Waikato Law Review
The number of aborigines is rapidly decreasing ... This decease, no doubt, must be partly owing to the introduction of spirits, to European diseases ..., and to the gradual extinction of wild animals. ... Wherever the European has trod, death seems to pursue the aboriginal. We may look to the wide extent of the Americas, Polynesia, the Cape of Good Hope, and Australia, and we shall find the same result. ... It was melancholy at New Zealand to hear the fine energetic natives saying, they knew the land was doomed to pass from their children.
Darwin had two kinds of “selection” among the variabilities: Natural Selection and Artificial Selection. Ours is a theory of artificial selection.
The purpose of this article is to present John R Commons’s concept of artificial selection as a tool with which to consider and explore facets of legal-economic evolution in New Zealand. The period of New Zealand history examined here is from the late 1830s, when so-called Systematic Colonization began, to the 1880s, when the British Crown for all intents and purposes left the internal affairs of New Zealand to the Colonial Parliament. Whilst this article is intended to be of general interest to historians of political economy and colonisation, the main purpose of this study is to help illuminate certain basic issues that continue to be a source of MŠori-European conflict in New Zealand. The first section below introduces Commons and his work. The second section outlines the concept of artificial selection. The third section turns to New Zealand. The final section summarises significant themes.
John Rogers Commons was born in 1862 in Hollandsburg, Ohio, United States of America. Several of Commons’s early writings on labour issues gained him national recognition. Among other appointments, he was chosen by President Woodrow Wilson in 1913 to serve on a national commission investigating the causes of labour unrest. Commons is widely recognized to have been perhaps the principal figure in formulating the intellectual vision underlying the New Deal. He authored or co-authored 17 books and more than 60 articles on a broad range of subjects. His major theoretical works include Legal Foundations of Capitalism and Institutional Economics. Commons provided an informative story of his life and work in his autobiography Myself. He died in 1945 in North Carolina.
Something of an embryo of Commons’s major works is “A Sociological View of Sovereignty”, published as a series of articles in the American Journal of Sociology in 1899 and 1900. Here Commons urged the conceptualisation of sovereignty as a process rather than an entity, personified as The State. He perceived the state as a process of negotiation over the control of the sanction of physical force. In this process, legal rights are created, manifest only in the behaviour and actions of officials in directing force. Commons’s views in this regard were in accord with and later shaped by Oliver Wendell Holmes Jr. In Holmes’s words:
For legal purposes a right is only the hypostasis of a prophecy - the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it.
Commons thus rejected the pretence that rights have an abstract antecedent existence that the state is obligated to protect. The reality is that rights which are protected are rights only because they are protected. In Commons’s words: “It is the sanctions of sovereignty that make property what it is for the time being ... by keeping people off”. Thus, the issue for society confronted with conflict is the determination of who is to be kept off what. The issue is not whether to employ the sovereign sanction of force, but rather the direction in which the sanction is to be wielded. The fundamental question to be worked out is: who is to direct the sanction of force? This involves, Commons emphasised, a struggle to get control of the hierarchy of legislative, executive, and judicial officials.
Much of Commons’s theoretical work may be understood as an attempt at bridge-building. For example, he sought to account for the “contradictions of abstract individualism and abstract socialism and the other historic dualisms of individual and society”. And he also sought to correlate law, economics, politics, and ethics. In these respects there is a deep resonance between his work and the Legal Realism of Felix Cohen and Karl Llewellyn, and the Sociological Jurisprudence of Roscoe Pound. Commons’s major theoretical works form the base of a school of thought known as Institutional Economics. Current members strongly influenced by Commons include such scholars as Daniel Bromley, Steven Medema, Nicholas Mercuro, Warren Samuels, and Allan Schmid.
Commons’s institutional economics may be conceived as a “rounding out” of orthodox economic theory into an inquiry into the culture of the period under investigation. It constitutes an inquiry into the causes and nature of conflict and a search for ways to resolve conflict through new institutional structures and new procedures - thereby transforming that culture. A thread uniting Commons’s diverse writings was the development of institutions, especially within capitalism. He developed theories of the evolution of capitalism and of institutional change as a modifying force alleviating the major defects of capitalism.
As an entry point to Commons’s “artificial selection” theory of institutional evolution, I shall briefly examine his understanding of the nature and significance of institutions. Commons wrote in “A Sociological View” that “[i]nstitutions are ... definite modes according to which persons deal with one another”. He noted that “[a]n institution has ... a body of accepted beliefs, which color and shape the individual’s desires from infancy ...”. Elaborating on this, he said:
The beliefs which hover about an institution are the social atmosphere, the “social mind”, related thereto. They are the traditional estimates and valuations, expressed and transmitted in some form of language. ... The child is born and begins to grow as a plastic, homogenous group of desires and activities urging him in all directions. He comes in contact with parents at home, policemen in the street, teachers in school and church, workers in shop and factory, and his homogenous desires are drawn out and distinguished from each other by each several group of fellow-men. He learns the language of each institution. His innate but incoherent aptitudes and likings are thus given shape and particular expression. His mind fits into these social beliefs, and he learns to believe and act more or less spontaneously and appropriately in each institution.
One oft-quoted definition of “institution” given by Commons in Institutional Economics is “collective action in control of individual action”. He elaborated on the first part of the definition as follows:
Collective action ranges all the way from unorganized Custom to the many organized Going Concerns, such as the family, the corporation, ... the trade union, the Federal Reserve System, ... the state .... Collective action is even more universal in the unorganized form of Custom than it is in the organized form of Concerns. Yet even a going concern is also a custom.
By “individual action” in the next part of the definition, Commons refers to “participation in ... transactions ...”. And the “control” by custom or concerns “consists of working rules which govern more or less what the individual can, must, or may do or not do”.
Working rules are enforced through the use of collective sanctions. These are “collective inducements applied to individuals by the concern which controls, liberates, and expands their individual actions ...” Commons identifies three types of sanctions according to the kind of concern which exercises control:
These sanctions are distinguishable as moral, economic, and legal sanctions. The legal sanction is violence, or threatened violence, and the concern is the State. The other sanctions are “extra-legal”. The moral or ethical sanction is mere opinion, enforced by such concern as churches, social clubs, and ethical associations like the many “trade associations” of business men who formulate a “code of ethics” whose enforcement rests only on the collective opinion of the members, if not supported by economic or legal penalties or rewards. The economic sanctions are enforced by such organizations as trade unions, business corporations, cartels, through the sanctions of profit or loss, employment or unemployment, or other economic gain or deprivation, but without violence.
At a point in time when an individual joins a going concern, there is in place a more or less elaborate set of interrelated working rules to which adherence is required if sanctions are to be avoided. As individuals carry out their activities within the many overlapping going concerns of which they are “citizens,” they gradually become habituated to the patterns dictated by the underlying set of rules. Eventually the patterns are internalized as unconscious “habitual assumptions” - assumptions that shape one’s response to stimuli.
Familiarisation with the working rules of going concerns permits one to be able to function at a sub-conscious level, allowing the active dimension of the mind to deal with various contingencies that arise in every-day life, thereby facilitating successful participation in the concern. Commons described the process as follows:
When a new worker goes into a factory ... everything may be novel and unexpected because not previously met in his experience. Gradually he learns the ways of doing things that are expected of him. They become familiar. He forgets that they were novel when he began. He is unable to explain them to outsiders. They have become routine, taken for granted. His mind is no longer called upon to think about them. ... Their physical and mental framework has become automatic, and their minds run off happily to a world of memory, imagination, day-dreaming, or what not.
We speak of such minds as institutionalized. But all minds are institutionalized by whatever habitual assumptions they have acquired and they take for granted, so that they pay no attention to them ...
For many institutionalised minds, the working rules, especially those customs that have existed for some time and been inculcated in the process of education, “appear to be natural unchangeable, inalienable”, even though they are in fact “artificial, collective, transitory, forfeitable”. Commons was critical of, among others, political theorists such as Robert Filmer and John Locke for picturing the customs with which “they were familiar and felt secure, as an eternal timeless, presupposed, and unchangeable law of Nature, God, and Reason”. He continued:
The customs with which both Filmer and Locke were familiar were the repeated practices and transactions of landlords, tenants, kings, known as the feudal system; and the practices and transactions of merchants, master workmen, farmers, in the then period of capitalistic expansion through commerce and revolution.
The customs, however, which seemed divine and natural to Locke, were very recent history, though they were older than Locke himself. ... The subjection of women to their husbands, as then practiced in England, was founded on God’s punishment of Eve, and on “the laws of mankind and customs of nations”, so that there is a “foundation in nature for it”. Her subjection was a divine and natural duty correlative to the husband’s right, because familiar and beneficial in Locke’s opinion. ...
Most important was the custom of private property ... as practiced in the common law of 1689. Yet property, according to Locke, exists before the organization of society, and “the great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property. ... [But] property is, in “real fact”, only an expected repetition of ... transactions, as variable as changing conditions and changing meanings; not a divine unchanging command issued in conformity to what present beneficiaries now think ought to be made unchangeable.
The contingent nature of customs, Commons pointed out, often becomes apparent when they come into conflict with other customs following a change in circumstances, such as an increase in population, a technological innovation, or an environmental degradation. It is at this point when deliberate decision-making is required over whose custom will count and whose will not:
Customs are, indeed, the raw material out of which justice is constructed. But customs differ, customs change, customs are good and bad, and customs conflict. They are uncertain, complex, contradictory and confusing. A choice must be made. Somebody must choose which customs to authorize and which to condemn or let alone .... Somebody must choose between customs. Whoever chooses is the lawgiver.
The above passage brings us directly to Commons’s artificial selection theory of institutional evolution:
Customs originated in the past. But they also changed in the past, and they are changing in the present. ... It is these variabilities that makes possible the evolutionary changes of custom. The common law itself is only the decisions of disputes according to the prevailing customs, each decision operating as a precedent. Between the multitude of competing precedents there is opportunity for judges to select, so that the common law changes and “grows” by “artificial selection” looking towards future consequences.
Artificial selection is central to Commons’s 1924 book Legal Foundations of Capitalism. Commons outlined the complex process by which the customs relating to property and liberty which prevailed under feudalism were converted into the very different customs which prevail under capitalism. The role of the state in this process was pivotal. Of present note, Commons gave some considerable attention to the fact that the state, the sovereign concern, is an object of control and capture in regard to channeling the direction of artificial selection, that is, the determination of whose customs are to count and whose are to perish. Commons stated:
[T]he common-law courts accomplished, in the case of the gilds, what they had accomplished in the case of the barons. They abolished the private jurisdictions with their private courts, and the way was thenceforth open for them to build up, for the Kingdom, a common law of the price-bargain, just as they had built up a common law of the rent-bargain. The business man now, like the Yeoman and copy-holders, could have his customs inquired into by the King’s justices, and his rights and privileges asserted against private jurisdiction of both gilds and barons. Capitalism entered upon its offensive stage, intent on controlling government whose aid it had petitioned during its defensive period. Eventually its petitions became its rights. The next hundred years, until the Act of Settlement in 1700, was substantially the struggle of farmers and business men to become members of the Commonwealth, whereby they might have courts of law willing and able to convert their customary bargains into a common law of property and liberty. The King’s courts themselves had been impotent after Chief Justice Coke, the great champion of the common law had been removed from office by King James in 1616, and consequently the farmers and business men turned towards collective control through parliament, towards raising an army, and even, for a period of ten years, abolishing the King and House of Lords and converting the Kingdom literally into a commonwealth. Although the Kingdom was restored ... the common law of business was incorporated into the common law of agriculture.
Commons, we have seen, understood sovereignty to be a process of negotiation over the use of the sanction of force. The principal tools of negotiation are words. Contests to control and use sovereignty for the purpose of channeling artificial selection, Commons emphasised, ultimately involve attempts to control and manipulate language. Commons gave enormous attention to the dynamics of language. In Legal Foundations of Capitalism, Commons gave an advanced and refined observance to considerations of language and how words, as cultural artifacts, encapsulate changing interpretations of experiences and of values. Words, Commons perceived, are as fluid as a pattern of working rules. Commons wrote in the first chapter of Legal Foundations:
Words, prices and numbers are nominal and not real. They are signs and symbols needed for the operation of the working rules. Yet each is the only effective means by which human beings can deal with each other securely and accurately with regard to the things that are real. But each may be secure and inaccurate.
In the process of writing Legal Foundations, Commons learned that changes in the meanings of words were correlated with cultural change. In particular, he discerned that capitalism became what it is, and took the form that it has, in part because of certain definitions of, among other words, “property” and “liberty” that were given privileged status in law. Commons sought to illuminate the language-culture reciprocity in Legal Foundations. His analysis of liberty began in England in the Middle Ages, then a central object of dispute. Commons clarified the nature of the conflict:
As early as the year 1300, it is asserted, an unlearned local court imposed a fine on several candle-makers who “made a covenant among themselves that none should sell a pound of candles cheaper than another”. Thus liberty of trade among business men became the common-law rule of the landlords until modified, in the 17th century, by the business-law rule of “fair trade”.
It was these common-law concepts of personal rights, of property and liberty that came into conflict, in the reigns of Elizabeth and the Stuart Kings, with the prerogative of the monarch. The way was prepared for a double meaning of the word liberty. It might mean the “liberates” of Magna Carta” which were the privileges of the landlords granted by the monarch, or it might mean the liberty to buy and sell, to be free from violence, theft and trespass, derived from approved customs which constituted the common law. The two were inconsistent. One was a contradiction of the other. Freedom, or liberty, in the sense of a grant out of the royal prerogative, stood for a relation of superior to inferior; freedom or liberty in the sense of the common law stood for a relation of equality between members of the same class. The first is more properly to be distinguished as “freedom,” the second as “liberty”. Freedom was a grant of power to participate in the privileges of those who were specially favored by a superior. Liberty was the common-law right to equality of treatment among individuals who belonged to the same class whether privileged or unprivileged. Equal liberty was inconsistent with unequal freedom.
It was this contradiction and double meaning of liberty that characterized the long struggle of the 17th century.
An early part of the struggle was between Sir Edward Coke and King James I. Coke began an assault on monopolies, and justified this by (incorrectly) applying the common law definition of liberty to the “liberates” of Magna Carta. The process of “socialization” - Commons’s term for the positive response by officials of the state to pressure from a coercively disadvantaged group to extract power from those in in a position of privilege - orchestrated by Coke was terminated with his dismissal. The English Revolution, however, resuscitated Coke’s language. Commons wrote of the linguistic significance of the “democratization” - his term for the process whereby a group, through force, get its representatives to become officials of the state, thereby causing the form of the state to evolve, and procure laws to protect their interests:
The political uprising ..., which ended in the Commonwealth, is well-known. On the legal side it was reflected in new definitions of monopoly and liberty, based on errors in interpreting the original meanings.
With the transformation from feudalism to capitalism, words had to change their meaning - for, as Commons perceived, the languages we speak reflect and make possible the cultural practices in which we participate.
Commons’s analysis of the legal foundations of capitalism underpinned his rejection of those theories in political economy, both physical and evolutionary, which have “attempted to get rid of the human will and to explain economic phenomena as the working out of natural forces, either foreordained or blind”. Commons outlined his own conception of political economy:
Economic phenomena, as we know them, are the result of artificial selection and not of natural selection. ... The subject-matter is the habits, customs and ways of thinking of producers, consumers, buyers, sellers, borrowers, lenders and all who engage in what we call economic transactions. The method has been the adoption of common rules applying to the similar transactions of all who come within the same concern. If you watch the development of the credit system out of the customs of business men in buying and selling, borrowing and lending, and out of the customs of courts in deciding disputes, according to the changing common rules, you will see how political economy evolved. The desirable customs were selected gradually by the courts, the undesirable customs were progressively eliminated as bad practices, and out of the whole came the existing economic process, a going concern, symbolized by a flux of prices, and operating to build up an artificial mechanism of rules of conduct, creating incorporeal property and intangible property quite different from the unguided processes of nature. ...
[T]he phenomena of political economy ... are the present outcome of rights of property and powers of government which have been fashioned and refashioned in the past by courts, legislatures and executives through control of human behavior by means of working rules, directed towards purposes deemed useful or just by the law-givers and law interpreters.
What Commons called the “art of political economy” is concerned, not with fine tuning Adam Smith’s invisible hand, but with deliberately creating the institutional structure upon which the hand operates, and in doing so determining whose interests the hand will serve. Commons wrote:
The oversight ... of Adam Smith and the classical economists ... is explicable in the fact that what they mistook for the order of nature or divine providence was merely the common law silently growing up around them in the decisions of judges who were quietly selecting and standardizing the good customs of the neighborhood and rejecting the bad practices that did not conform to the accepted rules of reason. Legislatures and monarchs are dramatic, arbitrary and artificial, courts are commonplace and natural.
The Smithian hand, Commons discerned, is not the hand of God, but the “visible hand”  of the law-giver.
This section concluded with a passage from Charles Darwin which was then connected with Commons’s theory of economic evolution. In a book published in 1875 entitled The Variation of Animals and Plants Under Domestication, Darwin essentially characterised artificial selection as follows:
Although man does not cause variability and cannot even prevent it, he can select, preserve, and accumulate the variations given to him by the hand of nature almost in any way which he chooses; and thus he can certainly produce a great result. ... Man may select and preserve each successive variation, with the distinct intention of improving and altering a breed in accordance with a preconceived idea; and by thus adding up variations, often so slight as to be imperceptible to the uneducated eye, he has effected wonderful changes and improvements. ... As the will of man thus comes into play, we can understand how it is that domesticated breeds show adaptation to his wants and pleasures. We can further understand how it is that domestic races of animals and cultivated races of plants often exhibit an abnormal character, as compared with natural species; for they have modified not for their own benefit, but for that of man.
The above passage, it should be clear without explanation, captures the general thrust of Commons’s artificial selection. That Commons’s view was in accord with Darwin can be discerned from the following passage from the former:
Natural selection, which is natural survival of the “fit”, produces wolves, snakes, poisons, destructive microbes; but artificial selection concerts wolves into dogs, nature’s poisons into medicines, eliminates wicked microbes, and multiplies the good microbes. A holstein cow could not survive if left to natural selection -- she is a monstrosity created by artificial selection for the sake of what she can do for man in the future.
For Commons, the direction of nominally economic evolution was shaped by the purposes of the Darwinian ‘breeder’, that is, the officials of the sovereign concern, the state. The state is a human artifact and it is an instrument of physical force which individuals and groups endeavour to control, to ensure, among other things, the survival of what they deem to be good customs.
In the early 1800s, there existed some 50 iwi (tribes/nations) in the area of land commonly known by Europeans as New Zealand. Rangatira and Tšhunga largely managed the sovereign sanction of force. The administration of property was carried out through a complex interaction of the three multi-faceted concepts of mana, utu, and tapŸ. The Tšhunga, for example, could place a tapŸ (or rŠhui) on certain areas, such as a forest or fishery, constituting an order for the citizens to keep off. Intruders, or those committing a hara, would have their maŸri attacked by evil spirits otherwise kept at bay by benevolent protection of the gods, and become sick. If the offence was serious, kouka, or the abyss of death, yawned before them. If the sorcery did not kill the intruder, the Rangatira would at the first chance. For less serious offences a milder utu would take place in the form of muru. Here, some or all of the offender’s property, including that of his or her whŠnau or hapŸ, was confiscated or plundered. Iwi histories contain numerous cases where a whŠnau or hapŸ had to accept muru for a member’s wrong-doing.
Rangatira were responsible for managing a large part of the politico-economic affairs of the hapŸ and iwi. The greatest efforts were made to secure production of goods in order to meet all obligations, including, among other things, hospitality (involving the reciprocal giving of hŠkari, or feasts), and the returning of gifts from other hapŸ and iwi. Gifting served various purposes, including the acquisition of goods that were unable to be produced, the maintenance of harmonious relations, and the retention of mana.
Early European explorers in New Zealand readily discerned a cultural abyss between themselves and the indigenous peoples. In the 1838 inquiry by the House of Lords Committee, the question was posed:
Supposing the Chief of one of the Tribes disposed of ... his Rights of Sovereignty over his land, his Rights of Sovereignty would pass to the Person to whom he disposed of them?
Robert FitzRoy, Captain during Darwin’s Beagle voyage, answered:
I apprehend they would at first, but whether that would be held good Twenty or Thirty Years hence would be a different Question; for those Natives do not understand parting with their Rights in Perpetuity ...
And, to the question, “Have the New Zealanders any Notion that the Compact is not final ...?”, FitzRoy answered:
I do not think they do, because they consider that when a European purchases their Land, he is taken from that Moment under the Protection of their Tribe. All the Purchases have been with the Understanding that the Settlers are to be protected by the Chief from whom they purchased the Land, which appears to me very much like their considering that they still have a Sovereignty over the Land, though they allow those People to make use of it.
During the 1830s there were various groups urging officials of the British Crown to use force to protect their respective interests in New Zealand, including several iwi (who were fearful of the French), the Church Missionary Society, and the New Zealand Company. The last-named was largely the brainchild of Edward Gibbon Wakefield, who, several years earlier, developed a theory of Systematic Colonization. In 1837 Wakefield described elements of a joint colonization-civilization plan in an ethnocentric-laden letter to the Reverend Charles Torlesse:
I have set on foot a new measure of colonisation on principles which have worked so well for South Australia. The country is New Zealand - one of the finest countries in the world, if not the finest, for British settlement. A New Zealand Association is now in course of formation: it will comprise a more influential body than that which founded South Australia. The colony - that is, the body of capitalists who will first emigrate - is already considerable and comprises persons qualified for every occupation but one. We have no clergyman. The New Zealanders are not savages properly speaking, but a people capable of civilisation. A main object will be to do all that can be done for inducing them to embrace the language, customs, religion and social ties of the superior race. The missionaries have already done something towards this object.
Wakefield had begun to do his best to induce the Crown to undertake the task of carrying the plan into execution.
However, officials of the Church Missionary Society became disturbed by the plans of Wakefield and the New Zealand Company. The Secretary, Dandeson Coates, giving evidence before the 1838 Select Committee of the House of Lords on the status of New Zealand, argued that the Company would:
interrupt, if not defeat, those Measures for the Religious Improvement and Civilization of the Natives of New Zealand, which are now in favourable Progress through the Labours of the Missionaries ... [S]uch Colonization of Countries inhabited by uncivilized Tribes having been found by universal Experience to lead to the Infliction upon the Aborigines of the greatest Wrongs and most severe Injuries.
Coates’s objections to the Association were held by many if not most missionaries in New Zealand. In 1838 the Reverend Henry Williams, who also had a clear agenda for the use of British force, wrote to the Church Missionary Society:
I ... do not hesitate to say that unless some protection be given by the British Government, the county will be bought up, and the people pass into a kind of slavery, or be utterly extirpated. The European settlers are making rapid advances and are beginning to hold out threats. Should any encouragement be given to the association, thousands would immediately come and overrun the country, and the natives must give way. The only protection that I can propose is that the English Government should take charge of the country, as the Guardians of New Zealand; and the chiefs should be incorporated into a General Assembly, under the guidance of certain officers, with a military force. This would be the only means of giving weight to any laws which might be established.
On 13 June 1839, the Crown, in the person of Lord Normanby, instructed Captain William Hobson to treat with the “natives” of New Zealand for, among other things, “the cessation of sovereignty”. The instructions given to Hobson covered numerous issues. The first issue of present significance related to consent:
The Queen ... disclaims for herself and her subjects every pretension to seize of the Islands of New Zealand, or to govern them as part of the Dominions of Great Britain unless the free intelligent consent of the natives, expressed according to their established usages, shall first be obtained.
Normanby’s instructions touched on numerous matters, including that of educating (as broadly defined) the “natives”:
For their religious instruction liberal provision has already been made by the zeal of the missionaries ... and it will be at once the most important and the most grateful of your duties to this ignorant race of men to afford the utmost encouragement, protection and support to their Christian teachers. I acknowledge also the obligation of rendering to the Missions such pecuniary aid as the local Government may be able to afford. ... The establishment of schools for the education of the aborigines in the elements of literature will be another object of your solicitude, and until they can be brought within the pale of civilized life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as they are compatible with the universal maxims of humanity and morals. But the savage practices of human sacrifice and cannibalism must be promptly and decisively interdicted.
It can be inferred from the above passage that Normanby would have agreed with Adam Smith that “[t]he great secret of education is to direct vanity to proper objects”. Normanby’s manifest ethnocentrism certainly gave rise to a position on what objects were proper. It remained to be seen whether or not Hobson would or could explain these matters to the “natives”. In the language of Commons, the Crown would be controlling the process of artificial selection; that is, the selection of what are deemed to be good customs and the elimination of what are deemed to be bad customs. That is to say, the Crown would want to monopolize the position of the Darwinian breeder.
Hobson was, it seems, much of Normanby’s mind as to what were proper objects. Of immediate significance, on several occasions in 1840, hoping to give effect to the instructions, Hobson pushed the Secretary of State for the Colonies to send a military force in order to help “the natives” come “within the pale”. (Hobson’s official physical power on arrival in New Zealand consisted of five troopers of the New South Wales Mounted Police). On one occasion, Hobson wrote:
In my former letters I took the liberty to urge your Lordship the necessity for augmenting the military force in New Zealand. Further experience convinces me of the expediency of this measure. I stated in my letter of 17 February , that four companies of a regiment would be sufficient to support the authority of the Government, and to afford protection to the settlers; I still adhere to that opinion, and I again respectfully recommend it to your Lordship’s favourable consideration. ... [T]he habits ... of the native population ... are so inveterately opposed to those of civilized life, and their practices so repugnant to the customs of Englishmen, that we can scarcely hope to preserve ... harmony when the settlers become more numerous.
It can be inferred from this passage that Hobson would have doubted the applicability of the conventional interpretation of Adam Smith’s theory of the invisible hand. To carry out his instructions, Hobson saw the necessity for the visible hand of the military in determining a fundamental question of policy: order on whose terms? Hobson’s express ethnocentrism suggested that he would prefer order on British terms.
The texts of the Treaty of Waitangi provided, according to William Swainson, “that the chiefs should still continue to exercise their ‘chieftainship’, with all its incidents”. Swainson, appointed Attorney-General of New Zealand in 1841, gave considerable thought in the early 1840s as to how this related to the provision that Rangatira ceded to the British Crown “what we, on our part, understood and intended to be understood, by the language made use of ... the Sovereignty over the country”. Swainson, like his fellow Crown officials, understood the Crown’s acquisition of sovereignty to mean the monopolisation of force. The potential antinomy, if Rangatira used force (in the name of exercising their “chieftainship”, or “Rangatiratanga”) against Europeans or MŠori of other iwi to defend what they deem to be their rights, contrary to what the Crown deemed to be its rights, would soon become an issue of contention, one that remains to the present day. This issue would centre on the political process of determining definitions of terms.
The potential antinomy does not appear to have been the subject of discussion at any of the Treaty negotiations. What views Crown officials held on the matter at the time is unknown. But the following remarks by the first Chief Justice, William Martin, are instructive:
The work of collecting signatures to the Treaty of Waitangi was hasty and incomplete in the extreme. It was especially imperfect in the central districts of this island [North Island]. ... Subjects to the Crown were to be gathered in from year to year, not by mere signatures, but by acts of practical assent, gradually growing into the habit of willing obedience to a power recognised as beneficial. Discussion was avoided. To let the authority of the Crown quietly grow in the land was the great object.
So much for Hobson’s duty of obtaining the “free intelligent consent” of Rangatira.
During the 1840s, however, the real officials of sovereignty in New Zealand were Rangatira. This was indeed admitted to by Robert FitzRoy, Governor of New Zealand 1843-45. FitzRoy informed us in his 1846 book, Remarks in New Zealand, that Rangatira became an integral part of Government House:
For instance, on one day more than two hundred chiefs were assembled. ... [On that day] above a thousand of their followers were in the town, and not less than two thousand in the neighbourhood, within an hour’s journey.
With FitzRoy at the time able to call on a detachment of only 80 rank and file, it is of no surprise to read in his Remarks that he considered the settlement of Auckland to be “entirely in their [the local iwi] power” FitzRoy went on to infer that what he considered to be the “public interest” would really have to be what was in the interests of Rangatira:
After a few months’ observation and reflection the governor became more and more convinced of the absolute necessity of acting so as to make the large majority of the natives really friendly towards the government, and disposed, of their own free will, to support his authority. By the small [European] physical force in the colony, it was plain he could then do nothing against such numerous opponents as any hostilities would raise.
Rangatira were at this time largely in control of the process of artificial selection. Many Rangatira in fact quickly learned the European game of capitalism and became good at playing it. For several years after the New Zealand Company had commenced operations, it was still without a Crown grant for a single acre of land, and its 8,000 settlers in 1846 were technically no better than squatters. The institution of leasing emerged. By 1848 it was estimated, for example, that Rangatira of Ngati Kahungunu were receiving £600 for 100,000 acres. Leasing proved to be a profitable practice for them, and at the same time they retained control over the land.
MŠori received early support from some Europeans, particularly missionaries, for their policy of leasing. But officials of the New Zealand Company and the Crown were not so supportive. The following passage from Crown agent Donald McLean gave a clue to attitudes that were, arguably, shared by many Europeans from the beginning of leasing:
It is quite certain that while such squatting exists, the Natives, even as far North as Auckland will oppose the sale of land in the expectation. ... that they may realize high rents for it. ... [T]he greatest recipients ... [of] these rents are frequently, if not always, the most idle and dissolute characters of their tribe, whose reckless conduct, and increasing cupidity, render the position of the setters holding and under them not only disagreeable and precarious, but in every way repugnant to the independent feelings of an Englishman.
McLean expressed here a simple dislike of the situation in which certain MŠori occupied a coercively advantageous position in their relations with Europeans - a pattern of inequality that was, of course, instituted through the land guarantee in the Treaty. The colonists, McLean would have it, had not come to New Zealand to be tenants for the “natives”.
In the 1850s the arrival of numerous colonists took the European population above that of MŠori. At this time some major changes began to occur in inter-racial relations. The Reverend Richard Taylor commented in his 1855 book Te Ika a Maui:
As our countrymen increased and occupied the country, the necessity of keeping on terms of friendship with the natives became less felt, and by the fresh comers not at all. Many, too, often viewed the original owners of the soil as intruders, and when they approached their doors have not infrequently let loose their dogs at them. There can be little doubt that the same cause which rendered our countrymen objects of native dislike in India also repeated here; the MŠori is constantly being called a nigger and black fellow to his face, and viewed as an inferior being. ... The only individuals who have been well treated have been those who have had lands to sell, and they only whilst the negotiation went on; immediately the sale was completed they were ... disregarded and unnoticed.
The differences between the iwi and colonists in terms of political-economic power indeed were becoming the subject of possible confrontation. A correspondent of the Taranaki Herald in 1855 made the following prophesy:
The feeling generated in the mind of the actual settler, who is compelled to go miles back into the forest to obtain land, is one extremely unfavourable to continued peaceable relations with the Natives; and with the growth of the European population, and the increased pressure for land, this feeling will become more bitter.
The pressure from settlers on iwi to sell was a stimulus for antagonism within and between iwi. This, in the view of Crown agent George Cooper, was to the benefit of the settlers:
So long as they abstain from absolute fighting these differences among themselves are so much to our advantage as they are the only means by which we can hope to induce them to give up the land.
This was the customary colonial policy of “divide and rule”.
At a meeting in Taranaki on 8 March 1859, at which the Crown sought to buy land, Te Teira Manuka of Wiremu Kingi’s iwi, Te Ati Awa, came forward with an offer to sell Governor Thomas Browne a 600 acres of land at the mouth of the Waitara River. Kingi, however, refused to permit the sale. Browne chose to ignore Kingi’s claim of a power of veto. On the critical issue of mana, Browne subscribed to the view of his Native Minister, William Richmond, who stated:
After all, what is mana, where, as in Taranaki, it is not a silent admitted influence? What is it, I say, but the right of the strong over the weak - the old MŠori right of the strong arm? Such a right is, of course, perpetually changing as to its territorial limits; and we have seen how the mana of William King - that sacred right! - now reaches to Waitara. On this question it is bootless to refer to the old customs of the country. Mana, as now set up, is a veto on sales. Where sale was never thought of, what could the people know of mana? But this is not worth further discussing - it cannot affect our conclusion about Wi Kingi. All right of chieftainship, veto, seigniory, mana, or whatever you may choose to call it, is, in reason and equity, barred in the present case.
Here Richmond asserted the power of the Crown to monopolise the control of artificial selection - which ultimately centred on the meanings of words (such as “mana” and “rangatira”) to count at law. (A better illustration of the language-culture mutuality would be hard to find). Browne authorized the use of force to eject Kingi and his people. The Taranaki War soon followed.
Several years earlier. Browne had predicted pressure from his Native Minister concerning the appropriation of “native” land. Browne had arrived in New Zealand in 1855 with the responsibility of implementing Representative Government for the Europeans (MŠori had been deliberately prevented from participating on grounds tied to asserted cultural superiority). Browne, however, would retain control of Native Affairs, as he was responsible for the peace and security of the colony. Browne was frank about the reason for his control of Native Affairs in a private letter to the Permanent Under-Secretary for Colonies:
Judging by what I now see, the difficulty will be not to turn men out of office but to keep them in it: my adviser will be subject to pressure from an opposition agitated by violent party feelings and restrained by no fear of the consequences. If my view is correct they will not find it easy to control those who cast longing eyes on native lands, nor will the fear of war have that effect, for many would profit by it largely in the way of trade and to the unscrupulous it holds out hope of acquiring the lands they want. If therefore the Governor is obliged to consult with his executive council in questions affecting the natives, he will be liable to their throwing up office and being supported in so doing by the assembly whenever they take or are forced to take a one sided view of native affairs.
It can be seen from the above passage that Browne recognized the state to be an object of control for economic gain. And it is clear that he did not subscribe to the conventional interpretation of Adam Smith’s invisible hand - for, in Browne’s view, self-interest would be likely to lead, not to harmony, but to war. Evidently, by 1859, Browne came to the view that war would be a good thing for the Europeans. Victory eventually came several years later.
An early preoccupation of the Colonial Parliament in 1862 was the Native Lands Act. The cause of the Taranaki War, in the view of Crown officials, had been ill-defined MŠori titles (this view was not, of course, shared by Rangatira such as Kingi). “Remedy” was sought in the establishment of a tribunal to enable ownership to be determined judicially before acquisitions were attempted. The Native Land Act 1862 made provision for (what became known in 1865 as) the Native Land Court to decide on the ownership of MŠori lands. After reciting Hobson’s Text and the cessation of the right of pre-emption, the Act stated:
And whereas it would greatly promote the peaceful settlement of the colony, and the advancement and civilization of the Natives, if their rights to land were ascertained, defined and declared, and if the ownership of such lands ... were assimilated as nearly as possible to the ownership of land according to British law; and whereas with a view to the foregoing objects Her Majesty may be pleased to waive in favor of the Natives so much of the said Treaty of Waitangi and reserves to Her Majesty the right of preemption of their lands, and to establish Courts, and make provision for ascertaining and defining the rights of the Natives to their lands, and for otherwise giving effect to the provisions of this Act.
Whilst this ethnocentric-laden Preamble suggested that the Act was to be “in favor of the natives”, it remained to be seen who would be given the titles. The Colonial Legislature had taken it upon itself to answer the fundamental issue of who decides: the Court was to be under the presidency of a European Magistrate.
Certificates of title were to be issued to individuals (specifically, no more than 10 persons). The result was that those named on the certificate were enabled to dispose of what were thereby formerly iwi lands. For all intents and purposes iwi were destroyed. A later observation of the Court by Chapman J in Willoughby v Panapa Waihopi is as follows:
A body of custom has been recognized and created in that Court which represents the sense of justice of its Judges in dealing with a people in the course of a transition from a state of tribal communism to a state in which property may be owned in severalty, or in the shape approaching severalty represented by tenancy in common. Many of the customs of that Court must have been founded with but slight regard for the ideas which prevailed in savage times. Thus it is well known that, like other races in the same condition as to the ideas of property, the MŠoris recognized no individual property in land beyond that derived from occupation by cultivation. The tribal lands have, however, to be partitioned and otherwise dealt with, and that is done by allotting blocks of land to persons found by the Court by a process of its own to be entitled to them.
The colonial judiciary thus had a significant degree of control with respect to artificial selection - a power that Hobson had ultimately sought in 1840 through the Trojan Horse of the Treaty of Waitangi.
Historian Alan Ward has provided a brief general outline of the consequences of the Court as follows:
The MŠori people were consequently exposed to a thirty-year period during which a predatory horde of storekeepers, grog-sellers, surveyors, lawyers, land agents and money-lenders made advances to rival groups of MŠori claimants to land, pressed the claim of their faction in the Courts and recouped the costs in land. Rightful MŠori owners could not avoid litigation and expensive surveys if false claims were put forward. ...
The ... Native Land Court ... ushered in an era of bitter contesting, of lying and false evidence. The legalistic nature of the Court also instituted a costly and tedious paraphernalia of lawyers, agents, legal rules and precedents - a morass in which the MŠori floundered for decades, frittering away their estates in ruinous expenses.
Another facet of what can readily be understood as cultural genocide concerned education - a subject, it will be recalled, that held significance in Normanby’s instructions to Hobson. In 1862, Henry Taylor, Auckland Inspector of Native Schools, in a report to the Colonial Parliament, noted “some impediments to progress” in “carrying out the work of civilization among the aboriginal Native race, through the medium of schools”. He insisted:
The Native language itself is also another obstacle in the way of civilization. So long as it exists there is a barrier to the free and unrestrained intercourse which ought to exist between the two races. It shuts out the less civilized portion of the population from the benefits which intercourse with the more enlightened would confer. The School-room alone has the power to break down this wall of partition between the two races. Too much attention cannot be devoted to this branch of MŠori education.
The Native Schools would become a pivotal instrument of cultural assimilation. The “father” of the Native School system, James Pope, believed that “the MŠori could be rapidly and painlessly Europeanised and that virtual identity between the two peoples would be achieved and the MŠori absorbed at no distant date”. Pope’s ethnocentrism is manifest in his statement of the overriding objective of the system:
to bring to an untutored but intelligent and high-spirited people into line with our civilisation and by placing in MŠori settlements European school buildings and European families to serve as teachers, especially as exemplars of a new and more desirable mode of life.
A multi-layered form of artificial selection took place with the development of “acclimatisation” societies. With a view to introducing, among other things, their fishing customs from “home”, colonists residing in Canterbury held a public meeting in 1864. The Canterbury Horticultural and Acclimatisation Society was formally constituted that year, with Frederick Weld its first President. Soon the Society began jockeying for protective legislation. (Fortunately for the Society, Weld was to become Premier later in the year). Vice-President Julius Haast thought that “our [sic] Alpine rivers are well calculated for the propagation of the salmon and trout”. In 1866 William Murison, Member of the House of Representatives for Waikouaiti, introduced the Salmon and Trout Bill to permit and protect these fish introduced into rivers and streams by the societies. The Governor would be given power to make regulations as to closed seasons, the definition of mouths of rivers and streams, and methods and prevention of poaching. The Bill was passed in 1867.
The salmon and trout, however, had a considerable adverse impact on indigenous fish such as koaro, pipiki, tikihemi and inangi. Also, there were numerous eel drives designed to protect young trout. Tonnes of eels were slashed with iron and allowed to decay on the banks. MŠori were precluded from catching the imported fish unless they purchased a license. These events, needless to say, led to antagonism. In 1881, Alexander Mackay, Native Commissioner, reported on conflict in Ngai Tahu. His description of events (which also concerned matters relating to the drainage of lakes) illuminated clearly a process of cumulative-causation wherein the iwi had been pushed into “a state of privation”:
I have recently visited the majority of settlements in Canterbury and Otago. ... At many of the settlements poverty is steadily on the increase among the residents, and without some change ... effected, the people will ultimately drift into a state of semi-starvation. The increase of civilization around them, besides curtailing the liberties they formerly enjoyed for fishing and catching birds, has also compelled the adoption of a different and more expensive mode of life, which they find very difficult to support; this gets them into debt with tradesmen, and the puzzle is how they manage to exist at all, as regular employment is not to be obtained, and the scanty crops that are raised are insufficient for their own use ...
A matter that has inflicted serious injury on the Natives of late years ... is the action of the Acclimatization Societies in stocking many of the streams and lakes with imported fish. These fish are protected by special legislation, consequently the Natives are debarred from using the nets for catching the whitebait in season, [n]or can they catch eels or other native fish in these streams for fear of transgressing the law. ... In olden times the Natives had control of these matters, but the advent of the Europeans changed this state of affairs and destroyed the protection that formerly existed, consequently their mahinga kai (food-producing places) are rendered more worthless every year, and in addition to this ... they are frequently ordered off by the settlers if they happen to have no reserve in the locality. This state of affairs, combined with the injury done to the fisheries by the drainage of the country, inflicts a heavy loss on them annually and plunges then further into debt, and keeps them in a state of privation. All this is very harassing to a people who not long since owned the whole of the territory now occupied by another race, and it is not surprising that discontent prevails, or that ... prosperity is impossible.
Ngai Tahu’s means of subsistence, according to Mackay, was literally taken away by the laws of the Colonial Legislature and given to Europeans. If Ngai Tahu wanted fish to eat they now had to pay Europeans for it. In short, the colonists had forced the “game” of capitalism on the iwi and made the rules favourable to themselves. That is to say, it was capitalism for the colonists via their control of the state. Virtually without rights, the status of iwi as “economic” actors was bordering on an empty set.
At the time of the passing in the Colonial Parliament of the MŠori Representation Act 1867, officials of iwi lost virtually all influence in directing the sovereign sanction of force in New Zealand. This Act provided for the election of four members to represent the MŠori race, one each for the electorates of Northern, Eastern, Western and Southern MŠori. The following passage taken from the debates on the MŠori Representation Bill is instructive as to one of its purposes:
The well-known line, “Satan finds some mischief still for idle hands to do”, might very well be applied to them, and if they got something useful to do, something to occupy and amuse them, their energies might no longer go in a questionable direction. The Bill would give them this, and would act as a kind of safety-valve to let off some dangerous steam, and they would have something to talk about and think about, instead of devoting their whole attention to war.
Members for MŠori soon became well aware of their “absolute impotency when a policy measure is going through that is inimical to them”.
In a last-ditch effort to save a dying culture, Tawhiao, the second MŠori King, led a deputation to England with a petition to Queen Victoria in 1884. The petition proposed a separate MŠori Parliament, the appointment of a special commissioner as intermediary between the MŠori and Colonial Parliaments, and an independent commission of inquiry into land confiscations. The following passage from the petition directed attention to the destruction of the MŠori governments:
The rights of the chiefs over their own lands were disallowed by the Government, and the positions of the chiefs, in accordance with their MŠori customs, was swept away; for the chiefs had the power to secure the land for themselves and their tribes ... and their rights were reduced to an equality with ordinary persons, and their words were allowed no weight in retaining their land or in directing affairs of their own tribes.
The Native Land Court featured in the petition. It was clear that the Crown’s control of the selection of the judicial personalities was objected to. For it was requested:
that European Judges in the Native Land Court be superseded, and that your MŠori race be then permitted to direct their own affairs in that Court; that they may be empowered to appoint their own Judges over their own lands, lest they be lost by all the present doings of the Court; that they may be able to deal with these lands in accordance with their own customs.
At a meeting with Lord Derby, the Secretary of State for the Colonies, Tawhiao acknowledged Queen Victoria’s supremacy, and defined his own kingship as uniting the MŠori as one people; not for purposes of separation but to claim the Queen’s protection. However, Lord Derby stated that the petition had first to be referred to the Colonial Government. The Prime Minister, Robert Stout, eventually responded to the Colonial Office by declining to discuss events preceding 1865, when the Imperial Government was “responsible”, and denying that there had been any infraction of the Treaty since then. Tawhiao’s specific proposals were dismissed or ignored. Derby wrote to Tawhiao:
The questions to which the memorial relates have ... been discussed in the House of Commons with many expressions of sympathy for the MŠori race ... The feeling, at the same time, appeared to be general that ... the Government of the Queen in this country has no longer its former power and responsibility in regard to the internal affairs of New Zealand. ... [U]nder the present Constitution of New Zealand the government of all Her Majesty’s subjects in the islands is controlled by Ministers responsible to the General Assembly, in which the Natives are efficiently represented by persons of their own race, and it is no longer possible to advise the Queen to interfere actively in the administration of native affairs. I observe, however, with satisfaction that it is in contemplation to increase the number of the Native representatives.
The number of “safety valve” seats was, however, increased to five only in the 1990s. The Colonial Parliament retained full control of the process of artificial selection.
Supported with imperial troops, officials of the British Crown acceded to requests from colonists in New Zealanders to pursue war in order to get full control of the sovereign sanction of force in New Zealand. Victory had the reward of becoming the Darwinian cultural breeder, determining, in situations of conflicting customs, whose customs were to be perpetuated and whose were to perish. “Sovereignty” was not obtained through treaty negotiations with iwi but though force and conquest. Some remarks concerning treaty negotiations made in 1860 by Paora Tuhaere, of Ngati Whatua, are suggestive:
[B]lankets were brought by Mr. Williams. Those I call the bait and the hook was within; the fish did not know there was a hook within; he took the bait and was caught. Mr. Williams’s bait was the blanket; the hook was the Queen’s sovereignty. When he came to the chief he presented his hook and forthwith drew out a subject for the Queen.
Colonial politicians would make their actions pertaining to the Treaty immune from judicial review by appointing judges with a similar cosmology. In 1877, in the (in)famous case Wi Parata v Bishop of Wellington, the ethnocentric Chief Justice, James Prendergast, deemed the Treaty to be a “legal nullity”. After Wi Parata, it was generally held that iwi property “rights” could not be legally recognised unless established by statute. Such rights could exist only if created by the Crown. This was the mortar in the legal foundations of the subjection of iwi.
Two years after Wi Parata, in 1879, the Reverend H Tucker reflected on events in New Zealand since 1840 in his biography of Bishop Selwyn. Tucker was of the view that, in light of the experience that, wherever the European had trod, death seemed to pursue the aboriginal, the subjugation of MŠori was somewhat predictable. In a passage from his chapter “The MŠori War”, Tucker wrote:
The colonizing instinct of the Anglo-Saxon race, on which we are wont to boast ourselves, is too often but an euphemistic synonym for the “greed of the land” which in so many instances has led to the ultimate destruction of the rightful owners, until we have accepted as a philosophical axiom the vague assertion, so grateful to our pride and ambition, that “the inferior race is doomed to disappear in the presence of the superior”.
How sad had been the story, how discreditable the policy of our earlier colonization in the plantations of America, in New South Wales, and in Tasmania, was only too notorious, when the Government, in a fit of apparent compunction, determined that New Zealand should be a bright exception to the blunder of our former experiments.
Here we see Tucker refusing to accept some bastardised version of Darwin’s theory of natural selection as a tool for avoiding responsibility for what amounted to cultural genocide by the majority of his fellow colonists.
Commons’s concept of artificial selection, it is submitted, is a powerful tool with which to contemplate fundamental legal-economic processes, including the many roles of institutions in society. Institutions, as Commons emphasised, are not neutral, physically complete, independent, unchangeable substances. Rather, “they are human beings organized in permanent but slowly evolving relations”. Institutions develop and evolve through efforts to resolve conflict, and often become sources of conflict; they typically depend upon and also serve to re-create hierarchical structures inter-generationally; and they represent constellations of values and shape individual and collective identity. Commons sought to illuminate the ongoing valuational process concerning choices about institutions through his concept of artificial selection.
In pursuing questions related to the concept of artificial selection, Commons and his followers adopted a demythicising role. Some scholars from other schools perceive the demythicising role as dangerous and undesirable. In a 1932 article in the Journal of Political Economy, Frank Knight, the premier leader of many members of the Chicago School, articulated the importance of a belief system for both individuals and society and the service of economics in providing such a system. Knight wrote:
Education ... has this interesting feature, that there are many things about it which are obviously “true”, and it may be entirely proper to mention them in friendly conversation ... yet to “say” them publicly and officially would simply sink the ship. At least everybody assumes that it would, and the consequence is the same - it must not be and is not done. If this should turn out to be the one general and important principle of methodology in the entire social science field, the fact would undoubtedly be embarrassing to the profession, unless some way were found to keep it in the dark. ...
To inquire into the ultimates behind accepted group values is obscene and sacrilegious; objective inquiry is an attempt to uncover the nakedness of man, his soul as well as his body, his deeds, his culture, and his very gods. The point is that the “principles” by which a society lives in a tolerable harmony are essentially religious. The essential nature of a religious principle is that not merely is it immoral to oppose it, but to ask what it is, is morally identical with ... attack. ...
Like-mindedness in beliefs and ideas regarding itself is the really important thing in society, and to produce and maintain it is the really important function of education in the social field. That the unanimity has to do with symbols, and that a part of the task is to keep people from asking what they symbolize in any concrete sense, is a mere corollary; for nothing is more obvious than that any such questioning would turn like-mindedness into universal enmity and conflict. The teaching of social science on any considerable scale must be of this sort, and inevitably will be, and there is simply no problem.
Knight’s disciple James Buchanan also considered that difficult questions should be kept safely among the cognoscenti. Buchanan candidly admitted to Warren Samuels a preference for perpetuating myths of the free society:
It is essential for any ... genuinely individualistic ... social order ... that men act as if and think as if the process works in a certain way even if, from another vision, the facts may seem so different. ... The basic and necessary myths of the free society. These are my main concern, and, admittedly, I have been concerned about my own role in dispelling some of these. Once majority rule is shown to be the tattered relic that analysis must reveal it to be, what are we to think??? And of vital importance for our time men must not see the judiciary as overtly legislating, even though as scholars, we must recognize that judges do legislate and always have.
However, the propagation of the hegemonic Western “free society” myths and values has been, and still is, at the expense of the vitality of myths and values from other cultures. Many MŠori have experienced and expressed concern about the obnoxious aspects of majority rule (tyranny à la Alexis de Tocqueville and John Stuart Mill), and many are also cognisant that judges are indeed making law notwithstanding their refuge-seeking in doctrines such as the “public interest”.
With regard to Knight’s concern about “raising problems”, in New Zealand it is not a matter of raising them. The on-going questions include: whose group values, whose myths, whose gods, whose religion, whose language, whose order, and, perhaps most importantly, who decides? The concept of artificial selection invites us to think about the questions.
[*] Teaching Fellow, Department of MŠori, University of Canterbury.
 Darwin, Charles Journal of the Voyage of the Beagle (1836; reprinted in Barrett, Paul H and Freeman, R B The Works of Charles Darwin (1986) volume 3) 407.
 Commons, John R Institutional Economics (1934; reprinted 1961) 657.
 This article draws heavily from the present author’s PhD thesis: Dawson, Richard M The Treaty of Waitangi and the Fish: An Interpretation from Institutional Law & Economics (unpublished PhD Thesis, forthcoming, Department of Economics, University of Auckland, New Zealand).
 A bibliography of Commons’s writings resides in Commons, John R The Economics of Collective Action (1950, posthumous).
 Commons, John R Legal Foundations of Capitalism (1924).
 Commons, supra note 2.
 Commons, John R Myself (1934).
 Commons, John R A Sociological View of Sovereignty (1899-1900, reprinted 1965).
 Cited in Cohen, Felix S The Legal Conscience (1960) 53.
 Commons, supra note 4, at 41 and 81. In Legal Foundations of Capitalism, supra note 5, at 367, Commons wrote on the same point: “The state is [not] an entity having a separate existence and providing preeminently the service of security. But the state, in reality, is the officials in action; their action is the organization of violence according to due process of law. ... Security is not something abstract and separate, a kind of outside force ready to come in when property or liberty is violated. ... Property, liberty and voluntary organizations exist only to the extent that they are secure, and they are secure only to the extent and in the direction that officials give indication that they will choose to make them secure”.
 Commons, supra note 2, at 751.
 Commons, supra note 5, at 140.
 Supra note 9.
 Llewellyn, ‘The Effect of Legal Institutions Upon Economics” (1925) American Economic Review 665-683; Llewellyn, “A Realistic Jurisprudence: The Next Step” 30 (1930) Columbia Law Review 431-465.
 Pound, “Liberty of Contract” (1909) 18 Yale Law Review 454-487; Pound, “The Scope and Purpose of Sociological Jurisprudence” (1911) 24 Harvard Law Review 591-619, and (1912) 25 Harvard Law Review 140-168.
 Bromley, Daniel W Economic Interests and Institutions (1989); Bromley, Daniel W Environment and Economy: Property Rights and Public Policy (1991); Bromley, “Entitlements and Public Policy in Environmental Risks” in Bromley, Daniel W (ed) The Social Response to Environmental Risk (1992) 1-21.
 Medema, “Another Look at the Problem of Rent Seeking” (1991) 25 Journal of Economic Issues 1049-1065; Medema, “Making Choices and Making Law: An Institutional Perspective on the Takings Issue” in Mercuro, Nicholas (ed) Taking Property and Just Compensation (1992) 46-7.
 Mercuro, Nicholas and Medema, Steven G Economics and the Law: From Posner to Post-Modernism (1997).
 Samuels, “Welfare Economics, Power, and Property” reprinted in Samuels, Warren J and Schmid, A Allan Law and Economics: An Institutional Perspective (1981) 9-75; Samuels, “The Legal-Economic Nexus” (1989) 57 George Washington Law Review 1556-78.
 Schmid, “Nonmarket Values and Efficiency of Public Investments in Water Resources” (1967) American Economic Review 158-68; Schmid, “The Economics of Property Rights: A Review Article” in Samuels, Warren J (ed) The Chicago School of Political Economy (1976) 469-478; Schmid, A Allan Property, Power and Public Choice (1987); Schmid, “Institutional Law & Economics” (1994) 1 European Journal of Law & Economics 33-51.
 Gruchy, Alan Modern Economic Thought (1947) 237.
 Supra note 8, at 4.
 Commons, supra note 2, at 69.
 Ibid, 69-70 and 72.
 Commons, “Institutional Economics” (1931) American Economic Review 648.
 Commons, supra note 2, at 77.
 Ibid, 77-79.
 Ibid, 697.
 Ibid, 703.
 Ibid, 45.
 Ibid, 45-47, 51.
 Commons, supra note 5, at 299-300.
 Ibid, 239-40.
 On the subject of the “distribution of sacrifice”, see Arnoux, Dawson, and O’Connor, “Logics of Death and Sacrifice in the Resource Management Law Reforms of Aotearoa/New Zealand” (1993) 27 Journal of Economic Issues 1059-1096. On the subject of sovereignty as an object of capture and control, see Dawson, “Sovereignty and Withholding in John Commons’s Political Economy” in Samuels, Warren J (ed) The Founding of Institutional Economics: The Leisure Class and Sovereignty (1998) 47-75.
 Commons, supra note 5, at 228-9.
 Samuels, Warren J The Historicism of John R Commons (manuscript version, 1996).
 Commons, supra note 5, at 9.
 Ibid, 49-50 (the quote in the passage is from Pollock’s The Genius of the Common Law (1913)).
 Ibid, 50.
 Ibid, 376.
 Ibid, 376-8.
 Ibid, 379.
 Ibid, 241-242.
 Ibid, 204.
 Reprinted 1972.
 Cited in Ramstad, “On the Nature of Economic Evolution: John R Commons and The Metaphor of Artificial Selection” in Magnusson, Lars (ed) Evolutionary and Neo-Schumpeterian Approaches to Economics (1994) 67.
 Commons, supra note 2, at 636.
 For introductory as well as comprehensive discussions, see, eg, Bowden, “Tapu and Mana: ritual authority and political power in traditional MŠori Society” (1979) Journal of Pacific History 50-61; Firth, Raymond Economics of the New Zealand MŠori (1929, reprinted 1959); Te Rangi Hiroa (Buck, P H), The Coming of the MŠori (1950); Penniman, T (ed) Makereti (Maggi Papakura), Old Time MŠori (1938); Pere, Rangimarie Rose Ako: Concepts and Learning in the MŠori Tradition (Working Paper No 17, Department of Sociology, University of Waikato, Hamilton, 1982); Winiata, “Leadership in Pre-European MŠori Society” Journal of the Polynesian Society 214-220.
 Firth, supra note 48, at 258-262; Makereti, supra note 48, at 218-222; Best, “Notes on the Custom of Rahui” (1904) 13 Journal of the Polynesian Society 83-88.
 Marsden M and Henare, T A Kaitiakitanga (manuscript, November 1992) 21-22.
 Jackson, Moana The MŠori and the Criminal Justice System; A New Perspective: He Whaipaanga Hou (Part Two, 1988) 40-41.
 Firth, supra note 51, at chapter 9.
 Ibid, chapter 12.
 Irish University Press Series, British Parliamentary Papers (Colonies: New Zealand 1, 1840) 171.
 Supra note 3, book 2, chapter 2.
 As per Wakefield, E G England and America (1833, reprinted in Pritchard, M F Lloyd (ed) The Collected Works of Edward Gibbon Wakefield (1969)).
 Cited in Harrop, “The Companies and British Sovereignty” in The Cambridge History of the British Empire: Volume VII, New Zealand (1933) 67.
 Cited in McIntyre David and Gardner, W (eds) Speeches and Documents on New Zealand History (1971) 5.
 Henry Williams, in Carelton, Hugh The Life of Henry Williams (1874, reprinted and revised 1948) 286.
 Cited in Buick, T Lindsay The Treaty of Waitangi (1936) 72.
 Ibid, 75-76.
 Smith, Adam Essays Philosophical and Literary (1880) 230.
 Hobson to the Secretary of State for the Colonies, 15 October 1840; supra note 57, New Zealand 3, 311, 113.
 Swainson, William New Zealand and its Colonization (1859) 157.
 Supra note 3.
 William Martin to William Fox, 31 December 1863, supra note 57, New Zealand 13, 1863-64, sec 326, at 7.
 FitzRoy, Robert Remarks on New Zealand (1846) 22.
 Donald McLean to Colonial Secretary, 9 July, 1851; cited in “Report and Recommendation on Petition No. 240 of 1932, of Hori Tupaea and four others, Praying for Relief in Connection with Whanganui-o-Rotu (or Napier Inner Harbour) and Their Right of Property Therein” (Appendices to the Journal of the House of Representatives (1948) G-6A, 21).
 Taylor, Reverend Richard Past and Present New Zealand (1868) 111-112.
 Cited in Sinclair, Keith The Origins of the MŠori Wars (1961) 118.
 Cooper to Sinclair, 31 May 1852; cited ibid, 125.
 New Zealand Parliamentary Debates, 3 August 1860 (emphasis added).
 Colonial Secretary, Hugh Carleton, sent the following resolution to the Crown Law Office: “For a Native constituency implies, Native representatives; and what greater debasement to the House can be conceived, than the occupation of seats in it by men raised, as yet, but one step above barbarism - who would not only be able to comprehend the reasons adduced concerning the measure upon which they were about to vote, but even to understand the language in which those reasons would be given. What could be more debasing to the House than the inevitable endeavours of rival parties to catch the votes of the Native members - not by force of argument, but by any means available” (Appendices to the Journal of the House of Representatives (1860) E7, 5).
 Browne to Herman Merivale, 29 April 1856; cited in McIntyre, W David (ed) The Journal of Henry Sewell 1853-7 (1980) 103 (emphasis added).
 Native Land Act 1862, Preamble (emphasis added).
 As per Smith, Norman Native Custom and Law (1942) 7.
 The workings of the Native Land Act 1865 (and amendments) and its consequences have been the subject of repeated analyses. See, eg, Sorrenson, “Land Purchase Methods and Their Effect on MŠori Population, 1865-1901” (1956) 65 Journal of the Polynesian Society 183-199.
  NZGazLawRp 138; (1910) 29 NZLR 1123, 1149 (emphasis added).
 Ward, Alan A Show of Justice (1973) 185-186.
 Appendices to the Journals of the House of Representatives (1862) B4, 35-36.
 Quoted in Ballara, Angela Proud to be White? (1986) 92.
 Quoted in Simon, Judith (ed) Nga Kura MŠori (1998) 14.
 Ibid, 94.
 As per Waitangi Tribunal, Ngai Tahu Sea Fisheries Report (1992, Wai 27) 135.
 See, eg, the claim made by Hoani Korehe Kahu to the Mackay Commission, Appendices to the Journals of the House of Representatives (1891) G-7, 49.
 Appendices to the Journals of the House of Representatives (1881) G-8, 16.
 The Hon. Buchanan, (1867) New Zealand Parliamentary Debates 814-5.
 Te Rangi Hiroa, (1913) 167 New Zealand Parliamentary Debates 825.
 Cited in Buick, supra note 64, at 314.
 Ibid, 316-317.
 The foregoing paragraph draws from Mahuta, “Tawhiao” in The Turbluent Years: 1870-1900 (the MŠori Biographies from The Dictionary of New Zealand Biography, vol 2, 1994).
 Cited in Buick, supra note 64, at 320.
 As per “The MŠori Messenger” (1860) 7 Te Karere MŠori 43.
 (1877) 3 New Zealand Jurist (New Series) 72, 76.
 Tucker, H W Memoir of the Life and Episcopate of George Augustus Selwyn, DD vol 2 (1879) 156.
 Commons, “The Value of the Study of Political Economy to the Christian Minister” The Methodist Review, cited in Commons, supra note 8, at ix.
 Knight, “The Newer Economics and the Control of Economic Activity” (1932) 40 Journal of Political Economy 441, 448-9, 454.
 Buchanan and Samuels, “On Some Fundumental Issues in Political Economy: an exchange of correspondence” (1975) 9 Journal of Economic Issues 19.
 Tocqueville, Alexis de Democracy in America (1835, reprinted 1966) vol 1, 309-313; Mill, John Stuart Representative Government in Wollheim, Richard (ed) John Stuart Mill: Three Essays (1975) 247-271.