deities) and their influence on the natural world. These beliefs shape Māori spiritual practices and rituals, which are integral to Tikanga. Many Tikanga practices, such as waiata (songs), haka (dances), and carvings, are directly inspired by pūrākau. Understanding the stories behind these art forms enriches the appreciation of their cultural significance.
Māori Myths and legends also explain the formation of the land and the creation of marine life. This knowledge informs Māori perspectives on environmental stewardship and resource management, key components of Tikanga.
Also Tikanga Māori is not a static set of rules, but a dynamic and evolving tradition. While pūrākau provide a foundational framework, contemporary Māori continue to adapt and interpret these stories as they wish and may prefer to "self-determine" under UNDRIP so as to address the challenges and opportunities of the modern world. That flexibility provides a great negotiation tool for Māori !
Are we to now accept that NZ will soon become part of a society based on myths and legends (that conveniently are "expanded" by Māori for legal interpretations? It seems the idea that a specialist High Court panel be set up to help weave tikanga into domestic law, is gaining serious interest so as to appoint tikanga experts as lay members of the court - https://thelawassociation.nz/law-commission-publishes-roadmap-for-blending-tikanga-and-state-law/
Thank you again for your valuable time. There are many who would find it more than informing if you did have a discussion with Dr Amokura Kawharu - even if she refused and you could announce you tried and she did decline.
"Are we to now accept that NZ will soon become part of a society based on myths and legends (that conveniently are "expanded" by Māori for legal interpretations?"
Rob, your question encapsulates the absurdity of what is being attempted by supposedly intelligent people. I drew special attention to the Fukuyama quote because it describes the way political institutions and legal systems were established, as knowledge increased. Pre-colonization Māori, being isolated from developments in other parts of the world, fit within Fukuyama's description, "all originally organized into tribes much like those that still exist in Afghanistan, central Iraq, and Papua New Guinea. So were the Chinese, Indians, Arabs, Africans, and virtually all other peoples on earth. They owed primary obligation not to a state but to kinfolk, they settled disputes not through courts but through a system of retributive justice, and they buried their dead on property held collectively by groups of kin."
The point is all peoples started off that way. At any time in history there were some who advanced further than others. 400-300 BC, the Athenians of Greece were more advanced than most if not all other peoples of their times. Think of Euclid (father of geometry) and Archimedes the physicist, of philosophers Plato and Aristotle, and of the political and legal institutions established in Athens. By contrast, England at that time was inhabited by Britons who were essentially illiterate until, in the first century AD the Romans brought the Latin alphabet and a tradition of literacy, and established administrative centers, towns, and colonies across the island.
In early times, there were no scientific explanations for natural phenomena, so supernatural explanations were adopted -- gods were to be found in thunder and lightning, seas, rivers, mountains, the sun and stars, harvests, fertility and so on. In mythology, these gods could be ancestors. For example, the mother of Achilles, hero of the Trojan wars and the central character of Homer's Iliad, was a sea nymph. The Illiad, written 8th or early 7th BC is said to be based on oral tradition.
Your reply to Peter Smith shows you know all this, and much more. You are absolutely correct in saying, "It is now a fact that indigenous rights and the pursuit of Tikanga is hindering economic progress and undermining the interests of the broader population." I have a collection of Ayn Rand and Peter Schwartz essays (1971 and 1998) with the title: Return of the primitive: the anti-industrial revolution, which seems a pretty good description of what is happening in NZ today.
Regarding writing to Dr Amokura Kawharu, I think that ship has sailed because the Study Paper has been completed.
Dear Gary Judd KC re: Dr Amokura Kawharu. Is there a consideration around the idea that Dr Kawharu was instructed to prepare the Study Paper by the prior government administration, and that with your level of skill and knowledge in a private meeting with the good Dr Kawharu (who loves legal debate), you could manage to convince her to retract the Study Paper as the Tikanga perspectives you "educate" her on become clearer, not to mention the future societal issues? - Best for the rest of the weekend & thanks again - Rob
Interesting point of view Peter Smith. Thanks for raising it.
The question raises an important point about the historical and philosophical underpinnings of legal systems. It's also a simplification.
It is true that Christian theology significantly influenced the development of British common law. Concepts of morality, justice, and social order were often derived from Christian teachings. However, it’s essential to note that there was also gradual secularisation over the centuries. The British legal system underwent a process of secularisation, distancing itself from direct religious dictates. The system evolved through case law and precedent, becoming increasingly flexible and adaptable.
There were development of checks and balances, particularly with the rise of parliamentary democracy, further distanced the legal system from ecclesiastical control.
Tikanga Māori, on the other hand, is rooted in a different philosophical and spiritual foundations. Tikanga Māori encompasses a holistic worldview that includes spiritual, natural, and human dimensions. It prioritises the collective well-being of the community and influence of Iwi elders over individual rights. Māori "knowledge" was traditionally passed down orally, emphasising shared cultural memory via embellished stories. While deeply rooted in tradition
It's crucial to avoid oversimplifying the relationship between these systems. While Christian theocracy was influential in shaping British law, the latter has evolved significantly. Tikanga Māori, as an indigenous legal system steps into a, shall be say, distinctive perspective on law, justice, and governance that embraces race-based myths and legends that present many "complexities and flaws" in modern day democratic society.
The ideal of trying to blend Tikanga Māori and State law is commendable, but - (apart from the obvious of relying on oral beliefs in deities and their influence on the natural world, Māori spiritual practices and rituals that are integral to Tikanga, and waiata (songs), haka (dances), and carvings, all directly inspired by pūrākau) - the integrating (blending) of Tikanga Māori principles into State law existing legal frameworks is fraught with more than just challenges.
The two systems are based on fundamentally different worldviews, philosophies, and structures. Western democracies prioritise individual rights and representative government, which conflict with the collective focus of Tikanga Māori. The complexities of modern life, including globalisation and technological advancements, pose significant challenges for applying traditional customary law. There is a risk of tokenism or co-option if Tikanga Māori is not genuinely integrated into the decision-making processes.
The blending is an exercise in futility and has downstream practical adverse consequences for a modern society. Attempts to compromise between the two systems will inevitably lead to a dilution of both. The practical challenges of implementing Tikanga Māori concepts in a large-scale legal system are insurmountable. There is a high risk of misappropriating or commercialising Tikanga Māori for political gain or economic benefit and that is already happening, such as in the recent Mercury Energy "pay-off" to Iwi to obtain RMA consent.
Blending is not a step in addressing historical injustices suffered by Māori. It goes well beyond that and is overreach. Sure its good for those Māori who wish to preserve their culture with Tikanga Māori elements, but as soon as it is adopted into existing State law we will see Tikanga Māori reliance prioritising restorative justice and community healing that does not work. e.g. Gang members attending multi-million dollar funded drug rehab camps where they are concealing also meth labs out the back. How many times do we have to see that the idealism is just being used for advantage.
All of this subject is just because of the UN global movement to recognise and uphold indigenous rights and self-determination under ID & E - an equitable society in other words. Which is fine, but the NZ indigenous scene is taking it to another level. There is intentional expansion of the understandings already given by government as part of seeking an equitable inclusive society. The pursuit of co-governance is apparent and the intention has already been seen in many cases. The door was opened and now it is being used as an alternative device using intentional misunderstandings with counter-arguments such as you raise.
Indigenous "self-determination", while recognising the right of indigenous peoples to cultural, social, economic, and political development, does not necessarily equate to full political independence. Tensions can arise when indigenous rights and "self-determination" claims challenge the territorial integrity or political authority of a State.
In some cases, the recognition of indigenous rights can be seen as giving preferential treatment to a minority group/race, potentially undermining the principle of majority rule, a cornerstone of democracy. Māori are already seeking to undermine constitutional guarantees and anti-discrimination laws.
International law, including human rights treaties are starting to conflict with domestic legal trends. NZ will face challenges in implementing international norms while respecting now Māori Tikanga and its own legal frameworks.
There will clearly be accusations of undermining domestic law, particularly when indigenous rights claims challenge existing property rights, resource management, or criminal justice systems come into play. The pursuit of ID&E ideology risks sacrificing economic stability and societal harmony for a potentially disastrous outcome. New Zealand could face unprecedented challenges if this path is followed. The cost and delays for NZ will become insurmountable. Those who support the new trend in law have it appears a very lacking insight into economic and financial stability factors which more or less are essential for all of society to not just survive in a stable environment but actually ensure all Māori and non-Māori have well-being. Until that fact is recognised (if ever), then NZ will continue to slide down the rankings on international scales from education to GDP productivity - https://www.rnz.co.nz/news/business/520529/worst-since-the-early-90s-hidden-extent-of-downturn
The recognition of indigenous rights is already having a significant economic implication particularly in resources and water. Indigenous land claims and rights to natural resources can conflict with government revenue generation and development plans.
It is now a fact that indigenous rights and the pursuit of Tikanga is hindering economic progress and undermining the interests of the broader population.
The movement is well cemented home in the universities to ensure the next generation are believers. Its termed "social engineering" and you will note all cover the argument for embracing Tikanga but fail to even mention the practical downside and serious challenges that will arise. That theme shows an imbalance in conceptual thinking that has been overcrowded by a certain agenda and bias to adopt the present government idealogy to embrace and blend Tikanga.
Time will tell, so there is no need to continue this conversation. We all sleep in the bed we make, even if the sheets are fitted or the bed is short-sheeted.
You are correct to note the fraugtness. There is also a disparity of ethos between 'social justice' and 'collectivism'. The rule of law is predicated, jurisprudentially, on the rights and obligations of individuals. Not collective identity poltics guilt based on race, colour or sex. Class or category guilt- the Olds, the Kulaks, the bourgesoise, white colonists- is product of immense and serious wrong and injustice. It is a poltical matter not a legal one. Social justicevis a misnomer. This the fallacious issue with the "hate speech" law- a social justice nostrum- as well that the Adern government promoted. I submitted in on this jurisprudential point - that social justice justice collectivists nostrums cannot and do not interface with our legal system. But that seems to be lost on our pantheistic clerisey.
Thank you for this classical and lucid account of the rule of law. What it presently faces is its undermining and annulment by virtue of the "great conspiracy theory" (per Delsol) of the dialectic of the oppressor v oppressed. It scapegoats western white males, colonialists etc When the main bearers of civilized society, indeed our culture, are torn down, undermined with history and tradition, erased/proscribed in the iconoclastic ways as they are by the Marxian dialectic in say the decolonisation doctrine we are left with barbarity , per Delsol. That systemic erasure, the year zero, and its ensuing barbarity is what occurred in Hitler's Germany, Lenin's Soviet Russia-where the legal system took a big hit- and particularly in Mao's Cultural Revolution China. Those presently subject to the dream of the Hegelian bite are oblivious to the warnings.
Another angle aligned with the direction NZ is now taking and recognising your prior Tikanga critique. Only raise this since the Law Commission has been busy advising the present Government to blend Tikanga into Crown law while some sectors of NZ already are doing so - i.e. society can start to change the rule of law.
The rule of law, a cornerstone of democratic societies, is a multifaceted concept that serves as both a shield protecting individual liberties and a sword advancing social justice. Beyond these dual roles, it also acts as a bridge between differing legal systems, fostering a more inclusive and equitable society. This is particularly evident in the complex interplay between Crown law and Tikanga Māori, the customary law of the indigenous Māori people of New Zealand.
Tikanga Māori represents a living, evolving legal system rooted in ancestral wisdom, spiritual beliefs, and communal values. Its integration into the broader legal framework is a testament to the potential of the rule of law to accommodate diverse legal traditions. By recognizing and respecting Tikanga Māori, the Crown acknowledges the importance of Indigenous self-determination and cultural preservation. This blending of legal systems is not without its challenges, requiring careful consideration of principles, values, and processes.
The incorporation of Tikanga Māori into Crown law can be seen as a step towards decolonisation and reconciliation. It offers opportunities for Māori to participate meaningfully in decision-making processes and to have their perspectives and experiences reflected in the law. However, it is essential to avoid tokenism or the superficial incorporation of Māori elements without genuine engagement with Tikanga Māori principles.
The journey towards a truly integrated legal system requires ongoing dialogue, education, and respect for both Crown law and Tikanga Māori. It necessitates a deep understanding of the underlying values and principles of each system, as well as a commitment to finding common ground. While challenges persist, the potential benefits of a legal framework that encompasses both Western and Indigenous legal traditions are significant.
In conclusion, the rule of law serves as a powerful instrument for shaping a just and equitable society. Not only does it protect individual rights and advance social justice, but it also has the capacity to bridge different legal systems. The integration of Tikanga Māori into Crown law is a prime example of this potential, offering opportunities for reconciliation, cultural revitalization, and the creation of a more inclusive legal order.
The challenge you face is to justify "Tikanga Māori represents a living, evolving legal system rooted in ancestral wisdom, spiritual beliefs, and communal values." There may be "ancestral wisdom, spiritual beliefs and communal values" for those who subscribe to them, but there was no legal system prior to the arrival of non-Māori, there is no tikanga legal system now, and the only legal system NZ has and has had is that which came with the ceding of sovereignty and the imposition of British law as provided for in Art 3 of the Treaty.
I explained this at some length in *Tikanga is not law*, https://substack.com/@garyjuddkc/p-135321382. I examined what is necessary for a system to be a legal system, what tikanga is, and demonstrated why tikanga does not satisfy the criteria. It is the reasoning in *Tikanga is not law* that you must demonstrate to be wrong, before you can assert that tikanga is an evolving legal system. I especially commend the Fukuyama quotation to you.
>it also acts as a bridge between differing legal systems, fostering a more inclusive and equitable society.
Society's shifting values are reflected in the people and parties that are elected to parliament. Parliament changes the laws to accommodate new values. The legal system itself does not need to change.
>This is particularly evident in the complex interplay between Crown law and Tikanga Māori, the customary law of the indigenous Māori people of New Zealand.
I've never heard Tikanga laws explained anywhere. What are they specifically? Please explain one law. Are you talking about utu and concepts like that? Tikanga cannot be defined - it is not a legal system. It is wrong to call it a legal system.
>By recognizing and respecting Tikanga Māori, the Crown acknowledges the importance of Indigenous self-determination and cultural preservation. This blending of legal systems is not without its challenges, requiring careful consideration of principles, values, and processes.
The Crown already acknowledges the importance of Maori self-determination and cultural preservation. Maori culture is everywhere in NZ - on radio and tv, etc. Maori are currently free to self-determine as much as they like. But what I think you're really talking about it Maori determining over others - eg co-governance.
>The incorporation of Tikanga Māori into Crown law can be seen as a step towards decolonisation and reconciliation. It offers opportunities for Māori to participate meaningfully in decision-making processes and to have their perspectives and experiences reflected in the law.
Before colonisation Maori tikanga was extremely tribal and included slavery, cannibalism, and massacres. Colonisation ended that. Colonisation made everyone equal under the law. Decolonisation is the attempt to return to inequality - which is effectively apartheid, separatism, and nothing but a race-based power-grab by Maori. It is antithetical to equality. It is offensive to the majority of New Zealanders. Another trouble with tribalism is nepotism which is also unacceptable to NZers.
The treaty was reconciliation. Maori are over-represented in parliament. Maori fully participate in the running of this country. The country is already reconciled.
>offering opportunities for reconciliation, cultural revitalization, and the creation of a more inclusive legal order.
This is plainly untrue. It is not a move towards harmony and inclusivity. It is the opposite - it is some Maori trying to exploit differences.
Since the 1990s the Crown has been giving very generous settlements to Maori but now Maori are more angry and more demanding. What went wrong? The public were very supportive of the settlements but they are definitely not supportive of the current agenda of the Maori Party and the like.
Their resentful agenda was on full display in Debbie Ngarewa-Packer's speech in parliament on 7 August. Her speech was dishonest and insulting and inciting. She is deliberately polarising her base against the rest of NZ (including the many Maori who disagree with her.) She has the same agenda as you but doesn't dress in up in rhetoric like "offering opportunities for reconciliation, cultural revitalization, and the creation of a more inclusive legal order."
At the end of the day NZ will reject the separatism that some Maori are advocating.
Just noticed that my now deleted response was itself somewhat infected with typos! Mea culpa! Take 2 follows:
I certainly wasn’t pointing any sticks at David, Gary. Just making what was intended to be a light hearted observation. I’m forever finding, after on screen writing, that I’ve made an obvious on review error or that spellcheck has corrected my carelessness. I think the problem is that when proofreading our own writings we are inclined to see what we expected to see rather than what we may actually have written. Cheers, Rod
Thank you Garry (KC). I comment as follows with the most sincere humble appreciation for your experience, expertise and qualifications.
It would be interesting to see how such a discussion eventuates with Dr Amokura Kawharu - at com@lawcom.govt.nz - a discussion she is duty bound (as a government agency) to answer if you could spare the time?. I wonder if the response would be as per Peter Smith? That it is a bridge between differing legal systems?
With only my limited legal knowledge based on several years funding High Court multi-party litigation teams, I find it very hard to conceptualise how Tikanga is to be "blended" as I also read more and more law firms attempting to do so - https://www.bellgully.com/insights/tikanga-maori-and-state-law-an-exploration-of-he-poutama/
Why my lack of comprehension? Because this now growing reality seems to neglect the realisation of the downstream practical consequences for New Zealand. I explain below:
Tikanga is deeply rooted in the realm of myth and legend, known collectively as pūrākau.
To truly grasp Tikanga Māori, it is said that it is essential to understand the foundational stories that have shaped Māori worldview and practices for generations.
Pūrākau explains in Māori culture the origins of the world, the relationship between humans and nature, and the roles and responsibilities of individuals within the community. These narratives form the ethical and moral compass that underpins Tikanga.
Myths and legends in Māori culture describe the creation of social hierarchies and kinship systems. Thus apparently we must understand these oral stories that provide insights into the importance of whakapapa (genealogy), whānau (family), and hapū (sub-tribe). They are only oral and what New Zealand Government is now asserting exists after agreeing with Māori researchers who conducted wide discussions with Māori elders and reported solely on the research bases of 'with Māori, for Māori, by Māori' only and solely. That protocol alone I would have thought would not be equitable for a court to make determinations on?
Pūrākau also introduces the concept of atua (deities) and their influence on the natural world. These beliefs shape Māori spiritual practices and rituals, which are integral to Tikanga. Many Tikanga practices, such as waiata (songs), haka (dances), and carvings, are directly inspired by pūrākau. Understanding the stories behind these art forms enriches the appreciation of their cultural significance.
Māori Myths and legends also explain the formation of the land and the creation of marine life. This knowledge informs Māori perspectives on environmental stewardship and resource management, key components of Tikanga.
Also Tikanga Māori is not a static set of rules, but a dynamic and evolving tradition. While pūrākau provide a foundational framework, contemporary Māori continue to adapt and interpret these stories as they wish and may prefer to "self-determine" under UNDRIP so as to address the challenges and opportunities of the modern world. That flexibility provides a great negotiation tool for Māori !
In essence, pūrākau are the seeds from which Tikanga grows. By delving into the rich tapestry of Māori myths and legends, we are supposed to gain a deeper appreciation for the complexities and nuances of Tikanga Māori that the Crown now wishes to blend with Crown Law - https://thelawassociation.nz/law-commission-publishes-roadmap-for-blending-tikanga-and-state-law/
Are we to now accept that NZ will soon become part of a society based on myths and legends (that conveniently are "expanded" by Māori for legal interpretations? It seems the idea that a specialist High Court panel be set up to help weave tikanga into domestic law, is gaining serious interest so as to appoint tikanga experts as lay members of the court - https://thelawassociation.nz/law-commission-publishes-roadmap-for-blending-tikanga-and-state-law/
Thank you again for your valuable time. There are many who would find it more than informing if you did have a discussion with Dr Amokura Kawharu - even if she refused and you could announce you tried and she did decline.
"Are we to now accept that NZ will soon become part of a society based on myths and legends (that conveniently are "expanded" by Māori for legal interpretations?"
Rob, your question encapsulates the absurdity of what is being attempted by supposedly intelligent people. I drew special attention to the Fukuyama quote because it describes the way political institutions and legal systems were established, as knowledge increased. Pre-colonization Māori, being isolated from developments in other parts of the world, fit within Fukuyama's description, "all originally organized into tribes much like those that still exist in Afghanistan, central Iraq, and Papua New Guinea. So were the Chinese, Indians, Arabs, Africans, and virtually all other peoples on earth. They owed primary obligation not to a state but to kinfolk, they settled disputes not through courts but through a system of retributive justice, and they buried their dead on property held collectively by groups of kin."
The point is all peoples started off that way. At any time in history there were some who advanced further than others. 400-300 BC, the Athenians of Greece were more advanced than most if not all other peoples of their times. Think of Euclid (father of geometry) and Archimedes the physicist, of philosophers Plato and Aristotle, and of the political and legal institutions established in Athens. By contrast, England at that time was inhabited by Britons who were essentially illiterate until, in the first century AD the Romans brought the Latin alphabet and a tradition of literacy, and established administrative centers, towns, and colonies across the island.
In early times, there were no scientific explanations for natural phenomena, so supernatural explanations were adopted -- gods were to be found in thunder and lightning, seas, rivers, mountains, the sun and stars, harvests, fertility and so on. In mythology, these gods could be ancestors. For example, the mother of Achilles, hero of the Trojan wars and the central character of Homer's Iliad, was a sea nymph. The Illiad, written 8th or early 7th BC is said to be based on oral tradition.
Your reply to Peter Smith shows you know all this, and much more. You are absolutely correct in saying, "It is now a fact that indigenous rights and the pursuit of Tikanga is hindering economic progress and undermining the interests of the broader population." I have a collection of Ayn Rand and Peter Schwartz essays (1971 and 1998) with the title: Return of the primitive: the anti-industrial revolution, which seems a pretty good description of what is happening in NZ today.
Regarding writing to Dr Amokura Kawharu, I think that ship has sailed because the Study Paper has been completed.
Dear Gary Judd KC re: Dr Amokura Kawharu. Is there a consideration around the idea that Dr Kawharu was instructed to prepare the Study Paper by the prior government administration, and that with your level of skill and knowledge in a private meeting with the good Dr Kawharu (who loves legal debate), you could manage to convince her to retract the Study Paper as the Tikanga perspectives you "educate" her on become clearer, not to mention the future societal issues? - Best for the rest of the weekend & thanks again - Rob
How is that different from introducing Christian theocracy to our legal system?
Interesting point of view Peter Smith. Thanks for raising it.
The question raises an important point about the historical and philosophical underpinnings of legal systems. It's also a simplification.
It is true that Christian theology significantly influenced the development of British common law. Concepts of morality, justice, and social order were often derived from Christian teachings. However, it’s essential to note that there was also gradual secularisation over the centuries. The British legal system underwent a process of secularisation, distancing itself from direct religious dictates. The system evolved through case law and precedent, becoming increasingly flexible and adaptable.
There were development of checks and balances, particularly with the rise of parliamentary democracy, further distanced the legal system from ecclesiastical control.
Tikanga Māori, on the other hand, is rooted in a different philosophical and spiritual foundations. Tikanga Māori encompasses a holistic worldview that includes spiritual, natural, and human dimensions. It prioritises the collective well-being of the community and influence of Iwi elders over individual rights. Māori "knowledge" was traditionally passed down orally, emphasising shared cultural memory via embellished stories. While deeply rooted in tradition
It's crucial to avoid oversimplifying the relationship between these systems. While Christian theocracy was influential in shaping British law, the latter has evolved significantly. Tikanga Māori, as an indigenous legal system steps into a, shall be say, distinctive perspective on law, justice, and governance that embraces race-based myths and legends that present many "complexities and flaws" in modern day democratic society.
The ideal of trying to blend Tikanga Māori and State law is commendable, but - (apart from the obvious of relying on oral beliefs in deities and their influence on the natural world, Māori spiritual practices and rituals that are integral to Tikanga, and waiata (songs), haka (dances), and carvings, all directly inspired by pūrākau) - the integrating (blending) of Tikanga Māori principles into State law existing legal frameworks is fraught with more than just challenges.
The two systems are based on fundamentally different worldviews, philosophies, and structures. Western democracies prioritise individual rights and representative government, which conflict with the collective focus of Tikanga Māori. The complexities of modern life, including globalisation and technological advancements, pose significant challenges for applying traditional customary law. There is a risk of tokenism or co-option if Tikanga Māori is not genuinely integrated into the decision-making processes.
The blending is an exercise in futility and has downstream practical adverse consequences for a modern society. Attempts to compromise between the two systems will inevitably lead to a dilution of both. The practical challenges of implementing Tikanga Māori concepts in a large-scale legal system are insurmountable. There is a high risk of misappropriating or commercialising Tikanga Māori for political gain or economic benefit and that is already happening, such as in the recent Mercury Energy "pay-off" to Iwi to obtain RMA consent.
Blending is not a step in addressing historical injustices suffered by Māori. It goes well beyond that and is overreach. Sure its good for those Māori who wish to preserve their culture with Tikanga Māori elements, but as soon as it is adopted into existing State law we will see Tikanga Māori reliance prioritising restorative justice and community healing that does not work. e.g. Gang members attending multi-million dollar funded drug rehab camps where they are concealing also meth labs out the back. How many times do we have to see that the idealism is just being used for advantage.
All of this subject is just because of the UN global movement to recognise and uphold indigenous rights and self-determination under ID & E - an equitable society in other words. Which is fine, but the NZ indigenous scene is taking it to another level. There is intentional expansion of the understandings already given by government as part of seeking an equitable inclusive society. The pursuit of co-governance is apparent and the intention has already been seen in many cases. The door was opened and now it is being used as an alternative device using intentional misunderstandings with counter-arguments such as you raise.
e.g. The political scene in NZ is already mixing sovereignty with the interpretation of self-determination contained in UNDRIP that Sir John Key ratified. The principle of state sovereignty is fundamental to international law, granting states exclusive jurisdiction over their territories. Māori are now seeking direct confrontation with that fundamental rule and seeking courts to sanction it - https://www.nzherald.co.nz/nz/high-court-rejects-iwis-request-to-intervene-in-governments-changes-to-customary-rights/R4V7PE3EI5DAPCH3LFHZB25QUM/
Indigenous "self-determination", while recognising the right of indigenous peoples to cultural, social, economic, and political development, does not necessarily equate to full political independence. Tensions can arise when indigenous rights and "self-determination" claims challenge the territorial integrity or political authority of a State.
In some cases, the recognition of indigenous rights can be seen as giving preferential treatment to a minority group/race, potentially undermining the principle of majority rule, a cornerstone of democracy. Māori are already seeking to undermine constitutional guarantees and anti-discrimination laws.
International law, including human rights treaties are starting to conflict with domestic legal trends. NZ will face challenges in implementing international norms while respecting now Māori Tikanga and its own legal frameworks.
There will clearly be accusations of undermining domestic law, particularly when indigenous rights claims challenge existing property rights, resource management, or criminal justice systems come into play. The pursuit of ID&E ideology risks sacrificing economic stability and societal harmony for a potentially disastrous outcome. New Zealand could face unprecedented challenges if this path is followed. The cost and delays for NZ will become insurmountable. Those who support the new trend in law have it appears a very lacking insight into economic and financial stability factors which more or less are essential for all of society to not just survive in a stable environment but actually ensure all Māori and non-Māori have well-being. Until that fact is recognised (if ever), then NZ will continue to slide down the rankings on international scales from education to GDP productivity - https://www.rnz.co.nz/news/business/520529/worst-since-the-early-90s-hidden-extent-of-downturn
The recognition of indigenous rights is already having a significant economic implication particularly in resources and water. Indigenous land claims and rights to natural resources can conflict with government revenue generation and development plans.
It is now a fact that indigenous rights and the pursuit of Tikanga is hindering economic progress and undermining the interests of the broader population.
The movement is well cemented home in the universities to ensure the next generation are believers. Its termed "social engineering" and you will note all cover the argument for embracing Tikanga but fail to even mention the practical downside and serious challenges that will arise. That theme shows an imbalance in conceptual thinking that has been overcrowded by a certain agenda and bias to adopt the present government idealogy to embrace and blend Tikanga.
Time will tell, so there is no need to continue this conversation. We all sleep in the bed we make, even if the sheets are fitted or the bed is short-sheeted.
https://www.auckland.ac.nz/assets/law/Documents/2021/our-research/Te-tai-haruru-journal/Vol5/Te%20Tai%20Haruru%20Journal%205%20(2017)%2025%20Coates.pdf
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/journals-and-magazines/social-policy-journal/spj29/29-pages-60-77.pdf
https://www.auckland.ac.nz/assets/law/Documents/centres/indigenouscentre/Final%20Nin%20Tomas%20Memorial%20Lecture%205%20December%202020.pdf
You are correct to note the fraugtness. There is also a disparity of ethos between 'social justice' and 'collectivism'. The rule of law is predicated, jurisprudentially, on the rights and obligations of individuals. Not collective identity poltics guilt based on race, colour or sex. Class or category guilt- the Olds, the Kulaks, the bourgesoise, white colonists- is product of immense and serious wrong and injustice. It is a poltical matter not a legal one. Social justicevis a misnomer. This the fallacious issue with the "hate speech" law- a social justice nostrum- as well that the Adern government promoted. I submitted in on this jurisprudential point - that social justice justice collectivists nostrums cannot and do not interface with our legal system. But that seems to be lost on our pantheistic clerisey.
Thank you for this classical and lucid account of the rule of law. What it presently faces is its undermining and annulment by virtue of the "great conspiracy theory" (per Delsol) of the dialectic of the oppressor v oppressed. It scapegoats western white males, colonialists etc When the main bearers of civilized society, indeed our culture, are torn down, undermined with history and tradition, erased/proscribed in the iconoclastic ways as they are by the Marxian dialectic in say the decolonisation doctrine we are left with barbarity , per Delsol. That systemic erasure, the year zero, and its ensuing barbarity is what occurred in Hitler's Germany, Lenin's Soviet Russia-where the legal system took a big hit- and particularly in Mao's Cultural Revolution China. Those presently subject to the dream of the Hegelian bite are oblivious to the warnings.
Another angle aligned with the direction NZ is now taking and recognising your prior Tikanga critique. Only raise this since the Law Commission has been busy advising the present Government to blend Tikanga into Crown law while some sectors of NZ already are doing so - i.e. society can start to change the rule of law.
The rule of law, a cornerstone of democratic societies, is a multifaceted concept that serves as both a shield protecting individual liberties and a sword advancing social justice. Beyond these dual roles, it also acts as a bridge between differing legal systems, fostering a more inclusive and equitable society. This is particularly evident in the complex interplay between Crown law and Tikanga Māori, the customary law of the indigenous Māori people of New Zealand.
Tikanga Māori represents a living, evolving legal system rooted in ancestral wisdom, spiritual beliefs, and communal values. Its integration into the broader legal framework is a testament to the potential of the rule of law to accommodate diverse legal traditions. By recognizing and respecting Tikanga Māori, the Crown acknowledges the importance of Indigenous self-determination and cultural preservation. This blending of legal systems is not without its challenges, requiring careful consideration of principles, values, and processes.
The incorporation of Tikanga Māori into Crown law can be seen as a step towards decolonisation and reconciliation. It offers opportunities for Māori to participate meaningfully in decision-making processes and to have their perspectives and experiences reflected in the law. However, it is essential to avoid tokenism or the superficial incorporation of Māori elements without genuine engagement with Tikanga Māori principles.
The journey towards a truly integrated legal system requires ongoing dialogue, education, and respect for both Crown law and Tikanga Māori. It necessitates a deep understanding of the underlying values and principles of each system, as well as a commitment to finding common ground. While challenges persist, the potential benefits of a legal framework that encompasses both Western and Indigenous legal traditions are significant.
In conclusion, the rule of law serves as a powerful instrument for shaping a just and equitable society. Not only does it protect individual rights and advance social justice, but it also has the capacity to bridge different legal systems. The integration of Tikanga Māori into Crown law is a prime example of this potential, offering opportunities for reconciliation, cultural revitalization, and the creation of a more inclusive legal order.
Rob, thanks for engaging on this important issue.
The challenge you face is to justify "Tikanga Māori represents a living, evolving legal system rooted in ancestral wisdom, spiritual beliefs, and communal values." There may be "ancestral wisdom, spiritual beliefs and communal values" for those who subscribe to them, but there was no legal system prior to the arrival of non-Māori, there is no tikanga legal system now, and the only legal system NZ has and has had is that which came with the ceding of sovereignty and the imposition of British law as provided for in Art 3 of the Treaty.
I explained this at some length in *Tikanga is not law*, https://substack.com/@garyjuddkc/p-135321382. I examined what is necessary for a system to be a legal system, what tikanga is, and demonstrated why tikanga does not satisfy the criteria. It is the reasoning in *Tikanga is not law* that you must demonstrate to be wrong, before you can assert that tikanga is an evolving legal system. I especially commend the Fukuyama quotation to you.
>it also acts as a bridge between differing legal systems, fostering a more inclusive and equitable society.
Society's shifting values are reflected in the people and parties that are elected to parliament. Parliament changes the laws to accommodate new values. The legal system itself does not need to change.
>This is particularly evident in the complex interplay between Crown law and Tikanga Māori, the customary law of the indigenous Māori people of New Zealand.
I've never heard Tikanga laws explained anywhere. What are they specifically? Please explain one law. Are you talking about utu and concepts like that? Tikanga cannot be defined - it is not a legal system. It is wrong to call it a legal system.
>By recognizing and respecting Tikanga Māori, the Crown acknowledges the importance of Indigenous self-determination and cultural preservation. This blending of legal systems is not without its challenges, requiring careful consideration of principles, values, and processes.
The Crown already acknowledges the importance of Maori self-determination and cultural preservation. Maori culture is everywhere in NZ - on radio and tv, etc. Maori are currently free to self-determine as much as they like. But what I think you're really talking about it Maori determining over others - eg co-governance.
>The incorporation of Tikanga Māori into Crown law can be seen as a step towards decolonisation and reconciliation. It offers opportunities for Māori to participate meaningfully in decision-making processes and to have their perspectives and experiences reflected in the law.
Before colonisation Maori tikanga was extremely tribal and included slavery, cannibalism, and massacres. Colonisation ended that. Colonisation made everyone equal under the law. Decolonisation is the attempt to return to inequality - which is effectively apartheid, separatism, and nothing but a race-based power-grab by Maori. It is antithetical to equality. It is offensive to the majority of New Zealanders. Another trouble with tribalism is nepotism which is also unacceptable to NZers.
The treaty was reconciliation. Maori are over-represented in parliament. Maori fully participate in the running of this country. The country is already reconciled.
>offering opportunities for reconciliation, cultural revitalization, and the creation of a more inclusive legal order.
This is plainly untrue. It is not a move towards harmony and inclusivity. It is the opposite - it is some Maori trying to exploit differences.
Since the 1990s the Crown has been giving very generous settlements to Maori but now Maori are more angry and more demanding. What went wrong? The public were very supportive of the settlements but they are definitely not supportive of the current agenda of the Maori Party and the like.
Their resentful agenda was on full display in Debbie Ngarewa-Packer's speech in parliament on 7 August. Her speech was dishonest and insulting and inciting. She is deliberately polarising her base against the rest of NZ (including the many Maori who disagree with her.) She has the same agenda as you but doesn't dress in up in rhetoric like "offering opportunities for reconciliation, cultural revitalization, and the creation of a more inclusive legal order."
At the end of the day NZ will reject the separatism that some Maori are advocating.
Thanks Peter Smith - please read my reply to Garry Judd KC as to my response to your good explanation.
None of us is immune from typo error, or proofreading slips, on screen. Puts me in mind of the Bible and mote casting!
David was right to point out the typo and I'm grateful to him because I was enabled to correct it. I like my stuff to be accurate.
Just noticed that my now deleted response was itself somewhat infected with typos! Mea culpa! Take 2 follows:
I certainly wasn’t pointing any sticks at David, Gary. Just making what was intended to be a light hearted observation. I’m forever finding, after on screen writing, that I’ve made an obvious on review error or that spellcheck has corrected my carelessness. I think the problem is that when proofreading our own writings we are inclined to see what we expected to see rather than what we may actually have written. Cheers, Rod
Declaration of Independence was 1776. I assume 1766 is a typo.
Thanks, David. Quite correct. I'll fix it.