Debate in recent weeks over the role of tikanga in law has given rise to many questions. To the lay mind, the merging of tikanga and Western law would seem, self-evidently, problematic. If the law is not predictable, written down, precisely defined, and consistently applied (over time) is it still law? Or is it something else? In other words, how can something mystical, evolving, fluid, and largely subjective, be a foundation of a workable legal system?
One explanation resides in the domain of knowing. How do we know things sufficiently well to claim them to be defensibly true? The answer lies, at least in part, in the difference between epistemology and ontology, and in the relation of these to each other.
Epistemology and ontology ask related questions, but address these differently. Epistemology is, in part, about "what". Ontology is, in part, about "why". Epistemology is about digging deep, pulling ideas apart, making connections, gathering data, and making predictions. Ontology is about the primary assumptions we make at the outset. Ontology determines which facts we put on the table, epistemology is about what we do with those facts.
The critical ontological question here is "What is law?" The law professors concerned have failed to address this basic question. Had they done so they would have encountered the inevitable tension between law and tikanga ... which is maybe why they did not do this.
New Zealand, and the wider West, is in an existential tangle because we are not attending sufficiently to the ultimate questions, to which, if correctly addressed, agendas cannot generally (or easily) be attached ... replacing these with subordinate questions, to which agendas can be attached with abandon.
The biggest ontological question of all is ... "What is the true nature of man?" If you answer this question correctly, then a host of other questions automatically become redundant.
We would know what happens when some work and some do not, when we apportion differential rights on the basis of race, or religion or gender, when morality is negotiable, when we seek to make everyone equal, when nothing is deemed to be true, when fathers are absent, when we think ourselves wiser than those who have come before, when we empty our prisons, when people are deprived of speech, when boundaries are no longer enforced ... and, no less, when the law becomes negotiable.
When the law becomes negotiable, it is no longer law.
And a final word, to paraphrase the Apostle Paul in Romans Chapter 1... "Professing wisdom we will have become fools".
Caleb Anderson, a graduate history, economics, psychotherapy and theology, has been an educator for over thirty years, twenty as a school principal.
5 comments:
Tikunga can't merge with western law. Radicals seek to replace it and nz will become similar to a corrupt african state where they have similar tribal systems. It will be a complete disaster.
Does our judiciary, especially at the higher levels, want a well defined law? I doubt they do. They want the freedom to enforce their own thoughts and prejudices, free from the confines of parliament.
Sadly, our various parliaments are not showing any inclination to rein them in. In which case, do we need them? Save the wasted time and money, just get rid of it and hand it over to our esteemed judges to do as they wish. At least then they would lose the cover of pretense to abide by the rules. Plus we could then openly push back.
An intellectually well interrogated comment, Caleb.
My much simpler and admittedly more cynical belief as to why this novel concept is being introduced is because there’s a buck in it.
Not unlike matauranga and te ao Maori, the more mystical, obscure, and less precise it is - all the better for ensuring the need for some self-proclaimed ‘expert’ to dispense why it’s applicable and an appropriate consideration – all, naturally, dispensed at someone else’s expense.
It is not a unique concept, for in earlier times there were the tohanga, who took advantage of their brethren but now, nearly two centuries on, tikanga has its sights set squarely on the interloper and, more especially, now with Treaty settlement obligations looking very much more like “ramping up”, rather than what we all thought (and were told) was to be “down.”
With the world enraptured by ‘woke’, the Peter Ellis case was a perfect Trojan Horse, engineered by our judiciary for a ‘benign’ introduction of tikanga. With our Courts now showing further signs of activism, there certainly seems no better time to falsely legitimise tikanga’s introduction by railroading it through as a mandatory subject for those studying law.
Here’s hoping, that assisted by comments like yours, the court of public opinion (via everyday commonsense) will reject this illegitimate, imprecise concept, and that the truly sterling efforts of the likes of Gary Judd KC, will ultimately prevail.
Looks to me we are exchanging the rule of law for rule by unelected, unaccountable black robes with lifetime appointments.
We need a total clean out of the judiciary and legal academics in order to replace judicial activists who interpret the law according to their own social and political opinions with legal positivist who interpret the law according to law and precedent alone.
The only universally accepted tikanga in pre-European Māori tribal society was Te Rsu o Te Patu (the Law of the Club) aka ‘might makes right.’
The right to self-defence does not a legal system make.
The law we have today is the product of a few hundred years of refinement, but still it can be challenged and found to be wanting. What chance is there if it is merged with tikanga, which is not written down, past judgements are not recorded and can vary from tribe to tribe, year to year and perhaps who has the greater influence on those who make the decisions.
Imagine being in dispute with someone who built you a shoddy house and tikanga will decide the outcome, if the builder is a bro'-in-law of one of the "judges"
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