New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 25 April 2015
is CUSTOM CONSERVATIVE?
IF SO, IS IT A STRENGTH OR WEAKNESS?
HELEN AIKMAN QC
Custom has frequently been characterised as a conservative or even a
reactionary force. It is seen as holding back progress and as
contrary to human
rights, especially for vulnerable minorities. There is an assumption that custom
must give way to modernity, and
the sooner the better.
A contrary view is that custom represents an essential part of who a people
are. While the outward manifestations of custom may change
over time, its
fundamental tenets remain constant.
The latter view must be correct. Empirical evidence testifies to the
resilience of custom, even in the face of the huge challenges
and now globalisation.
Custom has always adapted, and the history in the Pacific in the past 200
years shows how adaptive custom has been. The most graphic
example was the
adoption of Christianity, which has been incorporated into custom to such an
extent that it has itself become custom.1 The early missionaries
achieved this feat by appealing to the traditional leaders and often by
incorporating analogies to traditional
beliefs.2 Many modern
missionaries and human rights advocates could learn much from their
Other adaptations followed, with elements of the money economy and education
being adopted. As Paul Meredith’s research presented
to this conference
shows, Māori very quickly realised the value of Māori newspapers and
journals as a means of communication
1 New Zealand Law Commission Converging Currents: Custom and Human Rights in the
Pacific (NZLC SP17, Wellington, 2006) at 56-57.
2 In many Pacific societies, these “traditional” Christian churches are now being challenged by the new evangelical faiths, which often do not put as much store on traditional obligations to wider family networks or the village as a whole. This creates a whole new challenge to custom and has been the subject of many court challenges based on freedom of religion. See for instance Teonea v Pule o Kaupule  TVHC 2 Ward CJ where the High Court of Tuvalu upheld the right of a village council to restrict religions and faith to the three established churches in part because of the emphasis in the constitution on the maintenance of Tuvaluan values and culture.
3 Paul Meredith “Wāhi Tapu: Utilising Te Mātāpunenga” (paper presented at Tūhonohono:
State & Custom Symposium, June 2007).
2010 & 2011Is Custom Conservative? If So, Is It a Strength or
The whare in which this symposium was held, in the heart of Kīngitanga,
provides another example. Māori tradition abounds,
yet the Kīngitanga
was not a traditional Māori movement. Rather it was a very Māori
adaptation to the imposition of
pakeha Kuinitanga. It has endured for nearly a
century and a half, despite the onslaughts of government actions and pakeha
generally. It continues to thrive today, and is very much a
manifestation of Tainui custom.
These adaptations did not mean that custom disappeared but rather that it
exists alongside or is incorporated into current day practice,
a process that
still continues without a change of the core values.
This raises the question – what is custom? Is it the way one’s
forebears behaved, particularly in pre-European times,
or in terms of common
law, since “time immemorial” or, as Alex Frame’s quote from
Pocock suggests, “an ever
changing product of historical
I suggest it must be the latter, and therefore custom should not be seen as
inherently conservative; it has the capacity to adapt
according to the needs of
its society. It is not something cast in stone but rather is a normative
standard by which a people operate.
There may be a normal way of doing things,
but when something abnormal occurs, or circumstances change, the custom must be
mould itself to the new environment.5
But, too often, the proponents of custom suggest that custom is immutable;
that because something was done a particular way before,
it must continue. They
seek legitimacy for current action merely by reference to past practice, even if
it is not necessarily the
“right” thing to do. This is a distortion
of custom. Instead one should apply the common law concept of
What was reasonable a century ago is often no
longer reasonable today– the law and custom must adapt.
Therefore, while the search for historical antecedents of custom is important
to inform as to what and why things were done, it should
not lead to current
practice being set in stone. The Māori word tikanga clearly illustrates
this. It may be translated as “custom”,
but in fact it is about
doing what is “right”.
For this reason the Commission recommended against the codification of
custom,6 although this is often the first resort of Western-style law
makers: define for us what the custom is so we can apply it like a statute.
risks ossifying custom and it becomes less and less relevant to modern norms
4 Dr Alex Frame “A Few Simple Points about Custom & our Legal System” this volume.
5 See discussion of custom in Law Commission Converging Currents, above n 1, ch 4.
6 Ibid., 190-194.
68 Yearbook of New Zealand Jurisprudence
Vols 13 & 14
therefore more readily rejected.7 On the other hand, a commentary
on custom, such as Te Mātāpunenga, should be incredibly
valuable because it explains the roots and values of a custom, and shows how it
has been applied and adapted
One of the characteristics of an oral culture as opposed to a written one is
that history (and therefore practice) can more easily
change over time. Myths
are created that may bear little resemblance to actual events, but which serve a
useful purpose for dealing
with contemporary events. Depending on who is making
the myths and to what end, this may help to ease or aggravate conflict. Either
way, it is better if the process of mythologising is acknowledged, so the good
myths can be retained and others rejected.
An example of an unhelpful myth in the Pacific is the land tenure laws of
some countries. These are often based on the colonial powers’
of their perceptions of customary tenure. In a number of Pacific societies,
chiefs were given the lion’s share
of the land or associated
rentals.8 What is often overlooked now was the concomitant obligation
which chiefs had to care for the welfare of their people and to redistribute
The motivation for a rigid approach to custom must be examined. In the
Pacific, often those who espouse custom most vociferously are
those who have
most to gain from it – the political elites, as well as some traditional
and church leaders. There is a tendency
for any challenge to orthodoxy to be
rejected as “not the Pacific way”. Those calling for recognition of
particularly women and young people, are seen as attacking custom
and importing foreign, Western values, when in fact they may simply
be seeking a
But just as custom must adapt to modern concepts and demands for human
rights, so too must human rights advocates seek recognition
of their rights in a
way that takes account of custom. Adaptation works both ways. While some rights
will be so fundamental that
they should not be circumscribed by custom, others
can accommodate and recognise it, and will be stronger for such
7 Melody MacKenzie’s description of the Hawaiian customary code, set at 1892, is an example of this problem: “Hawaiian Custom in Hawai‘i State Law”, this volume.
8 On Fiji see Winston Halapua Tradition, Lotu and Militarism in Fiji (Fiji Institute of Applied Studies, Lautoka, 2003) 95, citing Pacific Islands Monthly (December 1999) 9; Elizabeth Feizkah “The Money Tree” Time Pacific (20-27 August 2001) <www.time.com>.
9 For instance in Taione v Kingdom of Tonga  TOSC 47, the Crown unsuccessfully attempted to restrict media freedom and argued that speech critical of the monarchy was contrary to the cultural traditions of the Kingdom. While criticism of traditional leaders might need to be expressed in terms that take account of cultural sensitivities, custom should not be used as a way of muting political debate.
2010 & 2011Is Custom Conservative? If So, Is It a Strength or
Much of the concern in the Pacific has been about the emphasis on the
universality of human rights, leading to conflict between the
“universalists” and the “cultural relativists”.10
While the basic rights may be universal, it does not mean there is only
one way of achieving them. It is also often forgotten that
human rights have
adapted and developed over time as well.11 In particular, there is
increasing emphasis on collective rights and obligations, alongside individual
political rights. In particular,
the right to practise one’s culture is
one of those basic rights and is guaranteed by international conventions. And
the scope of rights of indigenous peoples is the subject of ongoing
international debate, no one doubts that they must be recognised.
It was the Commission’s thesis that, underlying both custom and human
rights, as well as most religions, is a recognition of
human dignity. Sometimes
this value gets obscured in practice, but the aim of decision-makers must be to
seek those common values
and to ensure that, where the practice of certain
customs may have a negative impact, they can be modified. In that way, custom
remain relevant and the formal “law” will be accepted as part
of a community’s culture, rather than being seen
as imposed from
In conclusion, custom is “conservative” if by that one means
conserving a culture, but just as cultures adapt, so must
custom. That is its
strength – and the challenge for the
10 For two perspectives in this debate see P Imrana Jalal “Using Rights-Based Programming Principles to Claim Rights: The Regional Rights Resource Team (RRRT) Project in the Pacific Islands” (2005) <www.rrrt.org>; Konai Helu Thaman “A Pacific Island Perspective of Collective Human Rights” in Nin Tomas (ed) Collective Human Rights of Pacific Peoples (International Research Unit for Maori and Indigenous Education, University of Auckland, Auckland, 1998) 1-9.
11 See Sally Engle Merry “Changing Rights, Changing Culture” in Jane K Cowan, Marie- Bénédicte Dembour and Richard A Wilson (eds) Culture and Rights: Anthropological Perspectives (Cambridge University Press, Cambridge, 2001) 31.