Between 1975 and 1990 the Treaty of Waitangi 1840, once
regarded as a "simple
nullity", came to be "constitutionalised",1
acquiring the status of the basic founding document of the nation. A "constitutional
revolution" occurrcd, a "paradigm shift" within the dominant
commonsense of practitioners in the juridical-political system which shattered
the tradition-bound conception of Maori rights and Pakeha duties.2
Similar change in the status or indigenous peoples was evident in Canada
during 1982-1990 and is now evident in Australia.3
Altered official discourses have yet to change material conditions
and halt the impending ethnocide of indigenous First Nation peoples.4
Social indicator data on education, employment, housing and the justice
system illustrate the structural realities of Maori disadvantage. In New
Zealand, where 9.5% of the population self-identify as Maori and 3.6% as
Pacific Islanders:
* Maori are 3.5 - 4.4 times less likely than Pakeha to attend
a univcrsity.5
* One fifth of the Maori working age population lost their
jobs in the two years from March 1987 to March 1989 - a loss four times
higher than that for "non-Polynesians".6
* Only 44% of Maori owned their own homes inl986, compared
with a national figure of 75%.7
Maori retain only 5% of freehold land in New Zealand. Moana Jackson estimates
that since 1840 Maori dispossession has been "legalised" by over
100 pieces of legislation which breach the Treaty.8
* Maori offenders are over-represented in the criminal courts
and jails. Of non-traffic adult offenders sentenced to imprisonment in 1991,
Maori accounted for 48%, Europeans 43%, Pacific Islanders 7%.9
Among young people convicted under the Children, Young Persons and Their
Families Act 1989, Maori account for 53.4%, Europeans 32.2% and Islanders
6.9%, despite the Act's whanau-oriented family group conference and diversion
based model.10
While Labour's social democratic constitutional agenda ostensibly
tried to advantage Maori, it was Maori who bore the brunt of Labour's antidemoc~atic
monetarism, the hegemonic "revolution" of 1984-1990 which
abruptly jolted New Zealand from dependent agricultural Fordism to Post-Fordism.11
Before being ousted from office for a decade Labour set
up the Waitangi Tribunal, under the Treaty of Waitangi Act 1975, to promulgate
principles for interpreting the Treaty and for identifying Crown activities
inconsistent with those principles. Despite its compromised beginnings,
the constitutional revolution began with the creation of the Tribunal.12
In 1985 the Fourth Labour Government (1984-90) attempted unsuccessfully
to incolporate the Treaty into an entrenched Bill of Rights.13
More successful was the gradual 1984-90 promulgation of the principles of
the Treaty emerging from the reports of the Waitangi Tribunal.14
These principles have been reaffirmed and complemented in decisions of appellate
courts,15 reinforced by directives
issued by the executive,16 and validated
by incorporating recognition of tikanga Maori and the principles of the
Treaty into legislation.17 For
the first time since 1840, a set of principles by which disputes about Pakeha
duties and Maori rights were to be honourably settled became part of official
discourse.
Pakeha analysts, surprisingly unanimous on the radical or "revolutionary"
character of this feature of the Fourth Labour Government's term of office,
characterise it, for example, as "the most important of the changes
wrought by the Labour government",18
as the "Maori Constitutional Revolution'',19
and as an "intellectual revolution".20
Some intellectuals, both Maori and Pakeha - such as Ranginui
Walker and Bill Renwick - even described these developments as "post-colonial",21
while hardly claiming that assimilationist colonialism had gone away. Other
writers, though avoiding the term "post-colonial", have foreseen
and
described in analogous terms the unfolding emphasis on Maori
rights and their place in the evolution of an ideology of biculluralism.22
Colin James speculates that the revolution leading to recognition of the
Treaty may, in ideological terms, be the most important act of independence
and affirmation of nationhood since New Zealand's reluctant acceptance of
legal independence from Westminster in 1947. He argues that this "decolonising"
process required the "fashioning of an identity and a wholeness out
of a conflict no one else can resolve".23
If not "post-colonial", the constitutional revolution perhaps
represented the first "post-assimilationist" step towards a post-colonial
settlement.24 In this post-assimilationist
vision, Pakeha duties and rights and Maori rights and duties were couched
in terms of a "re discovered" bicultural partnership under the
Treaty "Made in New Zealand/Aotearoa", not "Made in England".
So what was and is the significance - if any - of the changing
constitutional rhetoric? Is it benign or malign? Conflicting theories and
assumptions underlie the commentaries of academics, practitioners, and political
analysts and activists on the constitutional revolution. This article examines
five relatively distinct "paradigms"25
which emerge out of a review of the literature, distinguished by identifying
implicit and explicit perspectives on: (I) the nature of the "ideological
work" done by the Waitangi Tribunal and the principles of the Treaty
in bringing about the "paradigm shift"; and (2) the scope of rights'
strategies - the politics of rights26
- for bringing about ideological change within the liberal democratic state.
The label the "orthodox legal paradigm" is self-inflicted; the
others identified here are the Prendergast Paradigm, Te Tino Rangatiratanga
Paradigm, the Marxist Paradigm, and the Post-Assimilationist Paradigm.
In 1877 a Maori tribe brought an action against the Crown to
reclaim unused land they had earlier donated to the Church of England as
the site for a School which was never built. They relied on Treaty rights.
Prendergast CJ stated that Treaty rights such as aboriginal title were irrelevant
unless incorporated expressly into municipal statute. In a judgment redolent
with the then-contemporary tenets of Victorian scientific race theory, Prendergast
CJ found that the Treaty of Waitangi was: "[a] simple nullity. No body
politic existed capable of making cession of sovereignty, nor could the
thing itself exist".27
Contemporary writers from the orthodox legal paradigm say that
he got the law "wrong",28
although for the purpose of consolidating settler hegemony it would be an
understatement to say that it was a useful judgment. From 1877 to the 1980's,
despite its "wrongness" in international law and British colonial
practice,29 it remained the paradigm
for understanding the status of the Treaty - it was the "correct"
statement of the Treaty's position in New Zealand law, in the textbooks
and law journals,30 and in the hegemonic
discourse until the current "constitutional revolution".
One recent, oft-cited piece by an Auckland practitioner, Guy
Chapman, challenges the new "revolutionary" commonsense and may
represent a significant body of seldom-articulated opinion.31
Chapman supports his critical position on the post-revolutionary law partly
by arguing the continuing correctness of Prendergast's view of the Treaty.
He writes that Prendergast's statement "has stood the test of time
in its clarity of exposition and basic soundness".32
Informing Chapman's position appears to be a single static standard of justice,
based on equal treatment of all, no matter how unequal they may be.
This notion of equality is often used to oppose affirmative action of any
sort. It usually emanates from majoritarian, neo conservative politics and
appeals to populist egalitarianism. Chapman challenges the contemporary
resuscitation of the Treaty because it has endowed it with a "political
afterlife" which gives Maori a "never ending, exclusive cosy relationship
with the Government to which others are not admitted". He condemns
"the legally sanctioned preferment of groups" which he argues
is inimical to "a modern, pluralist, multiracial democracy" which
"will quite simply come apart at the seams if such were to be its prescription".33
In this paradigm "multi-culturalism" is confined to promoting
"cultural diversity in the private domain coupled with equality of
opportunity in the public sector".34
Condemning the activist judiciary for usurping the position
of the legislature by elevating the Treaty to the status of higher law,
Chapman says that "Parliament has never given direct legislative force
to the Treaty"; there has been "no vote for a judicially created
Bill of Rights designed to advantage one section of society..."; and
"the principles so-called are judically invented" and have come
through the " back door".35
Another Auckland lawyer, David Garrett, shares Chapman's perception
that the elaboration of 'principles" of the Treaty by the courts is
anti-democratic, or at variance with parliamentary supremacy and the normal
process whereby the common law evolves:
Parliament has not so much given the task of enunciating
the meaning of the supposed principles of the Treaty to the courts; rather
successive governments have allowed the judges, through deliberately
or accidentally vague statutory references, to interpret what should be
clear statements of rights. These are statements which should he made in
pariiament by eiected representabves facing public scrutiny.36
Garrett's critique has an authoritative, Diceyan "Made
in England" ring to it. Like Chapman's, however, it is flawed by contradiction
and anachronism. The Treaty of Waitangi Act 1975 mandated the quest for
the "principles" which judges have "found", and it was
the elected Parliament which passed the numerous Acts which incorporated
recognition of Treaty "principles" throughout 1984-1991.
Chapman describes the Treaty principles as fixed in time "like
it or not" and denies that they bespeak "rights" or "fundamental
rights"37 since at the time
the Treaty was framed and signed "modern" concepts of human/fundamental
rights were "largely or wholly, unconceived". This is surely an
anchronistic argument, given that the Treaty of 1840
followed the American Bill of Rights (appended to the
1776 Constitution
in 1787) and the
French Declaration of the Rights of Man and the Citizen 1789,
both of which not only employed the symbolism of such
rights with vigour but also remain part of the living law of their respective
jurisdictions and provide models for modern human rights codes .38
Mark Tushnet analyses from an American perspective the key
problems of the originalist, textualist or even neutral principles approach
to constitutional interpretation implicit in the Prendergast paradigm. Such
interpretation, he says, assumes static, shared systems of meaning such
that the meanings of rules or words used in the past can be retrieved without
distortion.39 Strangely for a common
lawyer, Chapman attacks as "mythical" the depiction of the Treaty
as a "living instrument" and the resulting revolution of the principles
in the "Spirit of the Treaty": he singles out as "crypto-legal
myths" the principles of "partnership" and "the fiduciary
duty".40 It is no coincidence
that these are the Iynch pins for constructing a bicultural future in the
dialectical relationship between affinity and difference in which both Maori
and Pakeha have parity of respect.
Chapman astutely recognises the revolutionary scope of the
"principles of the Treaty", and the process of constitutionalising
Maori rights, for the honouring of prospective claims through the recognition
of historical obligations. The material and possibly ideological outcomes
of such a "revolutionary" approach are anathema to those whose
liberal-conservative Prendergast paradigm is based on nineteenth century
liberal assumptions about the virtues of utilitarianism, majoritarianism,
individualism, private property and the illimitable sovereign. One can also
trace within this ideological framework social Darwinist justifications
for selectively applying equality dimensions of the "rule of law",
illustrated by Prendergast CJ's use of the "act of state" doctrine
to shield executive, legislative and administrative tyranny from judicial
scrutiny, for which he was duly chastised by the Privy Council.41
This paradigm delegitimates the constitutional revolution by selectively
using arguments from the orthodox legal paradigm, as McHugh points out.42
The Prendergast paradigm offers no support for biculturalism,
that is, for a politics of affinity and difference based on the mutual understanding,
respect and power-sharing or reparative justice implied in the "constitutional
revolution". It echoes the nineteenth century liberal conservatism
which legitimated the benignly meant but monocultural, Christianising and
assimilationist policies which are partially responsible for the ethnocide
of indigenous First Nations peoples throughout the Empire.
Moana Jackson (Ngati Kahungunu, Ngati Porou) and my colleague
Annie Mikaere (Ngati Raukawa ki te Tonga), the chief analysts and activists
writing from within this paradigm, are both tangata whenua, people of the
land. They base their position on this historical ground. Their assettion
of Maori rights and Pakeha duties is derived from the concept of Rangatiratanga
as understood in Maori, recognition of which was promised in the Maori version
of the Treaty. In contemporary Pakeha analytical discourse Rangatiratanga
implies self-determination, including recognition of the Maori parallel
juridical-spiritual-political order embodied in the sovereign power of the
iwi. Iwi as tribal nations were promised control over taonga (treasures)
and iwi resources, to ensure justice for iwi members and "to make the
world live again through Maori institutions defined and controlled by Maori"
as covenanted by the Treaty.43
The assertion that the Treaty was a "treaty of cession"
by Maori of their sovereignty to the British Crown, resulting in a single
grundnorm for
testing the validity of law, is rejected as a denial of Rangatiratanga promised
in Article 2 of the Maori text of the Treaty.44
Hence "the Treaty guarantees Maori law itself since it is both the
source of rangatiratanga and the product of its exercise".45
The use of the word kawanatanga, "government over their land",
in the first Article means that authority to exercise government over settlers
on Maori land was granted to the Crown: "for the Maori text to have
done more would have been contrary to Maori law, and the rangatira [chiefs]
would have been unable to sign".46
On this interpretation of Pakeha duties and Maori rights, the
"constitutional revolution" of 1984-1990 is a distortion and a
Pakeha re-definition of Rangatiratanga, the effect of which has been to
"freeze Maori cultural and political expression within parameters acceptable
to the state".47 Legal pluralism
cannot accommodate Rangatiratanga, whether by recognising aspects of tikanga
Maori in the procedural and substantive law, or by incorporating the principles
of the Treaty into state law and practice, or by adapting Pakeha political
institutions. Such kowhaiwhai (cosmetic) bicultural innovations mask the
imposed nature of the cc,mmon law and constitute a denial of the rights
under Treaty. The Treaty is declarative of Maori rights, not constitutive
of them, since they are not considered to be dependent upon or subordinate
to the legal or political sovereignty of any other nation 48
But, even though:
Pakeha judges, and institutions such as the waitangi Tribunal,
no longer dismiss the concept of rangatiratanga, they simply redenne it
as a limited property right... Pakeha academics frame the whole discussion
of Maori rights in a bi-cultural jurisprudence of the wairua that is consistent
with the common law. Those who pursue such views are neo-colonialists who
neither understand nor respect Maori DhilosoDhv or culture.49
Reviewing Kawharu's Waitangi: Maori and Pakeha Perspectives
of the Treaty, an edited collection of essays on the Treaty, Mikaere
comments that the word Rangatiratanga and other Maori concepts have been
"bandied about... almost as though they were qualified to understand
them" by Pakeha judges and other contributors.50
She is no less damning than Jackson about the Tribunal:
What then of the waitangi Tribunal, widely perceived as being
essentially Maori... at the very least a bicuitural body... The waitangi
Tribunal is not a Maori inslitution...[it wasl established hy a Pakeha dominated
parliament... [and] exists at the
whim of a Pakeha electorate... Any recommendations it makes must aiways
be acceptable to non-Maori voters.51
Rejecting the imposed regime of the settler state and critiquing
the constitutional revolution, the state, and the politics of social change
through enhancing legal rights, the Rangatira paradigm is an expression
of Maori nationalism and the quest for cultural survival. Hauraki Greenland
suggests that the key themes in this ideology revolve around the land itself
and the concent of land: the ideology contrasts Maori and Pakeha values
and,especially, divergent Pakeha and Maori philosophical perspectives on
land. For Maori, land represents turangawaewae, the symbolic, spiritual
and material place upon which they stand and assert their rights under the
Treaty. By contrast, Pakeha dishonesty over land dealings and the tyranny
of the state led to the ongoing loss of land rights and the raupatu (wrongful
confiscation of land in the 1860's). Maori nationalism as an ideology emphasises
attributes of the Pakeha conception of land which are anathema to the Maori
way such as acceptance of the commodification and environmental exploitation
of land. The assertion of Maori peoplehood through their Treaty-guaranteed
kaitiakitanga (guardianship) of the land and other treasures, as Maori understand
and value these, is thus the key discourse in the construction of Maori
identity and resistance. The politics of difference, rather than affinity,
dictate tactics and strategies and explain the rejection of kowhaiwhai biculturalism.52
The Rangatiratanga paradigm resembles strands of the Marxist
paradigm and the related Critical Legal Studies approach in that it repudiates
claims that progress has resulted from the "Maori Constitutional Revolution".
But the historical, political and ideological roots of the Rangatiratanga
movement are altogether diferent from those of Marxism or neo-Marxism. In-
my view the conflating of the two paradigms (and consequent characterisation
of the tangata whenua as fellow travellers of these valuable though Eurocentric
paradigms) by some commentators53
demeans the legitimacy of the Maori nationalist position.
Those conceptualising the "revolutionary" function
of the Waitangi Tribunal and the "principles of the Treaty" through
this paradigm fully understand the discursive potential of the official
discourse emerging from the Tribunal, and the significant role of the principles
in this process. They see the degree to which a discourse of interests is
being transformed into a discourse of bicultural rights by the re-defined
concept of Rangatiratanga, and they distance themselves from pragmatic Maori
leaders who perceive the discourse of bicultural rights as at least offering
some purchase on power. Te Tino Rangatiratanga paradigm-based analysts and
activists argue that the process "inhibits the development of strategies"54
to achieve self determination and that their separate and abstentionist
oppositional posture will enhance Maori identity with its symbolism and
message.55
Dr Jane Kelsey of Auckland Law Faculty is the analyst and
activist whose articles and books reflect assumptions and models within
the Marxist paradigm.56 This corpus
of work represents the most sustained and comprehensive analysis of
the political economy of the New Zealand juridical-political apparatus 1984-1993
produced to date. Its omnibus coverage is unmatched
by work in any other paradigm. Kelsey's thorough and readable work coherently
presents a total analysis of the issues of the period, in a way rarely if
ever achieved by non-Marxist legal-historiographic scholars. The clarity
we gain from the overview is essential to understanding events of the period
as a whole.
Since the 1970'S, neo-Marxist
analysis in many different forms, such as Marxist-Leninism, Gramscianism
and Critical Legal Studies (hereafter CLS), including some feminist legal
theory, has precipitated an irreversible paradigm shift in liberal, positivist,
pluralist scholarship. This shift is especially evident in legal theory
and in socio-legal and criminological writing. The CLS movement, with which
Dr Kelsey's work is associated by some commentators, is as much a child
as a progenitor of this shift.
Kelsey's theoretical framework, while having Gramscian nuances,
appears to be primarily based on an instrumentalist view of the nature and
function of law. Hunt crystallises the instrumentalist view:
Law is the instrument of a ruling class which functions directly
at the behest and control of dominant economic and political interests as
an instrument of oppression and domination. It is all the more successful
because of the way it is able to disseminate "false consciousness",
for example, spreading the illusion of neutrality and impartiality. Liberals
and radicals connive consciously and unconsciously, because in proclaiming
the possibility of ~using law" they bind the subordinate classes more
closely to capitalist values and exacerbate the ~feeling of powerlessness".
In general the use of law has the effect of increasing the domination of
law over peoples' lives.57
From the instrumentalist viewpoint the "constitutional
revolution" has been myth-making - a "passive revolution"58
or no revolution at all, leaving the dominant "common sense" unchanged.
The jurisdictional expansion, recommendations and findings of the Tribunal,
the evolution of the "principles of the Treaty" in the jurisprudence
coming from the Court of Appeal, and changes in government policy and practice
associated with changes in media perspectives and public perceptions of
Maori/Pakeha relationships, all tend to be analysed as "rhetoric".
Behind this rhetoric "Maori remained in essentially the same position
they had been in since 1840" and "arguably they were worse off".59
An assumption of Marxist/conflict theory is that classes, genders
and races with unequal power in a capitalist, patriarchal settler state
will be forever locked into super-ordinate/sub-ordinate positions unless
capitalism, patriarchy and imperialism are overthrown by armed or ideological
revolutions. Reformism is at best a palliative and at worst likely to perpetuate
the "false consciousness" of the oppressed which manifests itself
in their "passive consent" to a coercive social order. Hence,
for instrumentalist analysts, the response of the state, the law and of
ficialdom to challenges to the status quo is "inevitable";
social democratic reformism such as the "constitutional revolution"
must "inevitably" lose out when the state must choose between
the demands of capital and the rights of Maori:
This was not through some grand conspiracy although there were
elements of that, but because the base line of the legal and political structures
within which the battle was fought was absolute Crown sovereignty and the
protection of a capitalist economy.60
Pragmatic, rather than principled, application of the new "principles
of the Treaty" jurisprudence, by judges who were merely responding
to the climate of the mid-1980's which demanded "flexibility"
and sympathy to Maori claims, has won merely "pyrrhic" courtroom
"victories". Any sensitivity has been dictated by the internationalisation
of concern over indigenous peoples' rights, reflected and reinforced by
the re-discovery of the doctrine of common law aboriginal title. Fears of
accusations of institutionalised racism, of further entrenching Maori hostility,
and of the judgments of their peers in the law who acknowledged Maori grievances
have all played a part in bringing about the constitutional revolution.61
Addressing a process whereby events have enabled people to
shed their "false consciousness", Kelsey concludes that by the
end of the 1980's the "allegedly neutral" courts and allegedly
"pro-Maori" Waitangi Tribunal are seen "for what they undoubtedly
always were - arms of the state".62
The process and outcomes of the "constitutional revolution"
are conceptualised as a process of "legitimation", meaning a process
whereby "consent" is purchased from the oppressed by means essentially
inimical to their interests. Instrumentalist theory influenced by Marxist-Leninism
distinguishes reformism from revolution. Reformists serve the system by
propping up structures "whose legitimacy depends on the oppression
of others" and which will simply "not hand over power".63
In Lenin's work, particular vitriol was poured on the "compromiser
and social democrat" identified as more of a handicap to the revolution
than the class enemy himself. Maori (co-optees),64
lawyers and academics ("organic intellectuals of capitalism whichever
side they are on")65 are targets
of criticism on the same sort of grounds.
The state's intolerance of threats to its dominant position
is instanced by the precarious tenure of semi-autonomous state agencies
like the Tribunal which dare to challenge the state. Evidence adduced includes
the consistent pattern of neglect of, and cutbacks to, the Tribunal's infrastructure
and inaction on the Tribunal' s recommendations by both Labour and National
Governments.66 Labour's 1989 rewrite
of the Principles of the Treaty for Crown Action to re-assert Crown
sovereignty over Te Tino Rangatiratanga, and the Court of Appeal's assertion
that it, not the Tribunal, had authority to determine Principles, are also
submitted as such evidence.67
As a consequence of such state retaliation the Tribunal's reports
can be no more than a resource to be used by the state "to legitimate
a fundamental denial of tino rangatiratanga in the name of honouring the
Treaty... The Waitangi Tribunal had become a non-threatening but symbolically
significant legitimating agent of the state".68
The intention of Kelsey's book Rolling Back the State is
to enhance the "understanding of the structural nature of the crisis
affecting each [Maori and Pakeha]", making it possible "to identify
points at which contradictions can be exploited and alliances can be formed".
But Kelsey claims that "the traditional institutions of parliamentary
democracy and the courts, and strategies of corporatism and welfarism, are
not the way to achieve this".69
Kelsey offers little to help "identify contradictions"
as such, and, once parliamentary democracy and the courts are abandoned
and the traditional forms of social democratic citizen/state settlements
such as corporatism and the welfare state are rejected even as interim or
defensive positions, few avenues of public activity in the framework of
current politics are left. While I acknowledge that instrumentalist theory
has had enormous diagnostic value, and that dialectical struggle must occur
over the ideological framework and institutional forms and politics needed
to address the current fiscal and ideological crises enmeshing New Zealand/Aotearoa,
it must also be said that instrumentalist theory tends to disempower those
who would attempt to provide practical answers to Lenin's question "what
is to be done?"
Other analysts working within the Marxist paradigm who have
also sought to identify contradictions in the dominant liberal ideology
have not rejected the courts and law as resources to be exploited in the
interests of revolutionary change. Marxist historian E P Thompson, for example,
writes that "if we assume law is no more than a mystifying and pompous
way in which class power is registered, we need not waste our labour studying
its history and forms".70 He
comments further:
If the law is evidently partial and unjust, then it will mask
nothing, legitimise nothing, and contribute nothing to any class's hegemony.
The essential pre condition for the effectiveness of law, in its function
as ideology, is that it shall display an independence from g~oss manipulation
and shall seem to be just. It cannot seem to be so without upholding its
own logic and criteria of equity, indeed on occasion, by actually being
just.71
Thompson has provocatively described the rule of law as "an
unqualified human good" to curb the tyranny of the state. According
to Hirst, Thompson was reacting against Marxists in his "own camp",
"the libertarian anticommunist Left" who conceived law as purely
repressive.72
Franz Neumann much earlier identified the dialectic between
law as repressive and law as beneficial within liberal ideology:
The general character of the law and its presumptions in favour
of the right of the individual and against the state play three roles in
modern society: a moral [role], in that they guarantee a minimum of freedom,
equality and security; an economic [role], in that they make possible a
competitive contractual society; [and] a political [role], in that in varying
degrees they hide the locus of power.73
Kelsey gives no sense of the dialectical nature of politics
or law. Her Marxist-Leninist version of the Marxist paradigm emphasises
the repressive character of the "constitutional revolution", leaving
its beneficial potential unexplored: the "constitutional revolution"
is produced and reproduced through a "bicultural" jurisprudence
which hides the locus of power by purporting to "accommodate
the needs of Maori culture" within a "culturally sensitive"
common law system which still denies Rangatiratanga. The Pakeha social order
after the "constitutional revolution" is at best:
no different from any other lime since 1840 unless it can he
forced to address the central issue of economic and political power. In
large part the success of resistance will depend on whether Pakeha can be
convinced that the successful re-assertion of Te Tino Ranagatiratanga...
over Aotearoa is in their interests too.74
No indication is given of how Pakeha might be "convinced"
or of how alliances might be formed. It is a pity that Gramscian theory
- a more empowering version of the Marxist paradigm - is merely nuanced
as a framework in Kelsey's work, since it resonates today with a far broader
constituency of critical, change-oriented analysts and activists than does
instrumentalism.
Ironically, two other commentators on the intellectual and
ideological pedigree of critiques of the "constitutiona] Revolution"
- both unsympathetic to Kelsey's approach - have chosen to associate her
work with Gramsci's version of neo-Marxism or with CLS.75
But both associations are misleading. To start with, the label CLS has been
over-used, and in McHugh's case has pejorative connotations. These commentators
have conflated too many critical "radical" voices under the CLS
and Gramscian labels for the labels to mean much.
The American CLS "movement" which emerged during
the 1980's is the dominant faction, largely non-Marxist in orientation.76
Pre-dating the emergence of CLS from the mid-1970's onwards, a significant
Anglo American Marxist, neo-Marxist77
and anarchist78 legal scholarship
began to evolve, which now overlaps with and may even self-identify with
CLS for convenience. Kelsey's instrumentalist, Marxist-Leninist (rather
than Gramscian, Foucaldian, post-structuralist or post-modernist) work fits
much more comfortably into this Marxist tradition.
What distinctive characteristics of Gramsci's Marxism make
it important to use the Gramscian label with care and not conflate it with
other forms of Marxist theory? Gramsci took the subject of ideological struggle
seriously. He did not see its outcomes as exclusively determined by political
and economic interests acting at the behest of capital. Gramscian theory
addresses whether the crisis of hegemony is primarily economic or ideological.
Whereas Marx and Lenin emphasised the base (that is, economic relations,
understanding crises as primarily economic), Gramscian theory does not conceive
of the hegemonic ideology as a coherent, economically-determined world view.
Nor did Gramsci conceive of counter-hegemonic ideology as a "Trojan
horse" of the mind, constructed in some other terrain by the "Party"
elite to do battle with the bourgeoisie and capture the state by armed revolution.
Gramsci's theory allows for the influence of ideas on history
and for the impact of free will; intellectuals are recognised as working
both for and against the dominant bloc. The "masses" are seen,
not as the "lumpen proletariat", but as endowed with intellectual
qualities which are their source of power to create change.79
Gramsci viewed the hegemonic ideology as the site of counter-hegemonic
struggle, not simply as coerced nor as evidence of "false consciousness":
but as exercised as much through popular ~consensus" in
civil society... especiaDy in advanced capitalist societies where education,
the media, the law, mass culture, etc, take on a new role. To the extent
that "superstructural" phenomena such as beliefs, values, cultural
traditions and myths function on a mass level to perpetuate the existing
order, it follows that the struggle for liberation must stress the task
of creating a "counter-hegemonic" world view..., a new integrated
culture. Gramsci insisled that socialist revolution should he conceived
of as an organic process, not an event (or series of events), and
that consciousness transformation is an inseparable part of structural
change, indeed that it is impossible to conceptualize them as distinct phenomena.80
Maureen Cain, a prominent neo-Marxist sociologist of law, highlights
significant contradictions in Gramsci's theory but stresses that it is not
instrumentalist: monocausal, undialectical and unilinear explanations are
not part of Gramscian analysis. From within this version of the paradigm
"the revolutionary task in civil society is therefore a struggle for
control of the law, that is a struggle to achieve authoritative norrn-creating
positions in a gocietv based on active rather than passive consent".81
Alan Hunt, another prominent neo-Marxist legal theorist, has
developed the most contemporary application of the relationship between
social movements, rights and counter-hegemonic strategies. Ideological change
is presented as the transformation of discourses such as the changed official
discourse represented in the "constitutional revolution". Hunt
observes that "new discourses are not invented but rather transform
already existing elements and it is generally within this context that 'new'
or original elements are added and, conversely, old elements are excised".82
Employing a Gramscian analysis to assess the impact of rights-based counter-hegemonic
strategies such as the "constitutional revolution", he cautions:
it is not a matter of securing some immediate interest... a
key feature of any such assessment revolves around their capacity to put
in place a new or transformed discourse of rights which goes to the heart
of the way in which the substantive issues are conceived, expressed, argued
about and struggled over.83
Within the instrumentalist paradigm employed in Kelsey's work,
the evaluation of the significance of the "constitutional revolution"
discounts its counter-hegemonic potential and highlights only its repressive
or palliative function. Kelsey claims that "the passive revolution
of the 1980s may have provided temporary respite but the prognosis for the
l990s [is] full scale crisis in the dual state".84
The cryptic reference to the "crisis in the dual state" may perhaps
signal that "non-bourgeois uses of bourgeois legality" are possible
counter-hegemonic strategies.85
Lenin identified the dual state as a striking feature of the revolution.
He said that "side by side with the provisional government of
the bourgeoisie there has developed another government, weak and embryonic
as yet, but undoubtedly and actually existing and growing government".86
Trotsky also saw "dual" power as a distinct condition
of social crisis not peculiar to the Russian revolution.87
Dual power or the dual state is understood in revolutionary Marxism as a
temporary transitional phase "interlocking" the bourgeois state
with the revolutionary state. It was assumed that such a condition could
not last long "since two powers cannot exist in a state" 88
De Sousa Santos, an internationally known neo-Marxist Portuguese
scholar, offers some analysis of "dual power" in an ethnographic
study of the Portuguese "revolution" and self-government established
by squatters in Rio.89 He suggests
that the concept of dual power might be used "in a weakened but nonetheless
valuable form in non-revolutionary situations embodying complementary rather
than confrontational powers... to address intra-class conflict at the surface
level".90 The dual state/dual
power concept is useful when it is accompanied by recognition of contradictory
state forms and class interests, compromises of power and the making of
concessions, the plurality of centres of political power, and legitimacy
from class power not conferred by the central government, all of which are
compatible with Kelsey's concluding visioning about "what is to be
done" in Rolling Back the State. In the end, though, this strategy
requires that some instrumentalist assumptions are challenged.
Marxist-Leninist political strategies were predicated on a
nineteenth century European notion of revolution through the self-emancipation
of a homogeneous working class. Gramscian theory grappled with fascist populism
in the inter-war period. Both, though Eurocentric and metropolitan, have
considerable diagnostic utility, but only when employed with great care.
For visioning a post-colonial practice of counter-hegemonic struggle in
a post-Fordist era, a more empowering paradigm is needed. The Marxist paradigm,
like the Prendergast and Rangatiratanga paradigms, clearly acknowledges
the "ideological work" represented in the "constitutional
revolution", but, whereas in Marxist instrumentalist theory the "constitutional
revolution" legitimates the pernicious status quo, in the Rangatiratanga
paradigm and the Prendergast paradigm the "constitutional revolution"
has had a pernicious counter-hegemonic impact - pernicious for very different
reasons, of course.
The exponent of the Orthodox Legal Paradigm (hereafter OLP)
as a distinctive approach is Paul McHugh, a Pakeha New Zealander educated
in New Zealand, Canada and England and author of a substantial corpus
of work.91 McHugh's work contributed
the historical and comparative doctrinal perspectives which enabled tribunals
and courts in New Zealand to view aboriginal title as part of New Zealand's
common law. Thus, aboriginal title became a professionally and intellectually
respectable doctrine. McHugh's work of the last decade now informs the courts,
the Tribunal, government and the academy, not least because its style of
nreCpnt:ltion and form loc~tes the Dath of change within the well mapped
terrain of the common law
McHugh explains the workings of the OLP as follows. It consists
of:
(I) the definition of a Treaty claim or right and (2) the translation
of that articulated Treaty right into the vocabulary of the legal paradigm.
Step (I) is an exercise which legal method leaves to the plaintiff... The
lawyer must perform (2), inforrning the claimant of the way the law responds
to his (sic) articulated claim... In the context of Treaty claims
the process of definition is clearly a task which only Maori can perform,
whilst lawyers must tackle the second step of translation. The translation
of a Treaty right is not the definition of a right. There may be a wide
gulf between the definition and the translation of a particular Treaty right.
Revelation of the gulf and provision of strategies for narrowing it is one
of the most valuable tasks performed by orthodox legal methodology be it
in legal articles or court judgements.92
The orthodoxy of the method legitimates its discourse in a
way that 'politically correct" but "technically wrong" work
will not do. Hence discourse emanating from the OLP cannot easily be dismissed
as politics masquerading as law. The identification of the translation of
Maori-defined claims into the Aboriginal rights strategy has indeed been
a valuable service.
The OLP's evaluation of the so-called constitutional "revolution"
reflects its emphasis on the gradualist approach to understanding law and
change and the translator role of lawyers. McHugh states:
the encounter with Treaty issues has required New Zealand lawyers
to reassess and reorient the traditional positivist methodology. The developments
I have described have all occurred in the context of orthodox legal doctrine
and methodology. There has not been a revolution in traditional legal outlook
so much as an organic and very gradual reorientation.93
Analysts and activists critiquing the OLP from within the Prendergast
(with the exception of Chapman), Rangatiratanga, Marxist, and post assimilationist
paradigms seldom, however, engage with it on the ground of doctrinal strategy.
Critics of the OLP have focussed on what the political meaning and
material impact of changed discourses such as legal doctrine might be. McHugh
devotes considerable energy to critiquing his critics in what he over-generalises
as the "so-called CLS movement" (including the Rangatiratanga
and Marxist paradigms) and in the Prendergast paradigm,94
but he tends not to theorise about why changes such as the "constitutional
revolution" have occurred and what their political meaning might
be, concentrating instead on how they can and do occur within legal
doctrine. He regards the "reorientation" of the common law achieved
through orthodox methods as axiomatically a "good thing": after
all, the "wrong approach to international law, contractual principle
and British colonial practice",95
which constituted the dominant paradigm for almost a hundred years of New
Zealand legal practice, has been corrected.
Even within the self-circumscribed parameters of the OLP, however,
it is hard to see the constitutional developments of 1984-90 as "gradual"
(most change having taken place in the decade of the 1980's after a hiatus
of almost 100 years) or as "organic". The volksgeist did
not call for change. The changes were not popular and were indeed handicapped
by fear of a backlash. The OLP as a method does not need to contextualise
these constitutional developments, but McHugh needs to when engaging his
critics on their ground.
The political meaning of doctrinal change needs to be located
somehow within a complex process of structuration. This process involved
the interplay of traditional and radical Maori leadership, activists in
the legal profession and the academy from all paradigms, and institutions
such as the media, an activist judiciary and the programmes and policies
of biculturally committed segments within successive Labour Governments.
McHugh's lack of contextuality makes his work vulnerable to critics concerned
about the socio-political "meaning" of doctrinal legal change.
Missing the point that his critics have been asking whether
such "Treaty justice" is desirable, not whether it is possible
through the OLP, McHugh criticises them for their dismissiveness, which
hardly deserves description as a critique, for it absolves its proponents
from any form of intellectual engagement with the paradigm except through
what is usually superficial and selective scholarship based on a weak to
non existent historical method tailored to reveal the conspiratorial character
of Pakeha law and governance.96
McHugh complains that:
a]ny description, then of change which signifies greater receptivity
to the Treaty within the orthodox legal paradigm is treated with scorn.
Those who inhabit that paradigm are the "organic intellectuals of Pakeha
capital", or depicted as deluded, starry-eyed or short-sighted proponents
of a glorious, justice-delivering common law.97
As my earlier description and analysis of other paradigms attempts
to show, these critical voices, with the exception of the Marxist paradigm,
do indeed detect greater receptivity - possibly even a "revolution"
- in the paradigm used in the dominant, Pakeha, legal system. They argue,
however, about the value of the change.
The OLP method seems compelled to de-emphasise as atypical
and politicised significant aspects of legal evolution which have changed
the status of the Treaty, if these are not outcomes of orthodox common law
evolution. To be internally consistent with its own method, a purist version
of the OLP like Austinian positivism and Langdellian orthodoxy98
permits only rather linear explanations of change.99
Judges, after all, only "find" the law which originates as "the
command of the sovereign backed by threats". Thus, sets of interpretative
principles which bespeak the wairua (spirit) of the Treaty are problematic
because they have been promulgated both by activist appellate courts
operating in an almost Americanised fashion and by the Tribunal, a mere
commission of inquiry. Both are rather unorthodox modes of adapting Anglo-New
Zealand common law.
Perhaps McHugh does not treat the Tribunal and the triangulated
political dynamic surrounding it, the courts and the executive, as of central
importance for this reason? Yet he tantalisingly describes the nature of
his major work, The Maori Magna Carta, by stating that "ultimately
the topic of this book is the legal framework for the exercise of power
within the New Zealand state''.100
Unfortunately, given the encyclopaedic depth and breadth of McHugh's scholarship,
he does not attempt to contextualise the legal framework by articulating
the nature of either "power" or the "state". An analysis
of 'power" would have to deal with the socio-political meaning of doctrinal
legal change and in such a debate McHugh and his critics in other paradigms
would not be talking past each other.
Nigel Jamieson, reviewing this 392-page volume, highlights
the modest place occupied by the Tribunal in McHugh's analysis:
Would it detract from the legal status of the Waitangi Tribunal
to recount something of its history in terms of party politics? Thirty four
pages on the Treaty of Waitangi Act 1975 subsume all government activity
as the work of the Crown - a surprisingly strict legal account for one who
opposes conventional legal theory on partisan grounds.101
One presumes "conventional legal theory" here means
Prendergast jurisprudence?
McHugh concludes about the Tribunal that "as an aboriginal
claims forum it is certainly unique in the Australasian and North American
experience", that it had achieved considerable mana among Maori, and
status and profile among Pakeha, through its eminently reasonable approach,
the practical application of principles, shunning of extremism, and avoidance
of a strictly reparative approach, focussing on needs rather than on desserts.102
McHugh considers neither arguments about power made in the
1960's by "radical" poverty lawyers,103
nor arguments made in the 1980's by feminist, CLS, First Nations/Indigenous/
Black scholars, that the lawyer/translator frequently if not invariably
employs a disabling interpretive monopoly reflecting the fetishism of rights
in liberal legal ideology.104 McHugh
unquestioningly accepts as "given" the validity of the process
he describes. Ironically, his own intelligent and thorough, though brief,
description of the Tribunal's way of working illustrates how this "unique"
body has deviated procedurally and methodologically from the orthodox forensic
procedures of courts and tribunals.105
Without an analysis of power or the state, the Treaty tends
to be reified. It becomes the agent of change, propelled by the inexorable
logic of the common law. For example, as the encounter between explorer
and indigenous people wrought irreversible change, so "the Treaty encounter
has required New Zealand lawyers to re-assess and reorient positivist methodology''.106
McHugh eschews attempts to explain why actors or agencies of the state permit
change or paradigm shifts. He states simply that "the advances in legal
scholarship on the Treaty have been underpinned by an unwillingness to regard
law as a discrete intellectual system removed from the mainstream of other
thought and the circumstances of New Zealand society".107
How does this fit with his earlier defence of the OLP and his repudiation
of an American Realist or CLS approach, since the latter par excellence
examine law in the mainstream of other thought and the circumstances
of society? By way of an answer within the parameters of the OLP he states:
The movement away from the Wi Parata mentality by the
legal community of this country was accomplished by two methods. First,
orthodox case analysis exposed the internal contradictions of the Wi Parata
approach and its incompatibility with other cases from Anglo-American
jurisdictions. Second, an approach examined here rejected late nineteenth
century attitudinizing about Maori rights. Instead lawyers have tried to
capture or at least to comprehend the intellectual milieu within which British
colonial administrators confronted with questions of tribal rights had operated.
Lawyers have thus been exposed to a form of intellectual history which challenges
dogged positivism.108
McHugh seems to be saying that lawyers and legal academics
working within an orthodox paradigm are nevertheless the agents of change,
somehow motivated by a new rationality based on new knowledge and new methods.
Such staunch advocacy for the flexibility of the late twentieth century
common law and, implicitly, its inherent capacity to do justice for Maori
smacks of the "myth of rights''.109
This is hardly a case of "rights without illusions''.110
Most analysts and activists who have promoted and supported
the "constitutional revolution" appear to be committed to a post-assimilationist
immediate future and the possibility of a post-colonial future in the long
term. One presumes that the choice of path to realise this vision is predicated
on the assumption that the politics of the twenty-first century will consist
of contest and settlement within the dialectic of affinities and difference.111
There may be recognition that outcomes will be transitory and thus continually
under review; that power requires equalising, and that representation and
participation in the affairs of the state require voice and choice; and
that multidimensional antagonisms on the axes of race, gender, class and
region require multidimensional, multicultural and bicultural institutional
vehicles and processes to achieve settlements. Hence the interest in institutional
re-design, biculturalism and electoral reform, at least since 1985.
The decolonising of assimilationist culture will be slow and
difficult as difference is interlocked with affinities and the past with
the future.112 James argues that
the acceptance of the Treaty is the most important act of independence and
affirmation of nationhood since the reluctant acceptance of legal independence
in 1947 when New Zealand recognized the Staute of Westminster of
1932. The new constitution unlike Canada's patriated Constitution of 1982
was made more by accident than design. Nonetheless the now accepted post-revolutionary
rhetoric of a bicultural partnership requires the "fashioning of an
identity and a wholeness out of a conflict no one else can resolve''.113
James does not assume that the process of "decolonising" will
always be progressive. Any counter-hegemonic struggle is shaped by advances
and retreats, changes of pace on the shared and hence contested terrain
of the dominant ideology. James warns that "there are now no comfortable
colonial myths to retreat to", and that "whether they like it
or not - and many do not like it - all European New Zealanders now know
they live inescapably alongside a South Pacific race and they are inescapably
part-defined by that.114
The Prendergast paradigm alone has a concrete vision of the
future and the means by which settlements will be achieved. This vision
consists of the present with a gesture in the direction of cosmetic multiculturalism,
without the Tribunal and without an activist judiciary of the variety currently
on the bench. The OLP suggests Treaty justice but "justice" to
be done by predominantly monocultural means, namely, the common law. The
Ranagatiratanga paradigm envisages a splitting of the grundnorm emphasising
difference rather than affinity. The post-colonial vision embryonically
found in the post-assimilationist paradigm explicitly envisages a bicultural
future achieved by bicultural means.
A consciousness has evolved in which the nature of identity
of all citizens is contested, Maori self-confidence has been significantly
increased and re inforced, official discourse on the Treaty has been radically
altered, the history of Pakeha/Maori relations has been re-written, and
the Treaty has been constitutionalised. Alongside such developments the
momentum for a "counter revolutionary" backlash115
is building within the hegemonic ideology of the post-Fordist market state,
the material circumstances of Maori are largely unchanged and conditions
for the rest are worsening. As Kelsey concludes in Rolling Back the State,
now is the time for cross cultural alliance building. In my view, such
alliance building and the new politics to be created cannot afford to forego
the political resources that social rights, parliamentary democracy and
citizenship still offer. The "constitutional revolution" has been
a necessary but not sufficient pre condition for the realisation of a post-colonial
Aotearoa/ New Zealand.