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Boast, R P --- "The laws of Hawaiki: towards a legal history of pre-European Polynesia" [2022] OtaLawRw 3; (2022) 17 Otago LR 239

Last Updated: 9 March 2024

The Laws of Hawaiki


The Laws of Hawaiki:

Towards a Legal History of Pre-European Polynesia

R P Boast*

1 Non Euro-American Legal Histories?

There is already emerging, perhaps somewhat haltingly, a call for the field of legal history to emancipate itself from its fixation on the United States and Europe. John Harris, professor of legal history at Tel Aviv University, has recently argued that the time has arrived for “a non Euro-American legal history”.1 To bolster his thesis, Professor Harris has pointed out that at conferences of the American Society of Legal History, there can typically be more panels devoted to the history of American constitutional law than to the legal history of the entire rest of the globe.2 A quick review of scholarly databases shows that there is far more literature available on the legal history of African Americans than there is on the legal history of the entire African continent (in pointing this out, I do not of course mean to diminish the importance of the former). Civil lawyers, for their part, remain transfixed by Roman law, even as they make the intellectually challenging transition to seeing Roman law within its historical and cultural context in Rome3 rather than as a source for the underlying rules of, or background to, the contemporary law of obligations and other fields of private law in such great Civil Law jurisdictions as France, Italy, Germany and South Africa. As an aside, one must note that the two biggest Civil law countries of the present day

* KC, OMNZ, Professor, Victoria University of Wellington. Earlier versions of this paper have been presented as guest lectures at the School of Law, University of the South Pacific (Vila) and at the School of Law, Otago University. My thanks to the organisers of both guest lectures, especially to Lili Song. My thanks are also due to Haami Piripi, of the Te Rarawa iwi (‘tribe’) of the Muriwhenua region of the North Island of Aotearoa New Zealand, with whom I have discussed the concept of rāhui on a number of occasions.

  1. See Ron Harris “Is it Time for a Non-Euro-American Legal History?”

(2016) 56 Am J Legal Hist 60.

  1. At 60. The response might be is that conferences of the American Society of Legal History, one of which I have attended as it happens, will draw speakers from American law schools who wish to discuss what they are working on with their colleagues. But that, if so, only reinforces Professor Harris’ point.
  2. On the challenge of the historicisation of Roman law, see Aldo Schiavone The Invention of Law in the West (Harvard University Press, Harvard, 2012) (originally published in Italian as Ius: L’invenzione del diritto in Occidente (Giulio Einaudi Editore, Rome, 2005).

are no longer Germany and France but Mexico4 and Brazil, both with Civil Codes and both deeply influenced by the Iberian variants of the ius comune of Western Europe.5

Two recent great compilations of materials on legal history published by Oxford University Press only reinforce Professor Harris’ point and show how much distance still needs to be travelled. The newly published (2018) Oxford Handbook of Legal History6 surveys the legal history of all the peoples of the globe. It is a monumental collection, expertly edited, and of the utmost value to all specialists in legal history. Overwhelmingly, however, the book is about Anglo-American law and the Civil Law. Granted, there is one chapter on Jewish law, one on Chinese law, one on Indian law and one on Islamic law, all outstandingly interesting. Nonetheless, more than half of the population of the globe gets four chapters (out of 57). Thankfully, there is one chapter, by Shaunnagh Dorsett, on the legal history of indigenous law in Australia and New Zealand7, but there are no counterparts on the histories of indigenous laws in Africa, Latin America8, or Russia and the Arctic. Many of the chapters in the collection are methodological and historiographical, on, for example, historical jurisprudence, legal formalism, critical legal studies, critical race theory, legal history as economic history, and historians’ amicus briefs, all certainly interesting and important. But these chapters are overwhelmingly about Anglo-American and Civil law. The chapter on historical analysis in environmental law9, a very interesting and thoughtful one as it happens, is almost entirely about the United States with a nod to forest laws in Britain. The chapter on critical race theory never strays beyond the United States, as if this concept can have no applicability in the Caribbean, Brazil, southern Africa, or, come

  1. The standard textbook on the legal history of Mexico is Oscar Cruz Barney Historia del derecho en México (Oxford University Press, México (DF), 2004). Chapter 2 of this book, “Derecho indígeno prehispánico” (pages 1–39) is devoted to a very full discussion of the indigenous (Maya, Nahua etc) foundations of Mexican law and is imbued with a strong sense that these prehispanic legal cultures certainly did have a legal history.
  2. The current population of Brazil is 213.32 million; of Mexico about 129 million. This can be compared with Germany (83.15 million) and France (67 million). The economies of both Mexico and Brazil are also very large.
  3. Markus D Dubber and Christopher Tomlins (eds) The Oxford Handbook of Legal History (Oxford University Press, Oxford, 2018).
  4. Shaunnagh Dorsett “Traditions: Tracing Legal History, Aboriginal/ Indigenous Law (Australia/New Zealand)” in Markus D Dubber and Christopher Tomlins (eds) The Oxford Handbook of Legal History (Oxford University Press, Oxford, 2018) 799.
  5. The excellent chapter on Latin America in this volume by Thomas Duve focuses mainly, albeit not entirely, on the debate on indigenous rights in Renaissance Spain and on derecho indiano (ie ‘the laws of the Indies’, or Spanish imperial law, codified in the seventeenth century).
  6. David B Schorr “Historical Analysis in Environmental Law” in Markus D Dubber and Christopher Tomlins (eds) The Oxford Handbook of Legal History (Oxford University Press, Oxford, 2018) 1001.

to that, in the Pacific.10 The volume was published in tandem with The Oxford Handbook of European Legal History, one that gave to European legal history a separate vast compilation all to itself.

Professor Harris goes on to acknowledge that while there is growing interest in colonialism and the law, this tends to focus on the “transplants” of European Civil Law and Anglo-American Common Law. But the “legal transplants” literature, while valuable, is still about European law: “this literature,” Professor Harris argues (compellingly, I believe), “engages in the transition out of colonial law, the charm of colonial law, and the repudiation of colonial law”. While all well and good, this type of scholarly inquiry, “is, therefore, not disconnected from European law”.11 Professor Harris is correct. And, in fact, the legal histories of Australia and New Zealand have been – until very recently – cases in point. There is much writing, for example, on the legal context of the Treaty of Waitangi, much of it of the highest quality and deeply scholarly,12 but this scholarship is still principally about English law, English public law especially. The literature on the transplantation of English commercial law, by contrast, which was of course the foundation for the colonial capitalist economy of the country, is much less developed. What does not exist are legal histories of non-European legal traditions, putting aside, for the sake of argument, as one must, Islamic and Talmudic law, much of the literature relating to both certainly being historical. No one would be so rash as to deny that Islamic and Talmudic law both have rich and vast historiographies. What Professor Harris is hoping to see, however, are more legal histories of indigenous or local legal traditions, such as African laws, or Southeast Asian, or those of the Pacific. Is it time, then, for the academy’s recognition of the emergence of histories of Polynesian law, or of the laws of other parts of the Pacific?

Katherine Hermes, in her chapter in The Cambridge History of Law in America (2008) has pointed out that, despite the growing acceptance that Native American peoples had law before European contact, “no historian has ever attempted a narrative of indigenous American jurisprudence”.13 This she attributes to the reluctance of historians to admit that Native Americans had law in the first place. There cannot be a history of something that does not exist. She goes on to point out,

  1. Where it has indeed made an appearance: see Fuimaono Dylan Asafo “‘We Are Voyagers!’ Building a Pacific Critical Legal Theory for a New Voyage to Freedom” [2020] CanterLawRw 15; (2020) 27 Canta LR 99.
  2. Harris, above n 1, at 60.
  3. Recent, and outstanding, examples include Ned Fletcher The English Text of the Treaty of Waitangi (Bridget Williams Books, Wellington, 2022), and Bain Attwood Empire and the Making of Native Title: Sovereignty, Property and Indigenous People (Cambridge University Press, Cambridge, 2020).
  4. Katherine A Hermes “The Law of Native Americans, to 1815” in Michael Grossberg and Christopher Tomlins (eds) The Cambridge History of Law in America: Volume 1: Early America (1580–1815) (Cambridge University Press, New York, 2008) 32 at 33.

most perceptively, that even by the time there was growing acceptance that Native Americans had law after all, historians tended to focus their energies on “neo-conquest analyses that stressed the brutality of European behavior and the often fatal biological consequences of European occupation of the Americas after 1492”.14 Writing about the continuous history of Native American law did not seem to fit within a narrative that stressed cultural obliteration and genocide.

Hermes itself is hesitant about accepting that Native American societies had “law”, and prefers to suggest that Native American peoples had “jurispractice”:15

But if jurisprudence is the philosophy of law, and if law itself is interwoven, sometimes inextricably, with morality, custom, or other means to force people to act in ways they would not otherwise choose, American Indians certainly possessed law. They may have had no way in which to disperse and debate philosophical principles, but they shared certain concepts that created a legal mentalité – what I here call “jurispractice” – that evolved as an indigenous way of acting legally, both within indigenous societies and among them, and that could, after European settlement, be communicated to colonial authorities whose systems were different.

It is hard to disagree with any of that, save to note that one might just as well accept that “jurispractice” and “law” are the same thing, especially so given the rich range of meanings that the term “law” now has across a range of scholarly disciplines. Anthropologists see “law” in a particular way, and legal scholars themselves have highly varied understandings according to various jurisprudential orientations, from legal positivism, to the German historical school, to American legal realism and to critical legal studies. Even in modern societies, it might be said, that “law” also involves culturally specific forms of jurispractice, whether in legal practice, criminal and civil trials, and in the law schools.

Even those who argue the case for, and document, Māori, or Polynesian law, can easily fall into the trap of the “ethnographic present”. It is the same elsewhere in the Pacific. The Kanak peoples of New Caledonia, for example, had richly developed systems of customary law, systems which remain an important component of modern private law in New Caledonia. This law is the subject of a number of monographs in French, but which do not treat the indigenous legal systems historically except to the extent to which these systems have interacted historically with French private and public law.16

“Customary law”, or “custom law”, if one prefers, is typically seen

as simply there, to be documented by oral testimony in such fora as the

14 At 32.

15 At 33.

16 Antoine Leca Introduction au Droit Civil Coutumier Kanak (Presses Universitaires d’Aix-Marseille, Marseilles, 2016); and Leca Précis de Droit Civil Coutumier Kanak (4th ed, Presses Universitaires de la Nouvelle- Calédonie, Nouméa, 2019).

Māori Land Court, the Waitangi Tribunal, or the Native Title Tribunal in Australia, or alternatively based on research by anthropologists. This article, however, is based on the premise that Polynesian law has a history, and, moreover, a history which is intelligible and can be researched by legal historians at the present day.

The ice is, at last, starting to break. One important harbinger of things to come is Shannaugh Dorsett’s lonely chapter in The Oxford Handbook of Legal History, mentioned above. Another is the newly published in 2022 Cambridge Legal History of Australia.17 This massive multi-authored text is heartening in many ways. One of the editors, Dr Mark McMillan, is himself an indigenous Australian (Wiradjuri, New South Wales), as are a number of the contributors, Eddie Cubillo, Paul Gray, Shino Konishi, Daryle Rigney, Denis Rose Guditjmarra, Nicole Watso; and other contributors have close links with indigenous Australian communities. Some chapters are indeed, wholly or partly, histories of indigenous laws. An example is the long chapter on indigenous governance, co-authored by Tim Rowse, Jennifer Green, Daryle Rigney, Denis Rose, Alison Vivian, Miriam Jorgensen, Steven Hemming and Shaun Berg. The Cambridge Legal History of Australia breathes a new spirit, not only in Australian historiography, but in the whole domain of legal history internationally, and is far more conceptually and methodically interesting than the two Oxford compilations discussed earlier. Although the Cambridge Legal History of Australia is modelled to some extent on The Cambridge History of Law in America, it is far more indigenous in spirit and content than the latter.

2 Legal Anthropologies in Aotearoa and the Pacific

The notion for the academy that Polynesia might have a legal history has been slow in coming, both in international scholarship generally and in New Zealand academia. It took many years for the disciplines of anthropology and Māori studies (in particular, the teaching of the Māori language) to gain standing in the University of New Zealand.18 For many years examinations for degrees for the University of New Zealand were set and marked in England, which stifled curricular development in the University’s constituent colleges. As Oliver Sutherland puts it, “[w]ith curricula determined and examinations set and marked in Britain, the university had no place for the sort of ethnological studies of [Elsdon] Best and the others and, intellectuals all, they were left to work in the museums, libraries and government departments, outside the academic

  1. Peter Cane, Lisa Ford and Mark McMillan (eds) The Cambridge Legal History of Australia (Cambridge University Press, Cambridge, 2022).
  2. The University of New Zealand was established in 1874. It was a federal

institution with four constituent university colleges located in Auckland, Wellington, Christchurch, and Dunedin, along with two agricultural colleges. In 1961 the University of New Zealand was disestablished, and its separate colleges became separate universities in their own right.

mainstream”.19 Academics interested in Māori issues, such as John Macmillan Brown (1845-1935) and Ivan Sutherland20 (1897-1952) had to teach in other fields, and New Zealand anthropologists like Sir Peter Buck (Te Rangihiroa), Felix Keesing, and Raymond Firth were forced to pursue their careers overseas. No chair of anthropology in New Zealand was established until 1949, Auckland University College being the first to take this step.

The absence of courses in Māori and Polynesian languages, archaeology and anthropology at the university did not mean that these subjects attracted no interest in New Zealand; it only meant that these fields were largely pursued outside the university. A strong tradition of ‘amateur’

– or, at least, non-university – scholarship emerged in the 19th century. This tradition was continued into the twentieth century by such scholars as Elsdon Best and Edward Tregear and through the Polynesian Society,

founded by Tregear and Percy Smith (both civil servants) in 1892. The Society’s journal, The Journal of the Polynesian Society, published material on linguistics, Polynesian origins, mythology and material culture but also to some extent on cultural anthropology and sociology.21 Māori and Polynesian scholars were very welcome, and the official patron of the society was Queen Liliuokalani of Hawai‘i (deposed by the United States in 1893). The dominant tone in Māori studies in New Zealand up to about 1925 was a preoccupation with material culture, traditional history, mythology and Polynesian origins, perhaps reaching its highpoint with Best’s massive and extraordinary ethnohistory of Tuhoe published by the Polynesian Society in 1925.22

The lack of interest in Māori customary law on the part of New Zealand law teachers in the early 20th century showed that thinking about law and jurisprudence in this country was up to date, not that it was behind the times. For academic lawyers, who were not trained in ethnography, the problem was one of how customary law could be studied, as lawyers confined themselves to studying the primary texts of law: statutes and the printed texts of judgments of the Courts. Anthropological fieldwork

  1. Oliver Sutherland Paikea: The Life of IGL Sutherland (Canterbury University

Press, Christchurch, 2013) at 147.

  1. Sutherland was a social psychologist who studied at Victoria University College and Glasgow University and became professor of philosophy at Canterbury University College in 1937. He worked closely with the Māori people and was a friend and supporter of Sir Apirana Ngata of Ngāti Porou and strongly backed Ngāta when the latter was attacked by a commission of inquiry in 1934. On Sutherland see Sutherland, above n 19.
  2. On the Polynesian society see MPK Sorrenson Manifest Duty: The Polynesian Society Over 100 Years (Polynesian Society, Auckland, 1992).
  3. Elsdon Best Tuhoe: The Children of the Mist: A Sketch of the Origin, History, Myths and Beliefs of the Tuhoe Tribe of the Maori of New Zealand; with Some Account of Other Early Tribes of the Bay of Plenty District (Board of Maori Ethnological Research on behalf of the Polynesian Society, New Plymouth, 1925).

in the tradition of Boas and Malinowski has nothing in common with academic legal studies. Legal scholars, with some important exceptions, study texts, and have no tradition of conducting interviews or fieldwork in order to find out what the law is at any given time. At least in the English-speaking world, the study of the legal cultures of tribal peoples in the first half of the twentieth century was dominated by anthropologists who had come to develop an interest in law, and not by law teachers who had become interested in anthropology.

The starting point for modern legal anthropology is usually perceived to be Malinowski’s Crime and Custom in Savage Society (1926).23 To Malinowski a key problem was why it is that people – on the whole – obey law, even when (this being the key point) it is irksome and tedious to do so. Until the publication of this remarkable book most commentators who had thought about “law” in tribal societies assumed that “law” and “custom” were the same and that these rules, to use a neutral term, were obeyed instinctively, or were simply felt to be binding. Tribal people did not differentiate between the moral and the legal: they were hemmed in constrained by their customs and challenging or defying them was unthinkable. Or, as Malinowski inimitably puts it:24

The extreme difficulty of the problem lies, I think, in the very complex and diffuse nature of the forces which constitute primitive law. Accustomed as we are to look for a definite machinery of enactment, administration, and enforcement of law, we cast around for something analogous in a savage community and, failing to find there any similar arrangements, we conclude that all law is obeyed by this mysterious propensity of the savage to obey it.

Malinowski based his book around his own ethnographic studies in the

Trobriand Islands and constructed it around two key points: that “law”

  1. The copy I have and will cite here is Bronislaw Malinowski Crime and Custom in Savage Society (Kegan Paul, Trench, Trubner & Co, London, 1932). As to the centrality of Malinowski’s book see eg Sally Falk Moore (ed) Law and Anthropology: A Reader (Blackwell Publishing, Oxford, 2005) at 68: “Crime and Custom ... marks the first fieldwork attempt by an anthropologist to look at law in a setting where there were no indigenous formal legal institutions, no courts, no police, no writing, no legislature”. However as Malinowski himself points out that there was an earlier phase of interest in “savage justice and the methods of its administration” in 19th century Germany, and mentions the contributions of Bachofen, Post, Bernhöf and Kohler. However their efforts was “heavily handicapped” because they carried out no fieldwork themselves (thus they “had to rely upon the data of the early amateur ethnographers”) and also because they were wedded to cultural evolutionism (they were “all and one committed to the hypothesis of ‘primitive promiscuity’ and ‘group-marriage’, just as their British contemporary, Sir Henry Maine, was handicapped by his too narrow adhesion to the patriarchal scheme”): Crime and Custom at 2–3.
  2. Malinowski, above n 23, at 14.

is always distinct from merely moral rules, and that the law is obeyed and adhered to partly because of reciprocity:25

There is no doubt that custom is not based only on a universal, undifferentiated, ubiquitous force, this mental inertia, though this unquestionably exists, and adds its quota to other constraint. There must be in all societies a class of rules too practical to be backed up by religious sanctions, too burdensome to be left to mere goodwill, too personally vital to individuals to be enforced by any abstract agency. This is the domain of legal rules, and I venture to foretell that reciprocity, systematic incidence, publicity and ambition will be found to be the main factors in the binding machinery of primitive law.

To Malinowski, then, all societies have ‘law’ in this sense: legal rules are those which apply, and are enforced, by whatever means, in the here-and-now.

It is to be noted that Malinowski does not insist that ‘legal’ rules are those which are coercively applied by chiefs or even by the ‘community’: in fact he believes that a complex range of mechanisms constitute the “binding machinery” of “primitive law”, these being “reciprocity”, “systematic incidence”, “publicity”, and “ambition”. But it is the concept of reciprocity with which Malinowski is particularly associated: people obey the rules, even when doing so is irksome, because they know that on other occasions they will benefit from the rules being obeyed by others. This is no doubt part of the reason why “the law” is obeyed by most people, most of the time, in all societies. We obey traffic signals, even when it is tedious and even unnecessary to do so and there is no patrol car in sight, on the understanding that other motorists will do the same. Malinowski’s approach to the meaning of “law”, it can be said, is one which is of universal applicability; it is in fact a jurisprudential theory. Malinowksi was strongly opposed to Victorian evolutionary anthropology26, and his approach to law fits with that wider goal in terms of his thinking as an anthropologist: he has no interest in the suggestion that societies with “law”, in the strict – or in any other sense

– rank higher on an evolutionary scale. In his vision, all societies have economics, religion, cultures – and law. He does not seem to have been interested, either, in searching for particular “rules of recognition”27, i.e. meta-rules which distinguish between the legal and the non-legal in any given society; probably, if pushed, Malinowski would have said that all cultures have rules of recognition, which can be richly diverse and vary from culture to culture (a proposition that some in the positivist camp might actually agree with).

Crime and Custom led to a rich and diverse literature on legal anthropology, which branched off in numerous directions and which

25 At 67–68.

  1. The classic analysis is George W Stocking Jr Victorian Anthropology (The Free Press, New York, 1987).
  2. HLA Hart The Concept of Law (2nd ed, Clarendon Press, Oxford, 1994).

built on, or in some instances revised, Malinowski’s pioneering work. In the United States there was an interesting cross-over between legal anthropology and American legal realist jurisprudence. American legal realists such as Karl Llewellyn and Jerome Frank sought to make a radical break from the sterilities of academic legal formalism exemplified by the celebrated “case method” style of law teaching at Harvard, which was introduced in the first place not, as is generally assumed, to train law students in practical skills (in fact an ability to extract a ratio from a complex appellate decision is of limited usefulness in legal practice) but rather to expose them to the primary building-blocks of the law as built on the foundation of stare decisis and with the wider goal of creating and developing an autonomous and rigorous legal science.28 In movies and popular fiction, the point of the case method is often shown to be that of making sure that students do the readings that have been assigned to them by forcing them to run the risk of public humiliation in the lecture theatre, but that was never its purpose. The case method derived from a particular understanding of the nature of law. Why read cases, after all – rather than, or example, textbooks, or statutes?

Karl Llewellyn, the most prominent of the American legal realists and professor of law at Columbia, read Malinowski’s Crime and Custom and found it interesting, especially because it was on actual fieldwork amongst a tribal society, but as Twining puts it Llewellyn “was irritated by the vagueness and high level of generality of much of the description”.29 Probably at the suggestion of Franz Boas, Llewellyn joined forces with E Adamson Hoebel, a graduate student in the Department of Anthropology at Columbia, and in 1935 Llewellyn and Hoebel conducted brief but very intensive fieldwork amongst a Cheyenne community in Montana. Hoebel went on to devote his career to studying the Cheyenne, publishing a major study on them in 1978, and also continued to write about the anthropology of law. In 1941 Llewellyn and Hoebel published The Cheyenne Way, their famous study of Cheyenne law and a rare example of inter-disciplinary collaboration between anthropology and academic legal studies. The Cheyenne Way, no less than Malinowski’s Crime and Custom, is one of the foundational texts of modern legal anthropology.

Llewellyn and Hoebel were both fascinated by the Cheyenne and described their culture and systems of social organisation in the most glowing terms, but the real importance of The Cheyenne Way is not ethnographic but theoretical, and in particular as a contribution to legal theory. Llewellyn and Hoebel discarded a rules-bound approach to the study of customary law. Their view was that customary law could best be apprehended through a study of “trouble cases”: how are matters resolved when the application of a customary rule is doubtful

  1. See William P LaPiana Logic and Experience: The Origin of Modern American Legal Education (Oxford University Press, New York, 1994).
  2. William H Twining Karl Llewellyn and the Realist Movement (University of

Oklahoma Press, Norman, 1973) at 153.

or uncertain application? It was argued that this analysis was a superior method of understanding the functioning of all legal systems, and that systems could be evaluated as effective and successful according how well troublesome cases were managed and resolved. It could be very possible that the Cheyenne, for example, managed such conflicts far better than the judicial systems of Anglo-American law. The Cheyenne Way is a foundational text not only of legal anthropology, but also of the subject of alternative dispute resolution as this is studied and taught in law faculties. This foundational book is also a founding text for the study of legal pluralism, and has proved influential far beyond the United States. This is shown by the work of the Japanese legal scholar Masaji Chiba, who studied with Hoebel in the USA and who went on to advocate legal pluralism and traditional methods of dispute resolution in Japan.30

It is very striking that in New Zealand it was the Māori Land Court judges such as Frank Acheson and Norman Smith who studied Māori customary law and wrote books and articles about it, not legal academics. The principal academic study of Māori land administration and tenures was I.H. (later Sir Hugh) Kawharu’s Māori Land Tenure: Studies of a Changing Institution (Clarendon Press, Oxford, 1977). The distinguished author was an anthropologist and leader of Ngati Whātua o Ōrākei. This judicial interest arose, of course, from the judges’ daily engagement with Māori customary law in the Native Land Court, which was undoubtedly a Court that saw itself as professionally engaged with the field. Despite New Zealand possessing, with the Native Land and Appellate Courts, specialist tribunals that applied – in a way - Māori customary law, and despite New Zealand exporting similar institutions to the Cook Islands and Niue and taking over the administration of Samoa, Māori (or Pacific) customary law and the jurisprudence of the Native Land Court attracted little interest in New Zealand’s law schools. Partly that was because the Court’s jurisprudence was not formally reported and was therefore

  1. See Annelise Riles “Comparative Law and Socio-Legal Studies” in Mathias Reimann and Reinhard Zimmermann (eds) The Oxford Handbook of Comparative Law (Oxford University Press, New York, 2006) 775 at 787–789.

invisible31; another reason was probably because the Native Land Court was not perceived by the legal profession as a prestigious body. Its judgments were not seen as texts deserving of careful study. They were not portals into the eternal verities of the Common Law, but emanations of a specialist statutory jurisdiction. Judgments of the Native Land Court were not even reported in the New Zealand Law Reports, which routinely printed mediocre decisions of the ordinary courts on bankruptcy and civil procedure but left Judge Acheson’s brilliantly reasoned and lengthy analysis of native title in the Omapere decision in oblivion. Apart from some extracts and summaries published in Waitangi Tribunal reports and law reviews, Acheson’s Omapere decision was not published in full until 2019.32 Just as there were those who – quite erroneously – believed that the Māori language was not worthy of being taught at university because there was (supposedly) no literature written in it – in fact it has an extensive literature – there were also those who thought that Māori law was unworthy of study because it was not actually “law” in the positivist sense, and thus not “law” at all. The impact of new books such as Llewellyn and Hoebel’s The Cheyenne Way on law teaching appears to have been slight in New Zealand, as indeed were most developments in the law schools of the United States. No tradition of legal ethnography emerged in New Zealand, although there are some signs of its belated appearance in recent years. On the whole the teaching of law in New Zealand was highly conservative, dominated by practitioners, and firmly oriented towards British models. Library resources were hopelessly

  1. The New Zealand Law Reports commenced in 1883. The New Zealand Law Reports were quite selective in what they chose to publish, and were (and still are) characterised by a somewhat lofty tone. A rival and more inclusive and work-a-day series, the Gazette Law Reports, began in 1897, and lasted until 1953. Neither the New Zealand Law Reports nor the Gazette Law Reports published decisions of the Native Land Court, although they did of course report decisions of the ordinary courts (Supreme Court, Court of Appeal and Privy Council) dealing with Māori land issues, of which there were a great many. Perhaps it was felt that because so many legal battles over Māori land eventually made their way to the Supreme Court and the Court of Appeal there was no real need to publish the first-instance decisions in the Native Land Court. There were also various specialist reports, especially in the area of labour law and later in environmental (“town and country planning”) law, but there was (and is not) a specialist reporting series devoted to Māori issues. This was very unfortunate and must have been frustrating for intellectual judges such as Judge Acheson of the Native Land Court who wanted to make a mark on the legal world. No doubt the market was simply too small. On the history of law reporting in New Zealand, see Peter Spiller “The Legal Profession” in Peter Spiller, Jeremy Finn and Richard Boast A New Zealand Legal History (2nd ed, Brookers, Wellington, 2001) 249.
  2. For a fully-edited version of Acheson’s decision in Lake Omapere see Richard Boast The Native/Maori Land Court: Volume 3, 1910–1953: Collectivism, Land Development and the Law (Thomson Reuters, Wellington, 2019) at 853–896. The original judgment is at (1929) 11 Bay of Islands MB 253 (11 BI 253).

inadequate. There was no counterpart in New Zealand to the extensive debate in the Netherlands universities over Indonesian customary law. Nor was there any New Zealand equivalent of Van Wollenhoven to critically engage with the utilisation of Māori customary law by the Native Lands Acts and the Native Land Court. It was not until the 1950s when the presence of such distinguished professors as James Williams and Robert McGechan at Victoria and Julius Stone and Geoffrey Davis at Auckland began to lift New Zealand legal education out of the doldrums. McGechan introduced American-style case method law teaching at Victoria, regarded as a very innovative, indeed a dangerously radical, step at the time. It was not until the 1980s that courses on Māori land law and Māori customary law finally emerged in the country’s law faculties, twenty years after courses on Federal Indian law began to make an appearance in the law schools of the United States.

The importance of British models in New Zealand legal and constitutional thought is shown by the pervasiveness of the highly dehistoricised Diceyan model of the constitution (British and New Zealand: the two were imagined to be the same thing) in the teaching of public law until very recently. Dicey’s model, formed in the later nineteenth century, was essentially ahistorical: the fundamental characteristics of the constitution were, are, and always be, the rule of law and the legislative sovereignty of parliament. History was not needed to explain the constitution, although it was in reality a product of a highly contested, even bloody, history: it was simply there.33 To the extent that New Zealand had a constitutional history of any kind, it was envisioned as an insipid variant of Whig constitutional narratives in England, with colonial governors such as Grey playing, not very convincingly, the role of the despotic Stuarts, and presenting “accounts of the progress of the Anglo-settler state from fledgling Crown colony to mature constitutional form”, maturity being achieved with New Zealand’s (belated) adoption of the Statute of Westminster in 1947.34 In recent decades, New Zealand’s constitution has been rehistoricised with a vengeance, so much so that the old Diceyan certainties have collapsed. The explanation lies partly in Britain’s entry into the European community – leaving New Zealanders feeling culturally and politically adrift in a very wide Pacific – as well as Māori political activism at home, combined with the effects of new styles of historical writing and of legal scholarship, the latter receiving much inspiration from a legal literature emanating from Canada. The Treaty of Waitangi, by definition a historical event, and a highly contestable

  1. AV Dicey “The True Nature of Constitutional Law” in AV Dicey Introduction to the Study of the Law of the Constitution (10th ed, Macmillan Press, London, 1959) 1.
  2. PG McHugh “Tales of Constitutional Origin and Crown Sovereignty in New Zealand” (2002) 52 UTLJ 69 at 86. See also PG McHugh “The Historiography of New Zealand’s Constitutional History” in Philip A Joseph (ed) Essays on the Constitution (Brookers, Wellington, 1995) 344.

one, became central to the national political discourse. As Paul McHugh

puts it:35

In this new climate, continuity – the Whiggish theme of the colonial replication of Westminster democracy under devolving Crown sovereignty – was losing power as a historiographical imperative of Commonwealth and, for New Zealand, national history: Leviathan’s grip was being prised loose.

Legal education has slowly shifted course in response to the new Zeitgeist. In consequence, new courses in Māori land law and Māori customary law appeared in the law schools in the 1980s - 1990s, and the content of courses in mainstream courses such constitutional law and property began to change. But Māori customary law has tended to be taught very much in a dehistoricised, ‘anthropological-present’ style, and the same is largely true of the literature relating to customary law in Polynesia, and for that matter, in the rest of the Pacific (the literature on droit coutumier, i.e. customary law, in New Caledonia being one example.) Another important development in Aoteroa New Zealand is from 2025, following the recommendations from Māori legal academics, that tikanga will be taught in all compulsory law courses. It is to be hoped that this important change will lead to much new scholarship and research in this field.

3 The Lapita Revolution and the History of the Ancient Pacific

To develop the thesis that there is a legal history of Polynesia waiting to be written, it is first necessary to consider the wider history of the Austronesian peoples, a linguistic and cultural grouping that includes all Polynesians, as well all of the indigenous peoples of New Caledonia, Vanuatu, much of New Guinea and practically all of Southeast Asia

– and, indeed, Madagascar. Understanding the history of the ancient Pacific involves contributions from many scholarly disciplines, including archaeology, linguistics, genetics, and the study of oral traditions. Since the Second World War, however, it is archaeology which has come to the fore, most spectacularly with the discovery of the Lapita ceramic horizon, named after an earlier find-site on the Grande Terre of New Caledonia. The scholarly recognition of Lapita began with the discovery around 1910 of a distinctive type of pottery featuring geometric designs on the island of Watom in the Bismarck Archipelago.36 Then, in 1920,

W.C. McKern found many potsherds of the same design on Tongatapu. It was really advances in scientific dating technology that brought Lapita increasingly rapid attention. Sherds found in the 1950s in New Caledonia at the Lapita itself were able to be dated by the newly invented Carbon-14

  1. McHugh “Tales of Constitutional Origin”, above n 34, at 85.
  2. Vinton Kirch The Lapita Peoples: Ancestors of the Oceanic World (Blackwell Publishers, Cambridge (Mass), 1997) at 1–14; and Christophe Sand Lapita calédonien: Archéologie d’un premier peuplement insulaire océanien (Société des Océanistes, Paris, 2010) at 13–19.

dating system invented by Willard Libby. The dates, once they had come in, took the community of Pacific archaeologists by surprise, dating to around 3,000 years ago, much older than anyone had supposed. There was soon a region-wide effort to find more of the interesting ancient pottery with its strange designs, and before long it was being found all over the western Pacific. Indeed, new caches of it keep turning up, in New Guinea for example, and it may be only a matter of time until some is discovered in mainland Australia.

The discovery of Lapita is one of the most important developments in world archaeology since the Second World War, fully comparable with such great developments as the decipherment of Maya script37 and the discovery of the Lake Mungo burial in New South Wales (a discovery which not only proved the amazing antiquity of human settlement in Australia but also caused something of an intellectual revolution in that country). Lapita ceramics are characterised by so-called “dentate” decoration caused by pressing small wooden wedges or combs into the clay. The designs are very distinctive, and once one has seen a Lapita fragment, it is in fact quite easy to recognise. But what did it mean? A key breakthrough occurred in 1961 when Jack Golson published a paper that defined Lapita ceramics as representative of a “community of culture”38. One of the most important consequences of the new “Lapitan” Pacific archaeology is it that has collapsed the old distinctions between “Melanesia “and “Polynesia”, a distinction made originally by the French explorer and savant Dumont d’Urville.39 The Lapita world was both “Polynesian “and “Melanesian”, or more precisely, was ancestral to both zones. The Lapita horizon is typically analysed and discussed within a framework which relies on research carried out in both “Melanesia” and

  1. See Michael D Coe Breaking the Maya Code (Thames and Hudson, New York, 1992).
  2. Jack Golson “Report on New Zealand, Western Polynesia, New Caledonia,

and Fiji” (1961) 5 Asian Perspectives 166. The term ‘community of culture’ has become established in the scholarly literature, and Golson’s terminology is widely perceived as an intellectual breakthrough. But what, exactly, is ‘a community of culture’? If anything, it must mean that Lapita ceramics are more than interesting pots but reflect the existence of a particular group of people affiliating to some kind of differentiated culture.

  1. On the origins of this (now discredited) see Serge Tcherkézoff Polynésie/ Mélanésie: L’invention français des “races” et des régions de l’Océanie (XVIe- XIXe siècles) (Au Vent des Iles, Papeete, 2008).

in Polynesia,40 particularly western Polynesia (Tonga, Fiji, Samoa etc., Lapita not being found further east, at least not so far)41. In this respect the discovery of Lapita has a political, or, for those of us who live in Pacific countries, even a geopolitical significance. As P V Kirch puts it, “Lapita sites first attracted the attention of Pacific archaeologists in the 1950s and 1960s, when it became evident that this cultural complex spanned the ethnographic divide between Melanesia and Polynesia.”42

It has become increasingly clear that the spread of Lapita ceramics from Near Oceania into Near Oceania was one dimension of the expansion of Austronesian-speaking peoples into island Southeast Asia and Oceania who used the new technology of the sailing outrigger or double-hulled canoe (waka) and who spoke a group of related languages ancestral to all of the Polynesian and many of the “Melanesian” and Southeast Asian languages of today. (Well-known modern Austronesian languages spoken today include Māori, Hawaiian, Tongan, Malay, Javanese, and all of the indigenous languages of Vanuatu and New Caledonia). Most of these have been long studied by linguists and grammars and dictionaries abound. The Austronesian family is one of the biggest and most widespread language families in the world. Most specialists agree, and this is really the key point, that the archaeological and linguistic evidence point to the same phenomenon: an actual migration of actual people. As P V Kirch and Roger Green have said, “the linguistic and archaeological histories coincide remarkably”.43 And now more recently, the study of both ancient DNA and the DNA of contemporary Austronesians has supplemented the evidence of archaeology and linguistics; this has been further supplemented the study of plant phylogenies, such as that of the paper mulberry tree, all pointing to the same picture as revealed by

  1. d’Urville’s classification (Melanesia/Polynesia), while still used in some contexts, is widely regarded as outmoded, and has been largely replaced by the terms “Near” and “Remote” Oceania, (“near”, that is, to southeast Asia, and “remote” in the sense of accessible only by long- distance sea crossings. The main problem with the earlier classification was that “Melanesia” is not, linguistically or culturally (or genetically) a phylogenetic unit: the peoples of “Melanesia” are very diverse, a mix of very ancient groups and more recent Neolithic migrants. “Polynesia” is somewhat different: Polynesians are in fact relatively homogeneous in terms of languages, culture, archaeology and human genetics and the term ‘Polynesia’ continues to be used. d’Urville’s classification is now widely seen as simply racist, most especially in the case of ‘Melanesia’.
  2. See eg Christophe Sand and Stuart Bedford (eds) Lapita: Ancêtres océaniens/ Oceanic Ancestors (Somogy Éditions d’Art and Musée du Quai Branly, Paris, 2010).
  3. Patrick Vinton Kirch On the Road of the Winds: An Archaeological History of the Pacific Islands before European Contact (Revised and expanded ed, University of California Press, Oakland, 2017) at 74.
  4. Patrick Vinton Kirch and Roger C Green Hawaiki, Ancestral Polynesia: An Essay in Historical Anthropology (Cambridge University Press, Cambridge, 2001) at 33.

archaeology and linguistics , while at the same time complicating and enriching it.

The study of the Lapita world always was and is a regional project, with participant scholars coming not only from New Zealand, the United States, and France, New Caledonia, French Polynesia, Hawai’i, Vanuatu, the Solomon Islands, Australia and New Guinea, but also from other countries in the Pacific and southeast Asian regions with Austronesian heritages of their own, such as the Philippines, Indonesia, Malaysia and Taiwan. Many of these scholars are themselves indigenous and include Māori, Kanak, Hawaiian, ni-Vanuatu, Solomon Islands, New Guinea, Tongan, and Fijian researchers. The discovery of Lapita has not only created a scientific foundation for the history of Pacific peoples, thus dispensing permanently with armchair theories about the origins of the Māori and the Polynesians. But it also allows for a re-envisioning not only of the past but also of the future of the Pacific and southeast Asian countries with a deepening sense of common descent from ancient cultures of great artists and navigators. My suggestion is that the sub- discipline of legal history ought to follow suit. It might well be that there is a foundational bedrock of indigenous thinking and conceptualisation that could quite justifiably be regarded as “legal”. Legal history might turn to a closer examination of the tenurial systems of all the southeast Asian and Pacific peoples, or perhaps the Austronesian peoples, and the common effects on all by European and American colonialism. In this respect the indigenous peoples of New Guinea, the Solomon Islands, Vanuatu, New Caledonia, “French Polynesia,” Fiji, Tonga, “Micronesia,” Samoa, the Cook Islands, Niue, and all the other places in the “sea of islands” – and perhaps, too, of their ancient homelands in Taiwan, the Philippines and other parts of island southeast Asia, have a shared history and shared experiences.

These incoming Neolithic people originated from Taiwan, their own ancestors being from China, then “admixed with the preceding Australo-Papuan populations who were dominant to as far north as southern China and Taiwan prior to the Neolithic.”44 The older Palaeolithic or “Australo-Papuan” peoples were those “most closely related phylogenetically and phenotypically to the Pleistocene/Holocene and modern indigenous populations of Australia and New Guinea”; the more recent, or Neolithic group, who might be called the Lapitans, was “most closely related phylogenetically and phenotypically to Late Holocene and modern indigenous populations of southern China and Mainland Southeast Asia”.45 Taiwan is pivotal in the Austronesian story.

  1. Peter Bellwood and others First Islanders: Prehistory and Human Migration in Island Southeast Asia (John Wiley & Sons, Hoboken (NJ), 2017) at 5.
  2. At 86. It must be noted, however, that there was certainly Neolithic (Austronesian/Lapitan) settlement around the coasts of New Guinea too, meaning that there are certain phylogenetic (and cultural and linguistic) differences between the people of coastal New Guinea and the New Guinea interior; the same goes for parts of the Solomon Islands.

It was from Taiwan that the Austronesians radiated in all directions and eventually to Polynesia. There is still much debate about the exact sequence of stops and starts, but the combined evidence of archaeology, linguistics and genetics generally supports the “out of Taiwan” or the “express train” (from Taiwan) hypothesis.46

The centrality of Taiwan as the homeland of Neolithic Austronesian- speaking peoples is clear: but where were the Austronesians before Taiwan? The obvious Austronesian homeland must be, and indeed (by common agreement) is southern China in the Neolithic era, that is during the first systematic cultivation of rice, the domestication of rice being, however, “a long process”.47 It seems to have been rice which fuelled the cultural energy and growing wealth of China and to the expansion of the peoples of southern China. Southern China in the Neolithic was, however, an area of great linguistic and ethnic diversity,48 and was the homeland for many Neolithic peoples, including the ancestors of the Thais, the Khmers, the Burmese, the Vietnamese, as well as the Austronesians. The Neolithic revolution in southern China lasted from roughly 8,000-5,000 BCE; with the expansion of farming and population along the Yangtze there was an outflow of peoples into mainland and island Southeast Asia, including the Austronesians, whose ancestors went first to Taiwan; the Austronesians of Taiwan went on to the Philippines, the next stop on the maritime journey south and east:49

  1. Stephen Oppenheimer “The ‘Express Train from Taiwan to Polynesia’: on the congruence of proxy lines of evidence” (2004) 36 World Archaeology 591.
  2. Zhang Chi and Hisiao-Chun Hung “The Neolithic of Southern China-

Origin, Development, and Dispersal” (2008) 47 Asian Perspectives 299.

  1. Bellwood and others, above n 44, at 232; here Bellwood notes that China “was not Sinitic-speaking during the Neolithic”; moreover, “China south of the Yangzi, prior to the Shang and Zhou dynasties (c. 1600–211 BCE), and certainly prior to the Qin and Han (221 BCE to 220 CE), can be regarded in cultural, linguistic, and population terms as part of Southeast Asia”: at 232.
  2. At 317. The Neolithic in China and Southeast Asia was succeeded by the Early Metal Age, beginning around 600–300 BCE in Southeast Asia; by 300 BCE objects of copper and bronze were widely present in Southeast Asia; the Early Metal Age lasted until the appearance of inscriptions in Sanskrit and the building of the earliest stone Buddhist and Hindu monuments (third and second centuries BCE). By that time Austronesian settlement in western Polynesia was long-standing. The Dong Son culture of Vietnam (500–300 BC) is the best-known Early Metal Age culture of Southeast Asia. The Lapitan Austronesian peoples and their Polynesian descendants did not manufacture metal objects. See Charles Higham The Archaeology of Mainland Southeast Asia: From 10,000 BC to the Fall of Angkor (Cambridge University Press, Cambridge, 1989); and John N Miksic and Geok Yian Goh Ancient Southeast Asia (Routledge, Abingdon, 2017).

From recent studies, it is evident that cultural expansion occurred from Taiwan into the northern Philippines at this time. This history of human movements can be reconstructed from linguistic studies. These movements of farming technologies and subsistence strategies respectively marked the spread of the Austroasiatic and Austronesian- speaking peoples.

As research has progressed, the importance of the first main way- station, the northern Philippines, is becoming increasingly clear, so much so that it might be better to replace the concept of “out of Taiwan” with that of “out of Taiwan and then out of the Philippines”. “The Philippine archipelago”, writes Peter Bellwood, “is of fundamental importance for understanding the genesis of Malayo-Polynesian [i.e., Neolithic Austronesian] dispersal through Indonesia and Oceania”.50 Not all the out-migrants from Taiwan and the Batanes made for the Philippines: others may have sailed in a completely different direction to the Ryukyu Islands, an archipelago that lies between Taiwan and Japan. The Ryukyus have indeed been described as the “northern frontier of prehistoric Austronesian settlement.”51 That possibility aside, most attention is now being paid to the Cagayan Valley in Luzon as a key waystation dispersal point for the migrating Neolithic farmers on the way from Taiwan into island Southeast Asia and to the Pacific beyond, the movement generally tracking south and east. The key piece of technology which facilitated these journeys was the waka or was referred to by cognate of ‘waka’, the double-hulled or outrigger sailing canoe, capable of sailing eastwards against the wind.

From the Philippines the Austronesian navigators migrated east and south, their path marked archaeologically by at first by the distinctive red- slip pottery, found in Taiwan, the Batanes Islands, the Philippines, and

– amazingly – the uninhabited Mariana islands of western Micronesia. There were also other movements southwards into Island Southeast Asia. Island Southeast Asia was, of course, not uninhabited. Very ancient peoples were already there, in at least some areas, and certainly in New Guinea and Australia. A very complex process of genetic, cultural and linguistic mixing now began. On the whole Austronesian languages not only prevailed but continued to expand, resulting in the linguistic patterns we see today, where, for example, Austronesian languages are spoken around the New Guinea coasts, but where the vast interior continues to be dominated by languages affiliating to the far older Papuan group, a huge group of languages that remains largely mysterious to specialists in historical linguistics. The Bismarck archipelago, east of

  1. Bellwood and others, above n 44, at 248.
  2. Mark J Hudson “The Ryukyu Islands and the Northern Frontier of Prehistoric Austronesian Settlement” in Philip J Piper, Hirofumi Matsumura and David Bulbeck (eds) New Perspectives in Southeast Asian and Pacific Prehistory (ANU Press, Canberra, 2017) 189. If the Ryukyus are the northern frontier of the Austronesian world, Aotearoa is its southern frontier.

New Guinea, dominated by the large islands of New Britain and New Ireland is of central importance in the wider story. It was here that the Lapita “community of culture” is usually thought to have taken shape (there are dissenters, however52). It took shape, of course, while remote Oceania was still uninhabited. Then, around 800 BC, the Lapitans went voyaging eastwards again, this time going much further into the Pacific than any humans had ever done. The result was one of the greatest feats of discovery and exploration of the ancient world. The Lapitans took eastwards their sailing canoe technology, their Austronesian languages, their rather haunting dentate earthenware pottery style, and much else besides.

It should be apparent that it is an oversimplification that the peoples of Oceania “came from” Taiwan; rather, the peoples of island Southeast Asia and Oceania are the products of an intermixing between the very ancient Pleistocene peoples and more recent Neolithic Austronesians. The Austronesians originated in Taiwan, moved from there to the Philippines, some went directly to Micronesia and others journeyed on through island Southeast Asia, intermixing with ancient peoples along the way. The Bismarck archipelago, east of New Guinea, has for some time been seen by specialists in Lapita archaeology to have been a cultural pressure-cooker where Austronesians, non-Austronesians, sailing technology and pottery-making brewed together in some manner and created the Lapitan ‘community of culture’. Then – something drew them eastwards. Around 1,000 BC, apparently skipping over, or past, the Solomons, Lapitan navigators ventured out as Oceanic peoples into the previously uninhabited islands of the Pacific around 1000 BC. Vanuatu, Bew Caledonia, Fiji, Tonga, and Samoa were rapidly discovered and settled. Aotearoa, Hawaii and Tahiti still remained undiscovered, populated only by birds.

4 From Island Southeast Asia to Oceania

Already the picture presented above, which has remained solidly established for some decades, is becoming destabilised. As a result of new research, it is becoming clear that the Marianas, that part of Micronesia closest to Philippines, was also an important waystation on the long “out of Taiwan” Austronesian journeying. It is now being suggested that the first part of Remote Oceania to be settled by seafaring Austronesians might actually have been the Marianas53, proving – if nothing else – that much remains to be learned about the history of prehistoric migrations in the Pacific. As Carson and Kurashina put it (2012), “[t]he earliest sites in the Mariana Islands represent the first successful settlement of the remote

  1. See Jim Specht and others “Deconstructing the Lapita Cultural Complex in the Bismarck Archipelago” (2014) 22 J Archaeol Res 89.
  2. See Mike T Carson and Hiro Kurashina “Re-envisioning long-distance Oceanic migration: early dates in the Mariana Islands” (2012) 44 World Archaeology 409.

Pacific”.54 Not only that, perhaps the Marianas was the cultural pressure- cooker, or was perhaps one of them, where the Lapitan community of culture was first assembled, and not the Bismarcks. Whether or not that is the case, the voyage to the Marianas from the Philippines was an awesome feat. The Philippines-Marianas journey involves sailing across no less than 2,000 km of open ocean, nearly twice as far as the longest Lapita-era voyage, that from Vanuatu to Fiji (900 km). (Of course, the later Polynesian explores sailed even further away.) The Philippines- Marianas voyage is now believed to have taken place around 1200-1000 BCE. Both that voyage and the voyage to Fiji were extraordinary, indeed breath-taking, feats of early long-distance sailing and navigation, but the voyage to the Marianas was the earlier of the two. The Philippines- Marianas journey was probably the longest sea journey undertaken by that time in human history. Notwithstanding the distance between the two archipelagos, the cultural connections between the Marianas and the Philippines seem clear, as both places share a particular pottery style, a red-slip ware with incised lines and dots (a bit like Lapita) with slaked lime in the grooves. Where these early settlers went to next is hard to know because in 1500 BC most of what we know as Micronesia could not be seen, sea levels at this time being 1.8 m higher than they are now.55

The indigenous Chamorro people of Guam and other islands in the Marianas descend from these early Austronesian migrants from the Philippines.56 At least, the Chamorro people have been in Guam for a very long time. Here, the cultural boundary between “Southeast Asia” and “the Pacific” is especially blurred. Micronesia is in “the Pacific” but closely tied to the “Southeast Asian” Philippines. Chamorro is certainly Austronesian language, but it is quite close to the languages of the Philippines but is somewhat different from Polynesian languages like Samoan and Māori (Chamorro, Māori, the languages of the Philippines, Samoan and Tongan are all cousins, however). To add to the complexities, there has long been an Austronesian people on the mainland of Southeast Asia, this being the Cham people of Vietnam and Cambodia, the heirs to the great Cham culture of antiquity, in its day a contemporary and rival of the Khmers of Angkor. Even today, the Cham language is still spoken by several hundred thousand people in Vietnam and Cambodia. Cham has long been a written language, and there are numerous Cham inscriptions written in a Brahmic script originating from India. It is the oldest fully attested Austronesian language. It opens new vistas to learn that inscriptions written in a language that is a distant cousin of Māori

54 At 412.

  1. Michael T Carson Archaeology of Pacific Oceania: Inhabiting a Sea of Islands

(Routledge, London, 2018) at 150.

  1. On the deep historical, linguistic and cultural connections between the Philippines and Guam see Ann M Pobutsky and Enrico I Neri “Cultural Integration and Separation: The Pre-Historical and Historical Links between Guam and the Philippines, or Where Did All the Filipinos Go?” (2014) 42 Philippine Quarterly of Culture and Society 1.

dating from the 4th century AD can be found carved in an ancient Indic script on ruined Buddhist and Hindu stone monuments in remote parts of Vietnam and Cambodia.

Here – and it is more than enough to think about for the time being – I will focus only on the Polynesians, who are direct heirs of the Lapitan navigators, albeit – it is important to emphasise – not their only ones. It remains meaningful, notwithstanding Lapita, to speak of Polynesia and Polynesians57, but it has now become clear that the Polynesians came from nowhere but Polynesia itself, as a proto-Polynesian culture, one of the heirs of Lapita, formed in Tonga and Samoa in the first millennium BC, and from there embarked on an amazingly rapid expansion out into the Pacific, sailing north, south and east to the Society Islands, Mangareva, Hawaii, Easter Island, the Cook Islands, and then to Aotearoa and the Chatham Islands, referred to as Wharekauri in the Māori language and as Rekohu in Moriori, and also getting as far east, as is increasingly accepted, to South America and perhaps even to California.

5 The Phylogeny of Law?

The term phylogeny involves explaining relationships in terms of descent, as in a family tree. Phylogenetic relationships are especially important in biological science – everyone has seen phylogenetic illustrations of human evolution or depictions of the vast and slow evolution of the dinosaurs. Plotting such phylogenetic relationships in the field of biological evolution is a task of immense difficulty: exactly what traits can be identified in species x to infer descent from species y? There is large scientific literature on this, of daunting rigour even to evolutionary biologists.58 Languages, too, are often analysed phylogenetically: Spanish is descended from Latin which is descended from the Italic branch of the Indo-European ‘family’ of languages; Māori affiliates to the eastern Polynesian branch of the Oceanic branch of the Malayo-Polynesian branch of the Austronesian languages, which in turn derive from an unknown ancestral language which emerged probably somewhere in China and which then became spoken in Taiwan. Constructing these relationships in linguistics is as challenging and technical in its way as is the case in evolutionary biology. But can laws, or legal systems, be grouped in this way?

Obviously they can be, to some extent; it is not at all uncommon to speak of the Civil law or Common law legal “families”. Mexican law,

  1. As Kirch, above n 42, puts it at 188, “the peoples and cultures of Melanesia are strongly multiphyletic”, but “only in Polynesia do we find a group of peoples and cultures who share a common history”. To put it another way, while “Melanesia” is not a defined culture area linked by a common history, “Polynesia” undoubtedly is.
  2. As at least one evolutionary biologist, Alexander P Boast, (my son) has confirmed. For an example, see Joseph Felsenstein Inferring Phylogenies (Sinauer Associates, Sunderland (Mass), 2004).

for example, derives (to a significant extent, at least) from Spanish or Castilian common law which derives (again, to a significant extent) from Roman law. That is a phylogenetic relationship, albeit a very simple and somewhat coarse one; where Roman law originated from is a matter of intensive debate, of course; but it is not hard to imagine that there are bodies of law ancestral to Roman law which created cognate laws to Roman law. Maybe other Latin-speaking city states had something like that at the time of early Rome, although if so, few traces remain. Close studies of, say, the Samnites, might well reveal, however, some institutions or rules that are cognate to those of the early Roman republic, perhaps pointing to some other source or founding state which Rome and Samnium had in common. Moreover, the Greek influence on Roman law is coming to be increasingly recognised, indicating that some aspects, at least, that “Roman” law connects to Greek legal and political thought and may in some sense descend from it. Or, to take another possibility, positive rules of law in the Bible, say in the Book of Deuteronomy, may be analysed as cognate to other bodies of law from Antiquity, recorded in texts such as the Code of Hammurabi, carved on a stone cylinder, or in cuneiform script on baked clay tablets. If so, as seems to be the case, it can be inferred convincingly that ancient Israel, Assyria, Babylonia or Sumer must have something historically in common.

It is known that the legal codes of the great city of Angkor in Cambodia originated in India. India and Angkor did not evolve Hindu law independently; rather people from India went to Cambodia, as historical records show. These simple examples, however, do seem to indicate that it is possible, to some degree, to imagine cognate legal systems, or legal systems fitted together phylogenetically. Legal systems, however, do not evolve on their own of course; the trajectory of Mexican law is easily explained from well-known historical events: i.e. the development of Roman provinces in the Spanish peninsula, the emergence of Christian sub-Roman kingdoms in Spain in late antiquity, the development of Roman law in the royal and ecclesiastical courts of Castile and Aragon, and the Spanish colonisation of the New World, leading in the end to Mexico’s emergence as a modern independent nation. Its neighbours, Guatemala and El Salvador have very similar laws and legal systems but not identical ones, as the statutory and constitutional development of these countries in modern times has not been identical.

Countries can be close together geographically but very different legally: Belize shares a boundary with Mexico, but the law of Belize derives from English Common Law. The law of Belize is much closer to New Zealand law, on the other side of the globe, than it is to that of its neighbours, Mexico and Guatemala. Parallel laws or legal concepts might, then, point to (to some degree) movements of peoples, as parallel languages might; as people migrate by land or sea, to look at things from another direction, they tend to take their laws and languages with them, as English colonists brought English Common Law and the English language to Aotearoa and to Belize, as the Castilians brought theirs to Mexico and Central America. Different laws are explicable historically. A

visitor from outer space who studies the law of Belize and New Zealand might well conclude that Belize and New Zealand must have something historically in common, for their legal similarities to make sense, which conclusion would of course be correct: Belize and New Zealand were both former British colonies. Shared laws, like shared languages, can point to shared histories. Just as in biological evolution, however, a particular legal system might diverge from its origins sufficiently radically to create a new evolutionary pathway.

However, legal systems cannot be grouped into precise phylogenies in the way that is possible for biological species, for the same reason that languages and cultures can never be sorted into precise phylogenetic relationships. A species cannot breed with another: that is inherent in the concept of ‘species’ itself. But, of course, cultures can certainly intermix with others, and so can languages, especially through the process of creolisation: one language might adapt vocabularies and even grammatical rules from another, or even several others, to create a new language that might be unintelligible to speakers of the parent languages. Something like creolisation might also happen with laws and legal systems. This may be happening in New Zealand at the present, as Māori legal concepts are slowly becoming incorporated into New Zealand Common Law; in several generations’ time New Zealand law might become a system of its own, more radically separate from the other Common Law countries, which might well diverge down their own pathways as well. New Zealand’s unique system of accident compensation might eventually develop to the extent that New Zealand’s law of compensation for personal injury no longer appears to descend in any meaningful way from English law, as has its Torrens system of title cut it – and the other Torrens jurisdictions – adrift from much of English land law. Of course, this, too, is happening already, even in core fields such as contracts and tort. English Common Law might become simply ancestral to New Zealand law in the sense that Roman law is historically ancestral to Mexican law but is already of cultural and conceptual interest only, not a routine source of legal doctrine. A legal family, like any other kind of family, can drift apart. New Zealand English might go down a divergent pathway too, as might other dialectical varieties, and a family English-derived but unintelligible languages might emerge, in the same way that French and Portuguese derive from Latin.

6 Ancestral Polynesia

All Polynesians know where their ancestors came from: they came from somewhere else. This ‘somewhere else’ is a homeland, known variously as Hawaiki or in some contexts as Pulotu.59 Traditional history does not give the impression that Hawaiki is a mythological place, a home

59 On Pulotu see Daniel Frimigacci Archéologie de Uvea Mama’o (Institut d’archéologie de la Nouvelle-Calédonie et du Pacifique, Nouméa, 2016) at 15.

of the gods, a place beyond time and history: rather, it was a real place, which had real politics (many of the waka traditions testify to political tensions as a principal reason why people decided to leave). People did not migrate metaphorically, or by divine intervention; they really left, in real ships; the names of the ships and of their commanders remain known to this day, and these journeys continue to shape traditional political organisation in Polynesia, as is certainly the case in Aotearoa. There is now an increasing convergence between these traditional narratives and archaeology, Hawaiki is identified as a discrete region of Western Polynesia, essentially present-day Tonga, Samoa, and some parts of Fiji. As P.V. Kirch puts it, “although Hawaiki is deeply ingrained in Polynesian myth and tradition, it is more than just a mythic place”.60 The homeland of Hawaiki “included the Tongan chain stretching south to north from Tongatapu up through the Ha‘apai and Vava‘u island groups, to tiny Niuatoputapu as well as Samoa, Futuna, and ‘Uvea”.61 In this area the incoming Lapitan discoverers and settlers remained from roughly 1,000 BC to 1,000 AD, forming a great and complex culture,. During this long period there were, of course, changes in material culture. Dentate-stamped Lapita ceramics ceased to be made and were replaced by plainware bowls; Tridacna clam shells were no longer used to make adzes and instead stone adzes were made from basalt and other sources. The people spoke a language from which all the closely related Polynesian languages descend, known as Proto Polynesian, bifurcating in turn into proto eastern and western Polynesian. Māori descends from the former. Two millennia is, obviously, a long time, long enough for a refined and complex body of customary law to grow and flourish.

The pivotal importance of the Tonga-Samoa-Fiji zone for the prehistory of the rest of Polynesia has been known for some time. In the 1970s P.V. Kirch conducted intensive excavations on the island of Niuatoputapu in northern Tonga. Kirch and his colleagues found large amounts of Lapita pottery as well as much other material and the remains of monumental architecture. Kirch’s work showed that Tonga possessed an unbroken cultural sequence beginning around 1,000 BC. As Kirch puts in his autobiography:62

In spite of being one of the smallest of the Western Polynesian islands, Nuiatoputapu’s unbroken cultural sequence encapsulates the emergence of an Ancestral Polynesian culture from earlier Lapita origins. Niuatoputapu and other islands of Western Polynesia such as Futuna, ‘Uvea, Samoa, and Tongatapu were the original Hawaiki, the homeland in which the early Polynesian language and culture developed.

60 Patrick Vinton Kirch Unearthing the Polynesian Past: Explorations and Adventures of an Island Archaeologist (University of Hawai‘i Press, Honolulu, 2015) at 219.

61 At 219.

62 At 115. See further Patrick Vinton Kirch Niuatoputapu: The Prehistory of a Polynesian Chiefdom (Burke Museum, Seattle, 1988).

Interconnections between Fiji, Tonga, and Samoa may well have been continuous, or near continuous, since the time of the Lapita horizon of around 1,000 BC. According to Ethan Cochrane:63

Prior to extended interactions with Europeans beginning in the nineteenth century, parts of Fiji were intertwined politically and economically with Tonga, as were parts of Sāmoa. Probably by about 500 years ago Tongan populations visited and sometimes resided in Viti Levu, parts of Vanua Levu, and the Lau Islands, with the local Fijian and Tongan chiefly lineages intermarrying. In time, trees for canoe building, sandalwood, and red bird feathers were taken from Fiji in exchange for valuables, such as fine mats, produced in Tonga. The political and economic relationships between Fiji and Tonga are also recorded in oral tradition and place names, and in chiefly titles.

Perhaps these interrelationships have even older and deeper roots.

Putting the complex question of Fiji aside, typically seen as an ‘in- between’ zone between New Caledonia and Vanuatu to the west and Samoa and Tonga to the east, it has long been understood that Tonga and Samoa form a broadly continuous archaeological and cultural region, both first settled at the same time by Austronesians who made Lapita ceramics and which possess many cultural and linguistic features in common, including an amazingly rich and complex culture at the present time with intricate systems of titles and governance. In Samoa, in fact, “when properly understood and read, genealogies, honorifics, house site names, land titles, villages, and district traditions incorporate and document a pre-European Sāmoan as succinctly as any archival record”.64 The traditional sources in Tonga are no less rich.

Tonga and Samoa together form the easternmost section of the vast Lapitan community of culture, the first settlement in this area probably being on Tongatapu around 3,000 years ago. Both Tonga and Samoa developed powerful chieftainships in antiquity capable of impressive monumental architecture, as demonstrated by the massive tombs built at the chiefly centre of Lapaha on Tongatapu or by the huge Pulemelei mound, or citadel, on the southern coast of Sava’i. The “construction of monumental architecture including chiefly sitting platforms, elevated house mounds, chiefly tombs, pigeon-snaring platforms (Tonga), star mounds (Sāmoa), memorial stone uprights, and various other features represent a capital intensification clearly demarcating the position and power of chiefs.”65 It has been argued that ancient Tonga, in fact, developed sufficiently to become an ‘archaic’ or ‘primary’ state; others

  1. Ethan E Cochrane “Ancient Fiji: Melting Pot of the Southwest Pacific” in Ethan E Cochrane and Terry L Hunt (eds) The Oxford Handbook of Prehistoric Oceania (Oxford University Press, New York, 2018) 206 at 217.
  2. David V Burley and David J Addison “Tonga and Sāmoa in Oceanic Prehistory: Contemporary Debates and Personal Perspectives” in Ethan E Cochrane and Terry L Hunt (eds) The Oxford Handbook of Prehistoric Oceania (Oxford University Press, New York, 2018) 231 at 245.

65 At 241.

have written of a Tongan ‘maritime empire’. Ancient Tonga was a “durable autonomous society” that was “large in territorial extent and population”.66 Ancient Tonga was a kingdom, headed by the leader of the dominant lineages, the Tu‘i Tonga, who can be thought of as a religious and cultural head of state, supported by a high chief known as the hau, the secular head of state, or co-ruler. According to Robert J. Hommon:67

The co-rulers [of Tonga] exercised central authority legitimized by divine ancestry and political power, backed by the occasional application of force. The hau, in his capacity as active ruler, commanded at least six strata of bureaucrats who carried out tasks including tax collection and state rituals such as ‘inasi and royal funerals.

It has not been proposed that primary states formed in Samoa, but certainly the latter possessed very powerful chiefdoms.

But P V Kirch and Roger C. Green have taken these recognised affinities a step much further by arguing that Samoa and Tonga together form an ‘ancestral Polynesia’ which can with a high degree of plausibility be equated with the Hawaiki of Polynesian traditional history. In 2001 the remarkable book by Kirch (University of California, Berkeley) and Roger

C. Green (University of Auckland) appeared, Hawaiki: Ancestral Polynesia:

An Essay in Historical Anthropology68 in which it was argued at length that Hawaiki was certainly a real place. But Hawaiki, Ancestral Polynesia went much further than that. Much of the book was highly technical, with long chapters devoted to the ‘phylogenetic model in historical anthropology,’ to demonstrating that Polynesian cultures were phylogenetically linked, and to other methodological questions.

The main argument of the book was, however, very clear and easy to grasp. First, not only was Hawaiki a real place, but also, with due care and effort it was possible to learn much about the culture and institutions of Hawaiki, or ‘ancestral Polynesia’. The basic method the authors employed was linguistic, which they refined to a specific analytical technique that they referred to as ‘triangulation’, or as ‘triangulation within a phylogenetic [family tree-like] model’. The term ‘triangulation’ is a kind of metaphor adopted from surveying (which Professor Kirch happens to be very knowledgeable about) and conveys the idea of using converging lines of evidence to fix a particular factual point. The authors explain:69

We seek to develop a triangulation method in which the subdisciplines of historical linguistics, archaeology, comparative ethnology, and biological anthropology independently contribute their data and assessments to

66 Robert J Hommon The Ancient Hawaiian State: Origins of a Political Society

(Oxford University Press, New York, 2013) at 198.

67 At 198.

  1. Kirch and Green, above n 43. See also Patrick V Kirch and Roger C Green “History, Phylogeny, and Evolution in Polynesia” (1992) 33(S1) Current Anthropology 161.
  2. Kirch and Green, above n 43, at 42.

the common objective of historical reconstruction. We derive the label from a surveying metaphor, which should be immediately understood by most field archaeologists at least. In the classic method of survey by triangulation, sightings are taken from two or more points along a known baseline to an unlocated point which one wishes to fix in space.

In their specific task of reconstructing Hawaiki or ancestral Polynesia, the authors use lexical reconstruction and meaning, ethnographic evidence, and archaeology to cross-check (or ‘triangulate’) one another in order to reconstruct a particular aspect of the culture and society of ancient Hawaiki. It is probably best to explain this by means of some concrete examples. One example is the word ‘ariki’, meaning hereditary, or sometimes especially senior, chief. In Samoa the word is ali’i, in Tonga, ‘eiki, in Tokelau aliki, in Easter Island ariki, as indeed it is in the Māori language, and in Rarotonga. In Hawaiian the word is ali’i. Similar cognates are found all over eastern and western Polynesia.70 By applying various techniques of lexical reconstruction, Kirch and Green deduce that the word in the ancestral Polynesian language, which we may characterise as the language of Hawaiki, was *qariki, or something close to that.

But it is not merely a matter of words. There are also questions of social institutions and of meaning. If there was a word that meant aristocrat or senior chief in Hawaiki, it can be inferred that the institution of chieftainship, which is a cultural, political, and indeed legal concept, was likewise present in ancestral Polynesia. We can infer by this process that Hawaiki had high ranking chiefs. This simple example shows that by means of this comparative and linguistic technique quite sound inferences can be drawn about the social organisation of ancestral Polynesia. The way this can be ‘triangulated’ is by demonstrating by means of archaeology that there is material evidence pointing towards powerful chiefdoms that can be found in Tonga and Samoa at the present time, as indeed there is, supplemented by oral narratives referring to the actions and achievements of the great ariki/ali’i etc. of the past. My suggestion is that sound inferences about law, or legal rules, can be drawn in the same manner, provided we are working with a broad and anthropological concept of law rather than with a narrowly positivist one.

7 The A.D. 1000 Event

After two millennia in the ancient homeland of Samoa-Tonga-northern Fiji, which we can call, for convenience, ‘Hawaiki’, the people of this region, now no longer proto-Polynesians but simply Polynesians, burst out from their homeland in an astonishing sequence of voyages of discovery and colonisation, moving east and south to islands that had been uninhabited until that time.

These voyages, the ‘AD 1000 event’ resulted in the discovery and

settlement of Tahiti, the Marquesas, Aotearoa, Rapa Nui, and Hawai’i

70 At 229–230 (table 8.9).

over an extraordinarily short period of time.71 The reasons for this apparently mass departure from Hawaiki and its exact chronology, remain much debated, although the general sequence has now become relatively clear. All of these places were settled by Polynesians belonging to a fully formed Polynesian culture and occurred around the same time. Aotearoa was reached around 1290-1310, settled by people who were in nearly all respects the same as those who settled Rapa Nui, Tahiti, the Marquesas, the Cook Islands and other parts of Polynesia at roughly the same time. The Polynesians brought with them to Aotearoa their eastern Polynesian dialect, their Polynesian mythology, their memories of the homeland of Hawaiki, their skills in making massive stone adzes (as found, for example at Wairau Bar and now on display in the Canterbury Museum) – and their legal ideas. Hence, the close linguistic and cultural affinities between all the islands of the eastern Pacific. As P V Kirch puts it, these great journeys involved two kinds of voyages, “the real voyages of history and the intellectual voyages of the mind”.72

While the eastern Polynesian peoples are closely culturally and linguistically related, the cultures of eastern Polynesia are manifestly not identical, a reflection perhaps of the timing of first arrivals but probably more importantly of the diversity of the uninhabited islands they found. The diverse range of environments settled by eastern Polynesians includes high volcanic islands such as Tahiti and Rarotonga, snow-capped mountains in Aotearoa and Hawai‘i, raised coral (makatea) islands such as Niue and Mangaia, and coral atolls such as Aitutaki. Complex interactions between peoples, islands, and resources generated much diversity within an overarching linguistic and cultural framework. Even within the boundaries of present-day New Zealand there was diversity. The Moriori people of the Chatham Islands (Rekohu, or Wharekauri) are today regarded as culturally and linguistically distinct from the Māori peoples of mainland Aotearoa. The distinctiveness of the Moriori can most obviously be explained by centuries of isolation on their remote archipelago, with its limited resources and demanding weather conditions. While most eastern Polynesians built architectural monuments and public works, these are quite diverse across Polynesia and range from the stone-built marae of Tahiti and Mo’orea to the heiau of Hawai‘i, the great pa fortresses of Aotearoa and the iconic moai of Easter Island.

Anyone who has grown up in New Zealand will be aware of the names of some of the principal waka that according to Māori tradition voyaged to Aotearoa (Tainui, Te Arawa, Aotea, Takitimu, and others) and their living consequences for Māori political and cultural geography to this day. Most New Zealanders, pakeha as well as Māori, know that the Tainui iwi (tribes) come from the Waikato region, and the Te Arawa

  1. On the voyaging era see KR Howe (ed) Vaka Moana: Voyages of the Ancestors (David Bateman and Auckland Museum, Auckland, 2006); and Kirch, above n 42, at 184–268.
  2. Kirch, above n 42, at 2.

groups from Rotorua. Canoe (waka) traditions can be amazingly concrete and specific, and also complex. One particularly complex district in Aotearoa is Muriwhenua (“The end of the Land”), the Aupouri peninsula region in Aotearoa’s furthest north. Oral testimony given to the Waitangi Tribunal referred to no less than ten separate waka in this region, mostly known only in Muriwhenua and nearby districts. The Waitangi Tribunal discussed the canoe traditions of Muriwhenua in its Muriwhenua Lands report (1997), and emphasised both the particularity of these traditions and also the complexity of descent lines in Muriwhenua:73

The voyages were described with such particularity that names are given for each rower’s seat on Kupe’s canoe, representing a millennium of detailed corporate memory. The same accounts establish the complexity of Muriwhenua lineages. Genealogies trace from at least 10 canoes that made landfall in the district...They also describe relationships with hapu throughout Aotearoa, even the South Island, as some of the crew, or their descendants, travelled on to establish settlements elsewhere.

While the notion of a single settlement of Aotearoa by a “Great Fleet”, still taught to primary school pupils in New Zealand schools in the 1960s74) has long been discarded, the intensive study of waka traditions and descent lines is still pursued by knowledgeable people today, and which is generously shared in substantial publications for all to read. This is not seen as a secret form of knowledge, but rather as a public and contestable one – indeed, as history. Māori culture, as modern scholars such as Atholl Anderson have insisted, was, like all Polynesian cultures, richly historicised. Māori certainly did not see themselves as living a timeless anthropological present. On the contrary, Māori knew that they had a history and located themselves in historical time and as connected to complex and contested but intelligible pastas, in Aotearoa and beyond.75 In Anderson’s view, “history mattered for Māori and Moriori, both philosophically as a duty toward the ancestors and pragmatically as a means of contemporary advantage in gaining and holding status and property.”76 All Polynesian societies, and in this Māori society is no exception, distinguish carefully between rights deriving from male and female descent and those descending from older and younger siblings, teina and tuakana. These differentiations can be said to be legal in the strict sense and can at times relate to the rights of entire iwi and hapu

  1. Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 17.
  2. As I can recall. In fact, it was not only taught as history but also in Māori action songs which all primary school students, Māori and Pakeha (at least at my primary school) learned to sing and perform – rather ineptly in my case.
  3. This is a characteristic of Polynesian societies generally. For a classic study of Polynesian historical narratives, see Raymond Firth History and Traditions of Tikopia (Polynesian Society, Wellington, 1961).
  4. Atholl Anderson “Speaking of Migration” in Atholl Anderson, Judith

Binney and Aroha Harris (eds) Tangata Whenua: A History (Bridget

Williams Books, Wellington, 2015) 33 at 33.

and can derive from events deep in the past: – and in that sense are legal

and historical.

The basic archaeological chronology of Polynesian settlement was clarified in a much-cited paper by Wilmshurst et al. (2011) which established that at the end of the “long pause” (1,800-2000 years from 1000 BC to 1000 AD), Polynesian expansion was comparatively late in world-historical terms and astoundingly rapid (as opposed to a slow island-by-island) process of exploration of settlement.77 This paper was based on a detailed review and updating of the Carbon-14 dates for first settlement, the authors drawing attention to “improvements in reliability of radiocarbon dating, including greater rigour in the selection, together with a rapid increase in the total size of the radiocarbon date assemblage for East Polynesia”78. This review showed that settlement was late, compressed, and expansive. It is not really an exaggeration to characterise Polynesian expansion into the Pacific both as complete (there was seemingly no island that the Polynesian navigators from Hawaiki did not find, including such specks in the ocean as Pitcairn and Norfolk Island) and as explosive. As Wilmshurst et al. put it:79

Migration into eastern Polynesia began after a 1,800-y pause since the first settlement of Samoa, ~800 B.C., which implies a relatively sudden onset of whichever enviro nmental or cultural factors were involved. Our results show that, quite soon after reaching the central islands, Polynesian seafarers discovered nearly every other island of the eastern Pacific within about one century, a rate of dispersal unprecedented in oceanic prehistory.

Within this compressed timescale, some places were found earlier than others, the earliest archipelago to be discovered from Hawaiki being the Society Islands (Tahiti, Mo’orea etc.), but the overall timescale, one century, is instantaneous for all practical purposes. The rapidity of settlement explains the close linguistic and cultural affinities of all the eastern Polynesian peoples despite the great ocean distances that separate many of them. The consequences of the compressed timescale are clearly explained by Wilmshurst et al.:80

The substantially shorter chronologies may now resolve existing paradoxes or challenge alternative views about the prehistory of East Polynesia. For example, the earliest presence of sweet potato (Ipomoea batatas) in Mangaia, Cook Islands, dated to A.D. 1210-1400 and was regarded as a late occurrence, and similarly late dates on sweet potato from Hawaii could now actually represent an initial introduction of sweet potato to these islands with colonization, and to East Polynesia more generally, regardless of whether Polynesians reached South America or Amerindians reached Polynesia. Conversely, linguistic similarity, often

  1. Janet M Wilmshurst and others “High-precision radiocarbon dating shows recent and rapid initial human colonization of East Polynesia” (2011) 108 PNAS 1815.

78 At 1819.

79 At 1818.

80 At 1818.

used to trace phylogenetic relationships of populations in East Polynesia according to a longstanding model of relatively slow, incremental expansion now needs to be reconsidered in terms of specific founder effects and isolation, especially in the case of Rapa Nui.

Such linguistic diversities as there are in eastern Polynesia, in other words, may not in fact tell us anything about the precise sequence of settlement. In Aotearoa, the supposed differences between “Moa-hunter” or “Archaic” Māori in the South Island as contrasted with the North Island no longer make sense, settlement of both islands, as well as the Chatham Islands, being generally contemporaneous. In some areas the Polynesian immigrants hunted moa, where there were any, and in others they did not.

8 Rāhui: A Case Study

In Kirch and Green’s view, “because the phylogenetic relationships between Polynesian cultures are now well understood,” and because it is possible by means of both archaeology and linguistic to reconstruct so much of the ancestral Polynesian (‘Hawaikian’) culture, it follows that “prehistorians are able to make reasonable assertions about the persistence of specific ancestral patterns in descendent groups”.81 There seems to be no reason why this reasoning cannot be applied to fundamental concepts that can classified as ‘legal’, for example the institution of rahui, with its various cognates, meaning a specific type of prohibition against taking valuable resources for fixed periods.

The present author is not in a position to fully ‘triangulate’ the legal concept of rāhui because archaeological evidence is lacking, but there is at least a workable amount of material that can be drawn from linguistics, comparative ethnology, and oral testimony from Polynesian people as recorded in Court records and other documents. Rahui, ra’ui, and other variant names (prohibitions) are known all over Polynesia.82 The word rāhui, well-known in Aotearoa, meaning a restriction or prohibition, is found also (according to the POLLEX database) in the Moriori, Easter Island, Penrhyn (northern Cooks) Tahitian, and Manihiki-Rakahanga83 languages; cognate forms with the same meaning are raa‘ui (Rarotonga), tapui (Tokelau), and kaapui (Tuvalu). Rāhui are still used as a means of environmental management and perhaps, too, for their cultural significance, a means of cultural self-assertion. The prohibition often arose as a result of a public ceremony and was marked by a special marker post (pou rāhui). In historic times, their utilisation can be explored through

  1. Kirch and Green, above n 68, at 168.
  2. See Tamatoa Bambridge (ed) The rahui: Legal pluralism in Polynesian traditional management of resources and territories (ANU Press, Canberra, 2016).
  3. “Pollex Online” <>. See Simon J Greenhill and Ross Clark “POLLEX-Online: The Polynesian Lexicon Project Online” (2011) 50 Oceanic Linguistics 551.

such documentary sources as the records of the Native Land Court in Aotearoa and equivalent tenurial processes elsewhere in Polynesia, including the records of the Hawaiian Land Commission and of the Native Land Court in the Cook Islands and Niue (New Zealand having exported its Land Court system to its Pacific colonial dependencies). Practices very closely affiliated to rāhui in Aotearoa existed elsewhere in Polynesia, including the Polynesian outlier island of Tikopia, known to anthropology from decades of intensive study by Sir Raymond Firth, where the process was referred to making land or parts of the sea tapu.84 Making a particular place temporarily tapu is basically the consequence of rahui, ra’ui, kahui, etc. elsewhere. According to Firth:85

Exercise of authority by the chief in order to guide the utilization of economic resources by his people is seen particularly in the imposition of a tapu. Each of the four chiefs has under control one of the major foodstuffs, the sanction for this lying in the religious sphere. This allows him from time to time to institute a “close season” for the product in question, and the restriction is obeyed not only by his own clansmen but by all people who have an interest in lands where the tapu operates.

Firth had been able to observe this process at work in Tikopia, and

describes it with characteristic care and detail:86

About a year before I arrived in Tikopia the Ariki Tafua judged that the supply of coconuts was getting scarce, so put a mark of tapu in Rofaea. This was removed shortly after I came, and the occasion was celebrated by a feast. The sons of the Ariki collected food from his orchards, Pa Saukirima and Pa Fenuatapu brought contributions from Namo, Pa Tekaumata his son-in-law and Pa Motuangi his sister’s son also assisted, and other people of his clan and his district. Before the food was prepared, the chief said to the assembled company, “the tapu is lifted,” which gave freedom to all to utilize the coconuts from that area once again.

In Firth’s account, the tapu was not always observed, but not doing

so could lead to trouble or at least embarrassment:87

A conservation tapu is not inviolable. If a man’s orchards happen to be concentrated in a single area affected by the restriction, then he may take his coconuts, prepare a proportion of food for the chief and go to him. When the chief has finished eating, the man says, “I have taken coconuts from ... for food.” ... The act of notification does away with any offence. Sometimes, however, the tapu is broken secretly, without attempt at advising the chief. This does not represent a denial of his right to impose the restriction, but a recognition that the case for breach is not a good one, and that he would probably not approve. To avoid censure and shame the owner has to resort to furtive action.

  1. Raymond Firth We, the Tikopia: A Sociological Study of Kinship in Primitive Polynesia (George Allen & Unwin, London, 1936) at 376–377.

85 At 376–377.

86 At 377.

87 At 377.

As in all societies, legal rules can be irksome and not everyone complies with them, but failing to do so can come at a cost.

Firth has also written extensively about rāhui in Aotearoa. He distinguishes between rahui which were set with specifically “offensive” purposes, imbued with magic or incantation that was specifically intended to cause serious harm and which needed to be counteracted, and what Firth sees a milder form, used for economic and other purposes,

i.e. the more familiar type of rāhui we have been considering here. According to Firth:88

The other type of rahui was much less severe in its supposed effects, and in itself was not particularly dangerous to life, since it was set up without the deadly soul-destroying spells. It was instituted as a protection for actual rather than potential fertility resources, and took the form of a mild prohibition, a ban placed on taking the products of any particular area of forest, stream, or fishing ground. It might be imposed for a variety of economic or social grounds, Thus if a chief were drowned in a river, his people would probably place a rahui on the surrounding area to prevent any person taking fish from those waters. Such a man being tapu, to eat food from that river would be an act of degradation of his status, and would be tantamount to a direct insult to his family. For a variety of similar reasons a rahui might be imposed.

Often the rāhui might be imposed for “purely economic” reasons:89

To save the resources of a shell bank, or a patch of forest from becoming unduly depleted, the chief of the hapu might proclaim a rahui, in consequence of which no one would be allowed to take supplies therefrom for a time. He would set up a post and perhaps hung an old garment thereon as a sign of the prohibition. Sometimes these rahui were merely proclaimed by word of mouth. The institution of a rahui of this type was the privilege of a chief, and is observance was a tribute to his rank and status,

The records of New Zealand’s Native Land Court process, which has left behind by far the richest historical documentation concerning title remodelling of anywhere in the Pacific, provide a wealth of information about rahui. One example is the Ninety-Mile Beach title investigation, heard at Kaitaia in 1957. Several claimant witnesses described rāhui in depth in the course of the proceedings. Mr Rarawa Kerehoma informed the Court that he affiliated to the Ngati Moetanga hapu of Te Rarawa iwi (tribe).90 He described the exploration of the coastline by the great ancestor Tohe. Mr Kerehoma also spoke about rāhui on the coast, linking this practice to the ancestor Poroa:

88 Raymond Firth Economics of the New Zealand Maori (2nd ed, Government

Printer, Wellington, 1972) at 259.

89 At 259–260.

90 These excerpts from the testimony relating to rahui in the Ninety-Mile Beach title investigation are all to be found in the record of the testimony given in that case in Ninety-Mile Beach Title Investigation (1957) 85 Northern MB 7 (85 N 7).

When Poroa died all things pertaining to the ocean in vicinity of beach were set apart under reserves. These reserves were deemed sacred for a period of one year. No one was allowed to get any food from the sea. When [the] was up the restriction was lifted. This is [the] custom of the Māori people, it was

Mr Hohepa Kanara, also a local kaumatua, was another who gave extensive evidence in this great case (which made its way through the New Zealand court hierarchy from the Māori Land Court to eventually reach the Court of Appeal). Mr Kanara gave his affiliation as the Ngai Takoto section of Te Aupouri. He said that he used to live with his parents on the beach at a place known as Waikanae. “There were,” he said, quite a few people living between Scotts Point and Ahipara.” The people “lived on the beach because they were dependent on seafoods.” “That was in my time.” He went on to describe rahui, explaining that they were imposed from time to time for different reasons:

I saw some of the customs on the beach – rahuis. There are many reasons for them. If a person drowned at sea a rahui would be made within the area he was drowned for a certain period. If food from [the] seabed became exhausted a rahui would be created so as to make allowance for pipis etc to replenish their supply. A chief could effect a rahui by declaring a certain area subject to the mana of a rahui – during this period no one can enter into or do anything until such time as the restriction has been lifted. These are some of the reasons I know – once a place is declared subject to the mana of a rahui no person is allowed to trespass. There are places where rahui made as regards birds. The Māoris had a custom of declaring a certain portion of the beach as subject to a rahui – birds of certain kinds would gather together at a certain place a rahui, ceremonies at which rahuis were created but I do not know what rites were adopted at these ceremonies.

Mr Kanara made it clear that a rahui was by no means a simple matter of a chief striding out to the beach and issuing a proclamation, but were, rather, announced at collective assemblies at which the rahui ceremonies would be performed, thus ensuring that the rahui was widely known:

I was too young at the time to pay attention to the rites performed. The people would assemble wherever a rahui was intended to be created. If a rahui [was] intended to cover an area on the water the people would assemble there.

Mr Rahera Mare Pohatea of Te Aupouri described a ceremony that he had seen at Maunganui at which a rahui was created following a death by drowning at sea. The rahui extended “from high water mark to the depth of the ocean”. He said that he had been living on the beach with his family at the time. The rahui lasted for six months. There was a separate ceremony and public gathering when this rahui was lifted, at which he had also been present. The process was obviously very public and governed by rituals. That will have made it very difficult for anyone to declare that they had not been aware of the rāhui.

Another witness in 1957, James Bowman, was Pakeha. At the time of the case he was a retired farmer living at Herekino on the western coast

of Muriwhenua. Mr Bowman described his early life in the area with his family, one of the few Pakeha families living permanently at Ahipara in the early days. He described how the Māori chiefs controlled and managed the beach, and described rāhui in detail. At the time he gave evidence he was 83, and he was describing his recollections of life along the beach in the 1880s. His evidence described a highly controlled and managed environment; control of the beach was strict and not in any way casual. Mr Bowman’s evidence about rahui, narrated from a Pakeha standpoint, is very interesting. He remembered very clearly a Te Rarawa rangatira named Mumu, an impressive man with a prominent tattoo, a very visible and somewhat intimidating presence on the beach. Mumu exercised a very active kind of surveillance and control of the beach. No one was free to come and go as they pleased:

No Pakeha missionary families living there (Ahipara) in my young days. They came out to the beach only when I was a young man. They could not please themselves as to when and where they went. A chief called Mumu was in charge. He was the head one of the whole lot – there were a lot of chiefs. Mumu controlled very nearly the whole beach and the land too. There were raupo huts all over the place right around the coast right along Reef Point way.

Bowman explained that he found the watchful presence of Te Mumu and the other chiefs rather intimidating; as a child he was intensely aware that harvesting resources along the coast was not a free-for-all in any way:

Mumu and his brothers and cousins were in charge up to Hukatere. We couldn’t do what we liked – we were frightened of them – we wouldn’t dare to walk and trample over it.

Bowman explained that the rāhui was very visibly marked by using large, decorated posts. Sometimes a rāhui might be used to commemorate the death of an important chief:

I saw rahuis on the beach – when the old chief Mumu died they buried him and put up a rahui – they put up a pole a good thick post, and they carved some sort of tattoo on it – when they put this rahui up it was for one part of the coast – they left the other part open. The post for Mumu’s rahui was put in at high water mark. The people knew the post was up to close the coast for shellfish and mussels. One post was 2-3 miles north of Ahipara and the other was the other side of Reef Point at Otia. Mumu was not drowned, he died of old age. It was Maori custom that if a chief died, they closed part of the beach to fishing. The people were not allowed to fish in the sea off the beach either. There were no poles in between these two but the people knew there was a rahui. If anyone came along and broke the rahui they would make him pay. They might chuck him in the tide.

Detailed studies of rāhui elsewhere in the eastern Polynesian world show that the basic purposes of rahui and the means of establishing and of lifting them were basically the same as in Aotearoa. The similarities between Aotearoa and the island of Anaa (Tuamotu), thousands of kilometres apart, are quite marked. Rāhui are also known in the Marquesas (kahui) and on Easter Island. The close similarities and the

sheer distances involved must indicate that the institution, or legal practice, of rāhui is likely to be very ancient; most logically it must derive from what might be called ‘archaeological Hawaiki’ (Tonga-Samoa-Fiji); it must have developed in that region to have achieved its final form around c. AD 1,0000, the general time of the great Polynesian voyages of discovery. As P V Kirch puts it, writing of his reconstruction of the culture of ancient Hawaiki by “triangulating” the evidence of archaeology, linguistics, and ethnography, “widely shared traits are likely to be old, inherited from the ancestral culture, whereas traits found only in one or a few [Polynesian] islands are most likely later innovations”.91

The fact that rāhui are practised widely in eastern Polynesian societies does not, of course, mean, that practices, rituals, and enforcement of rāhui were everywhere the same. On Anaa (in the Tuamotus), the rites relating to the lifting of a rāhui were associated with special-purpose stone-built marae. According to Frédéric Torrente, author of a detailed study of rāhui in the Tuamotu archipelago, (a study based on oral intensive oral interviews with local kaumatua and early documentary records):92

These rites were practised on Anaa in another type of walled enclosure called marae vatiga no te haga varua o te po, literally ‘shrine for food offerings to the forces of the invisible world’. This was a small marae demarcated by a wall of ordinary stones, a wooden post (named kehō planted exactly in the centre. The kehō had a horizontal platform fixed at its summit on which the food offerings for the gods (atua) or the ancestors (tuputupūa) were deposited. This marae was smaller than the ones serving as more central religious sites. On Fagatau Island, the kehō was a standing stone that was at times associated with a transverse stone piece on which to place offerings to the gods.

In both Aotearoa and Tuamotu, as can be seen, the rāhui was marked by prominent decorated posts; in Tuamotu there is the added detail that the post was placed in the centre of an enclosing special marae on the coast. It is interesting that on Anaa there were permanent stone markers that could serve to mark a rāhui, which perhaps indicates that the ceremonies attendant on the proclamation of a rāhui were much more important than the marker posts or stones themselves (which would not be unexpected). It is also probably relevant that construction in stone in the islands of what today is French Polynesia was much more standard than in Aotearoa with its vast forests. Such variations in detail are only what might be expected in the case of an ancient and important customary legal practice. More intensive comparative study of such institutions as rāhui would enable deeper and richer understanding: by studying rāhui thoroughly in one part of Polynesia would make it easier to look more carefully at the evidence from elsewhere (for example, what else did Māori in Aotearoa

  1. Kirch, above n 60, at 224.
  2. Frédéric Torrente “Ancient magic and religious trends of the rāhui on the atoll of Anaa, Tuamotu” in Tamatoa Bambridge (ed) The rahui: Legal pluralism in Polynesian traditional management of resources and territories (ANU Press, Canberra, 2016) 25 at 40 (translated by Jean Guiart).

do to enhance the visibility of the marker kehō or pou rāhui? (Just as there is a case for a widened understanding of legal history, equally there needs to be a widened approach to comparative law). More thorough study of the laws of Hawaiki might aid archaeological research: for example stone markers on the coastlines, which might perhaps have been neglected previously, might become more interesting once it is realised that they might perhaps be rāhui markers.

Such comparative studies might lead also to a more study of land and sea boundary markers generally in Polynesia. To cite Frédéric Torrente again: “A mark called pūtiki at Anaa, as described by Paea [name of one of Torrente’s most important informants], was intended to convey a message through a plaited coconut frond (rau gaofe)”.

The indications are that Polynesian civilization had an elaborate and complex system of boundary markers for a range of different purposes, which might be seen as a kind of writing (certainly symbolic markers which convey information93). The markers on the pou rāhui in Aotearoa described by witnesses such as Mr. Bowman were in all probability not mere decorative designs but were specific to the purpose of a rāhui and in that sense could be read. For further details on the complexities of rāhui in Aotearoa specifically and set in the wider eastern Polynesian context the discussion Benton, Frame and Meredith, Te Mātāpunenga (2013) is strongly recommended.94

9 Conclusions

The argument pursued in this article is admittedly somewhat complex, an attempt to join together many dots, dots that have been set in place over the last decades by specialists in a range of scholarly disciplines. I began with some reflections on the growing interest in non-European legal histories as a context for this paper, which, however imperfectly, indeed attempts to be a contribution to non-European legal history, in this instance the legal history of the pre-European Pacific. The first step involved drawing attention to the Lapita revolution in the study of Pacific history, which has shown convincingly that Neolithic seafarers sailed out of Taiwan around 2000 BC before moving on into island Southeast Asia and Near Oceania, mixing with much older peoples who had first

  1. For a thorough discussion of the different kinds of writing used in indigenous cultures, focusing on the Americas, however, see Gordon Brotherston Book of the Fourth World: Reading the Native Americas through their Literature (Cambridge University Press, Cambridge, 1992). On the cultural impacts of the transition from indigenous ways to writing to writing in Latin script see Serge Gruzinski La colonización de lo imaginario: Sociedades indígenas y occidentalización en el México español (Spanish ed, Fondo de Cultura Económica, México (DF), 1991) (originally published in French).
  2. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 310–324.

arrived in Southeast Asia, Australia, and parts of Near Oceania some 50,0000 years ago, well before the last Ice Age. The next great stage in the human history of the Pacific took place much later, around AD 1000, when a fully-formed eastern Polynesian society very rapidly expanded out of their ancestral Polynesian homeland, that is Hawaiki or the Tonga- Fiji-Samoa zone. This great process of voyaging, discovery and settlement resulted in the settlement of previously uninhabited Pacific archipelagos, including Hawai’i, Tahiti and its neighbours, the Marquesas, the Cook Islands, and Aotearoa (‘South Polynesia’). Also relevant is the basic point that Polynesians are a culture that has a strong historical awareness, based largely around concepts of descent from founding ancestors linked to social and kin groups that exist today.

The second dot to connect was the anthropological understanding of “law”, especially as it was studied by the great functionalist anthropologists of Oceania, Bronislaw Malinowski and Sir Raymond Firth. Law does not need to be embodied in written texts for it to be characterised as ‘law’, and it follows that laws and legal systems in this expanded sense can, and perhaps even must, have legal histories.

The final step was to consider an actually existing substantive rule or legal practice, rāhui. Firstly, rāhui are known by that name all over the vast part of the globe colonised by the Polynesians and have widespread similarities in terms of content, display, enforcement, and cultural significance. Their distribution conforms exactly to the area settled and colonised by the ancestral Polynesians around AD 1,000. Therefore, it must follow that rāhui originated in ancestral Polynesia, the culture of which derived in turn from Lapita settlement around 1,000 BC. Therefore, it is meaningful to speak of rahui as possessing a traceable legal history, and of Polynesia has having a legal history of her own, one that was still unfolding when the first Dutch, Spanish, French and English navigators arrived in the 17th and 18th centuries.

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