Frame, Dr Alex --- "A few simple points about Customary Law and our Legal System" [2011] NZYbkNZJur 5; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 20

Last Updated: 25 April 2015

A FEW SIMPLE POINTS ABOUT CUSTOMARY LAW AND OUR LEGAL SYSTEM

DR ALEX FRAME

The Tūhonohono gathering, held at Hopuhopu on the great awa Waikato of such importance to the Kīngitanga and the Tainui tribes, brought together many knowledgeable participants to consider its central theme of customary law. It may be of some small use, therefore, if at the outset I try to discuss a few simple points about the place of customary law in our legal system, such as it is at the present time. Some of the points are dealt with more fully in the Introduction to Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law, a draft of which was made available to participants and which, it is anticipated, will be published formally soon after this record of the Symposium proceedings.

i. THREE “ULTIMATE LEGAL PRINCIPLES”

It was our world-famous jurist Sir John Salmond who observed in his classic work on Jurisprudence that:¹

... there must be found in every legal system certain ultimate principles, from which all others are derived, but which are themselves self-existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their authority.

Although there is nothing pre-ordained about this, our New Zealand legal system, as currently understood, would seem to require the tabulation of three such “ultimate legal principles”:²

(1) Acts of Parliament in proper form are a source of law;

1 Sir John Salmond Jurisprudence (7th ed, Sweet and Maxwell, London, 1924) at 169–170.

Although the work was first published in 1902, the 7th edition was the last published under Salmond’s personal control before his death in the same year and is for that reason perhaps the best expression of that author’s mature and considered thought. For further discussion, and particularly on Salmond’s anticipation of Hans Kelsen’s later concept of the “grundnorm”, see Alex Frame Salmond: Southern Jurist (Victoria University Press, Wellington, 1995) at

65-67 and footnote 58.

2 I have elsewhere raised a question whether a time may come when it will be impossible to describe the functioning of the New Zealand legal order without adding a further “ultimate legal principle” concerning the Treaty of Waitangi. See Grey and Iwikau: A Journey into Custom (Victoria University Press, Wellington, 2002) at 69.

(2) the common/customary law as declared by the Courts is a source of law;

(3) in the event of conflict between an Act of Parliament and common/

customary law, the Act is recognised as prevailing.

It is the second principle which provides an indisputable point of entry for Māori customary law to our legal system. Observers might be forgiven for wondering why the guarantees in the Second Article of the Treaty of Waitangi are not a prior and preferable alternative point of entry, and may be puzzled to learn that, so long as the 1941 decision of the Privy Council in Te Heuheu’s case is considered as correctly stating the law, our courts will not directly enforce the terms of the Treaty in the absence of statutory direction. In those circumstances, the domestic legal effect of the Treaty is subsumed under the first ultimate legal principle.³

ii. THE COMMON/CUSTOMARY LAW IS FOUND AND

DECLARED BY THE COURTS

It is sometimes forgotten that there are only two kinds of law known to legal systems described significantly as “common law systems”. We may rely on Sir John Salmond again for a clear statement of the position:

It was long the received theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common, or customary law. ... Lex et consuetudo Angliae was the familiar title of our legal system. The common law and the common custom of the realm were synonymous expressions.⁴

The duty of our Judges to discover and declare our common/customary law is explicitly recognised in the oath of office taken by them in which they undertake to: “well and truly serve Her Majesty according to law ... [and to] do right to all manner of people after the laws and usages of New Zealand”.⁵

The importance and indigeneity of New Zealand common law has been further emphasised recently by both Parliament and the Courts. In 2003 Parliament specifically recognised and decreed that New Zealand’s final court of appeal

3 Hoani Te Heuheu Tukino v The Aotea District Maori Land Board [1941] NZLR 590; [1941] AC 308 (PC). For an extended discussion of Te Heuheu’s case and an argument that it should not continue to be regarded as correctly stating New Zealand law, and that the Treaty should be accorded direct legal enforceability in our courts, see Alex Frame “Hoani Te Heuheu’s Case in London 1940-41: An Explosive Story” (2006) 22 New Zealand Universities Law Review 148.

4 Sir John Salmond, Jurisprudence, above n 1, 208.

5 Oaths and Declarations Act 1957, section 18. Emphasis added.

would, in its work of discovering and declaring the common/customary law of New Zealand, consult “New Zealand conditions, history and traditions”. Section 3 of the Supreme Court Act 2003 declares the purpose of the Act to be:

(a) to establish within New Zealand a new court of final appeal comprising

New Zealand judges –

(i) to recognise that New Zealand is an independent nation with its own history and traditions; and

(ii) to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions... [Emphasis added.]

That point was further emphasised by the Chief Justice, Dame Sian Elias in Attorney-General v Ngati Apa, more popularly known as the “Foreshore and Seabed case”:⁶

But from the beginning the common law of New Zealand as applied in the Courts differed from the common law of England because it reflected local circumstances (p.652, para.17)

Any prerogative of the Crown as to property in foreshore or seabed as a matter of English common law in 1840 cannot apply in New Zealand if displaced by local circumstances. Maori custom and usage recognising property in foreshore and seabed lands displaces any English Crown Prerogative and is effective as a matter of New Zealand law unless such property interests have been lawfully extinguished. The existence and extent of any such customary property interest is determined by application of tikanga. (p.660, para 49)

iii. THERE ARE FOUR REQUIREMENTS FOR CUSTOMARY LAW TO BE ACCEPTED AND DECLARED BY THE COURTS

Sir John Salmond once more provides the assistance needed to identify the four tests which must be satisfied for custom to operate as a source of law for our courts.

(1) “[A] custom must be reasonable”;

(2) “[A] custom must not be contrary to an Act of Parliament”;

6 Attorney-General v Ngati Apa [2003] 3 NZLR 577. This was not a new approach. A well- known example, nearly a century earlier, is provided by Chief Justice Stout in Baldick and Others v Jackson (1910) 30 NZLR, 343.

(3) The custom “must have been observed as of right. A merely voluntary practice, not conceived as based on any rule of right or obligation, does not amount to a legal custom and has no legal operation”;

(4) “[C]ustom, to have the force of law, must be immemorial ... custom was immemorial when its origin was so ancient that the beginning of it was beyond human memory...”.⁷

If more ancient authority be required for the tests, resort may be made to

the pithy statement, still in Law French, from the Case of Tanistry in 1608:⁸

Et issint briefement, custome est un reasonable act, iterated, multiplied & continued per le people, de temps dont memory ne court. (Translation: In brief, custom is a reasonable rule, followed consistently and continuously by the people from time immemorial.)

It will be seen that these tests preserve both the supremacy of Parliament as recognised in the third ultimate legal principle listed above, and, through the requirement of “reasonableness”, the moral integrity of the legal system as a whole. I should perhaps, however, say a little about the requirements of reasonableness and “immemoriality”.

First as to “reasonableness”. As Fritz Kern pointed out in his masterly study

of conceptions of law in the Middle Ages:⁹

... long-usage does not prove a practice to be rightful. On the contrary. “A hundred years of wrong make not one hour of right,” and Eike of Repgow in the Sachsenspiegel, for example, emphasised that slavery, which originated in force and unjust power, and was a custom so ancient that “it is now held for law,” was only an “unlawful custom”. The existence of an unlawful or “evil” custom for so long a time shows that usage or age cannot make or reveal law.

The “good old law” clung to so tenaciously by our forbears had to be both old and good to be law, and it is this second test which has been entrusted to the judges in the form of the modern requirement of “reasonableness”.

7 The above paragraph is a digest of Sir John Salmond’s exposition at pages 217-220 of his Jurisprudence (7th ed, 1924). For a fuller account of the authority for, and application of, these tests, see Alex Frame Grey and Iwikau: A Journey into Custom, above n 2, Section VII ‘Revaluing Custom as a Source of our Law’, at 63-76.

8 Case of Tanistry 80 Eng. Rep. 516 (1608), quoted in EK Braybrooke, “Custom as a Source

of English Law” (1951), 50 Michigan Law Review 71 at 73.

9 Fritz Kern Kingship and Law in the Middle Ages, transl. SB Chrimes (Basil Blackwell, Oxford, 1968) at 150. The work was first published in German in 1914 and first published in English translation in 1939. Pocock recommends its quality.

Secondly, Sir John Salmond is clear that the original meaning of “time immemorial” for the purpose of establishing custom as law was that the custom be “so ancient that the beginning of it was beyond human memory, so that no testimony was available as to a time when it did not exist”.¹⁰ But English law substituted “legal memory” for this human memory and fixed the year 1189 (the date of accession to the throne of Richard I (“Richard Coeur de Lion”) as the date at which memory ceased. There is no reason, however, for applying this idiosyncratic rule of thumb to Māori customary law, which must accordingly be considered under the original and more general meaning of immemoriality identified by Sir John Salmond.

A second point about the immemoriality requirement is that it does not preclude development and modification of custom. This dynamic aspect of customary law has been well recognised by the common law courts, as is shown with respect to Māori custom concerning adoption by the Privy Council in Hineiti Rirerire Arani v Public Trustee in 1919, where Lord Phillimore said:¹¹

It is ... abundantly clear that Native custom, and especially the Native custom of adoption ... is not a fixed thing. It is based upon the old custom as it existed before the arrival of Europeans, but it has developed, and become adapted to the changed circumstances of the Maori race to-day.

The New Zealand-born political philosopher JGA Pocock first published his work on “The Ancient Constitution and the Feudal Law” in 1957, and reissued it in 1987 with a “Retrospect”.¹² Its central method derived from the realisation that the thoughts and actions of ancient times could only be understood if the world in which they occurred were “resurrected” and described in detail. Pocock saw the paradox presented by these two sides of customary law – its constant adaptation and its timelessness. His resolution for the paradox was to quote Hale’s old argument of a ship totally replaced in materials over its life still being the same ship: “If the law can remain the same when the whole of its content has been altered, it must be the continuity of the process of law- making which counts.”¹³

10 Salmond, above n 1, at 220.

11 Hineiti Rirerire Arani v Public Trustee NZPCC 1840-1932. See also the interesting statement by Lord Phillimore that “the maories as a race may have some internal power of self- government enabling the tribe or tribes by common consent to modify their customs...”. For further discussion see Grey and Iwikau, above n 2, at 72.

12 JGA Pocock The Ancient Constitution and the Feudal Law: Reissue with a Retrospect

(Cambridge University Press, Cambridge, 1987).

13 Ibid, at 176.

iV. A DEFINITION OF CUSTOMARY LAW FOR Te MāTāpunenga

Te Mātāhauariki Institute researchers, under the guidance of Judge Michael Brown, the late Dr Tui Adams, and a very distinguished Advisory Panel. have grappled from the beginning with the formulation of a definition of “customary law” which did not exclude norms which were “spiritually sanctioned” rather than directly physically enforced by the group or tribe. The Editorial Board of Te Mātāpunenga finally settled on the following:¹⁴

A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of force or the construction of serious social disadvantage by an individual, group, or agency possessing the socially recognised privilege of so acting.

It may be useful if I sketch the process by which that definition took shape. The Editorial Board began with Hoebel’s helpful proposal that:¹⁵

a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognised privilege of so acting.

But even Hoebel’s definition, while displaying a commendable departure from the tendency of mainstream 19th-century Western jurisprudence to insist on “commands” and “sovereignty” before conferring the status of “law”, still clung to “physical force” as the hallmark and sine qua non. What then of a norm the breach of which was believed by both the offender and the social group to lead on to “supernatural” punishment? Hoebel’s definition would deny it legal status. The Board pondered Lon Fuller’s question:¹⁶

Just what is meant by force when it is taken as the identifying mark of law? If in a theocratic society the threat of hell-fire suffices to secure obedience to its law, is this “a threat of force”?

The Board considered that adding the consequence of “the construction of serious social disadvantage” might broaden the definition so as to capture that circumstance, as it considered was necessary to fully represent the Māori legal order.

14 Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori

Customary Law, Introduction.

15 E Adamson Hoebel The Law of Primitive Man: A Study of Comparative Legal Dynamics

(Harvard University Press, Cambridge, Massachusetts, 1954) at 28.

16 Lon Fuller The Morality of Law (Yale University Press, New Haven, Connecticut, first

published in 1964, revised ed 1969) at 109.

V. THE IMPOSSIBILITY OF RANKING CUSTOMARY CONCEPTS AND

INSTITUTIONS ON A “PRIMITIVE/SOPHISTICATED” SCALE

My friend and colleague Paul Meredith and I have pointed out that use of a supposed “primitive/sophisticated” scale for customary legal concepts and institutions is inappropriate because a particular set of criteria is necessarily chosen by which to measure “sophistication”:¹⁷

Other criteria could be proposed which might produce different orderings. For example, if social cohesion were taken as the measure, or economic cost, then legal systems might be placed at different positions on the scale. Systems in which law consisted of technical legal signals administered by expensive specialist groups of judges, lawyers, and policemen might be seen as “primitive” when compared to “sophisticated” systems capable of functioning effectively without either.

I have tried to provide an example to illustrate the futility of attributing “primitivity” and “sophistication” in an account of Māori customary legal principles encountered by Governor Grey and his party on their journey overland to Taupō with Iwikau Te Heu Heu in the summer of 1849–1850. In discussing the Māori theory of obligation in relation to taonga, founded on the active and personal role of hau, it was concluded that: “This system need no policemen, courts, or bailiffs, since the taonga themselves serve as enforcers.”¹⁸

A modern Minister of Justice – and his or her colleague in charge of the Treasury

– might be very interested in such a system! Far from appearing “primitive”, such a system might on examination prove to be very “sophisticated”. As proposed earlier, all would depend on the criteria adopted.

VI.  the so-called Issue of “genuIne” Versus “spurIous” custom, 

And the generAL chArge thAt custom is mAde up to suit

Customary law has its critics. Some legislators, inclined towards codification of law, tend to regard customary law as a perplexing and complicating intrusion upon the clear geometry of their architectural plans, and are happy to take

17 Alex Frame and Paul Meredith “Performance and Maori Customary Legal Process”, 114

Journal of the Polynesian Society 135, at 139.

18 Grey and Iwikau, above n 2, 59-61.

every opportunity to sweep it away.¹⁹ Some judges, perhaps forgetting the origins of the common law in custom, have come to see that body of law as judge-made, rather than as judge-found. Some jurists and commentators have expressed suspicions that customary law is simply “made up” by claimants with axes to grind or interests to pursue. This last matter is discussed in the Introduction to Te Mātāpunenga, where the authors state that:

The business of argument based on customary law – and for that matter on written codes – is to present an outcome which is faithful to what are urged to be the fundamental values of the society. Of course that will involve appeals to a “Golden Age”, and of course there will be attempts to “edit”.²⁰ On the other hand, the business of adjudicators, scholars, and the collective memory of society (however that may be stored, whether in venerable tomes or in traditional genealogies and song) is to identify and denounce fabrications or false pleadings, without stifling the necessary dynamism of customary law.

So the answer to the detractors and critics of customary law is twofold. First, that our constitutional arrangements require courts to seek and declare it in accordance with well-understood and coherent tests allowing and requiring the sifting out of false or doubtful claims and permitting the abandonment of “unreasonable” custom, such as norms or practices contrary to modern human rights norms. Secondly, that the value of customary law lies in its balancing of the well-accepted “top-down” law-creating powers of a legitimate legislature with the “bottom-up” recording and development of customary law. We do not reject the undoubted utility of rational law making, but seek to balance its value against the danger that legal “architects” may lose touch

19 I have elsewhere contrasted this “architectural” approach to law making, which aims at clearing the legal deck ready for the grand new vision of the law-maker, with a more “archaeological” approach aimed at uncovering the historical concepts and values of the society concerned. See “Making Constitutions in the South Pacific: Architects and Excavators” in David Carter and Matthew Palmer (eds) Roles and Perspectives in the Law: Essays in Honour of Sir Ivor Richardson (Victoria University Press, Wellington, 2002) 277.

20 If an example be demanded from the early colonisation period in New Zealand, see FD Fenton’s “The Laws of England Compiled and Translated into the Māori Language by direction of His Excellency Colonel Thomas Gore Browne, C.B., Governor of New Zealand” (Auckland, 1858). In that work, which attempted to summarise the origins and content of English law, Māori were told that:

A wise and generous people, the English, have settled in his land; and this people are willing to teach him, and to guide him in the well-made road which themselves have travelled for so many generations; that is the path of the perfected law – in the path by which themselves have attained to all the good things which they now possess; wisdom, prosperity, quietness, peace, wealth, power, glory, and all other good things which the Pakeha possesses... (p. ii)

Few jurists, or citizens, would have described the state of English law in the mid-19th century as “perfected”.

with that reservoir of support and determination in the hearts of the people without which law becomes an alien imposition, to be abandoned as soon as circumstances permit.