Abstract:
F. M. Brookfield argued in Waitangi and Indigenous Rights: Revolution, Law and Legitimation (1999) that the Crown had engaged in a 'notional' revolution in 1840, despite the nominal allegiance of Māori over most of New Zealand. This thesis contributes a modified and alternative view: that gradual legal transformation characterised the transition from Māori custom law and rangatira leadership to the common law in the period from 1835 until about 1860. The thesis argues that prior to 1860 the boundaries between both traditions were obscured, blurred and highly ambiguous. The piecemeal, slow and often vague transformation of whose law prevailed meant that in the post-1860 period legal authority shifted from rangatira to the Crown. During the transitional period between these two phases, the relationship between Māori custom law and the common law became increasingly contradictory, contested and conflicted.
In order to locate the argument that substantive distinctions existed between Māori custom law and the common law approach within a solid intellectual framework, this thesis considers the complex, unpredictable and varied responses of individual rangatira to legal policies in order to demonstrate both change and continuity. The thesis examines Māori custom law in the context of legal positivism and uses the tools of comparative legal analysis and postcolonial criticism to advance the central argument. The first and second chapters focus on setting the legal and scholarly foundations of the thesis, while the third, fourth and fifth chapters develop the argument in respect of the period before 1860. The thesis does this by taking certain accepted legal categories—criminal law, land law and commercial law—and it examines how these paradigms operated within tribal contexts. In contrast, chapters six, seven and eight analyse the period after 1860 using these same broad legal categories.
The thesis concludes that the fluid, negotiated and mediated model of sovereignty was pivotal before 1860 and sovereignty only became omnipotent, unitary and supreme after 1860. This was not immediate, but was a gradual process. The revised and modified view of sovereignty offered by this thesis has significant implications for the future construction of constitutional models in New Zealand and for legal and historical scholarship.
