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Aikman, Helen --- "Is custom conservative? Is so, is it a strength or weakness?" [2011] NZYbkNZJur 9; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 66

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 of Westernisation 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 example.

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 and cultural maintenance.³

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 [2005] 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).

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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 culture 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 process”?⁴

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 able to 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 “reasonableness”. 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. This risks ossifying custom and it becomes less and less relevant to modern norms and

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 over time.

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’ codification 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 wealth.

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 human rights, particularly women and young people, are seen as attacking custom and importing foreign, Western values, when in fact they may simply be seeking a voice.⁹

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 incorporation.

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 [2004] 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.

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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 while 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 will remain relevant and the formal “law” will be accepted as part of a community’s culture, rather than being seen as imposed from outside.

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 future.

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.