Saturday 13 January 2024

BOOK REVIEW: 'The English Text of the Treaty of Waitangi' - PART FIVE: Getting Rights Right

There have been two few thorough reviews of Ned Fletcher's weighty 2022 tome 'The English Text of the Treaty of Waitangi -- so I thought I'd do the job myself. It's been a journey for us both that's taken several days (still, what else do you do on these long summer days but read long-form blog posts?) but at least the journey will have proved rewarding, I hope.

But we are now approaching our end. In this penultimate part of my review,  I assess the book's approach to what one author has called "the concept to which we owe our lives—the concept which made it possible for us to bring into reality everything of value that any of us did or will achieve or experience.”

That concept is rights. And if there's one word that features frequently in the English text of the Treaty it's rights. (It's there in every Article, and the Preamble.) Yet if there's one concept in Fletcher's book that is most poorly treated, it is rights. And since this book will end up as recommendations to government -- and as John Locke maintained, the reason for setting up governments is the protection of rights -- it seems vitally important to quickly correct this dangerous oversight ...

John Locke (1632-1704): Locke’s idea that the rights to life, liberty, and property are 
natural rights that precede the establishment of civil society influenced English law, 
Britain's 'Glorious Revolution' of 1688, and modern liberalism more generally.

6. Rights: Collective v Individual 

ONE OF FLETCHER’S BIGGEST OVERSIGHTS is his handling of the concept of rights, most especially of property rights. The word appears in the Treaty’s English text in each of the Articles and the Preamble [1], more than twice as many times as the word “protection” (which, as mentioned above, only ever occurs in association with the word "rights") and much more than the word “guardianship” (which fails to appear at all).

So the concept needs a thorough examination, but Fletcher’s treatment is almost entirely legalistic – excellent as far as it goes, but this is not nearly far enough. ‘Rights in law’ is a different thing to ‘things that should be recognised as rights.’ Lawyers talk about the former; philosophers and Colonial Office Under-Secretaries the latter.

Fletcher talks almost solely about rights-in-law. He records debates on legal title, rights of occupancy, customary versus common law rights, territorial versus sovereignty rights, and different contemporary views on Māori property rights. All good as far as that goes. But he never once ventures to discuss the philosophical foundation of rights themselves, or in what manner contemporaries viewed this foundation (are they God-given, equal and eternal? are they simple legal fictions? or are they, as Jeremy Bentham claimed, “nonsense on stilts”?) Never mind discussing how Māori understood them at the time!

Why is that important? It's important because the purpose of government is the protection of what this word represents, and every one of the times that word is used in the text (and it's used four times), the writer means by it something very specific. Something that is their conception of what it means, based on their own understanding at that time.

It really does deserve a whole chapter. In this book, such a discussion merits barely a paragraph. [2] Again: Bad Ned.

He has chapters on the history and management of Empire – good ones, all – but the book would benefit immensely from a chapter on the history and changing understanding of individual rights, and the application and (mis)understanding of property rights. Because, if properly understood in their full philosophical and historical context, this would change the title and content of his final chapter: “The Meaning of the Treaty.”

Again, why does this matter so much? It matters because so much now depends upon it. So we need to know, all the way down to the root, what it was the framers meant – each of them – when they wrote that word on those pieces of paper. 

It matters most of all because if the Treaty is about “protection” of Māori, as Fletcher claims, then as the Preamble makes very plain that was to manifest as “Protect[ion of] their just Rights and Property.” Which seems vastly different to Fletcher’s conclusion that it must lead to inter-tribal self-government. So it does matters what this means philosophically. Government protection of a person’s “right to” or “rights in” something is vastly different to the government protection or guardianship of a person or group. One is the foundation of a liverty-loving land; the other begins to build a paternalistic Welfare State.

What matters then, in best understanding the Treaty’s undertakings, is how the Treaty’s framers themselves understood the nature of rights – and for that we need to appreciate how the understanding of rights had changed from their high point in the Enlightenment era. By 1840, in what I’ve called above a transitional era, they were (in a phrase) mostly taken for granted. As Ayn Rand explains,

“The concept of individual rights is so prodigious a feat of political thinking that few men grasp it fully—and two hundred years have not been enough for other countries to understand it. But this is the concept to which we owe our lives—the concept which made it possible for us to bring into reality everything of value that any of us did or will achieve or experience.” [3]
For a concept that is so vitally important, the full understanding of the nature of individual rights and their derivation has never too widespread, and rarely fully defended even in their heyday. (Their defence was assumed, but never fully made.) And in today’s polluted intellectual waters, any spotlight on rights at all is generally only to grant bogus or group rights while denying genuine individual rights. [4] (Even the expression “'individual rights' is a redundancy … [s]ince only an individual man can possess rights…. But the expression 'collective rights' is a contradiction in terms.” [5])

The concept of individual rights and their link to individual liberty developed slowly, reaching its apogee in the Enlightenment. Hugo Grotius (1583-1645) “is often credited with ushering in the modern conception of rights,” [6] initiating “a new way of understanding the sphere of control belonging to individuals” [7] (defining and protecting what Robert Nozick later called an individual’s “moral space” in which one enjoys the freedom to act without let or hindrance; your own turangawaewae).

At root this idea of rights “protects one thing: [an individual’s] freedom of action” -- property rights being “necessary to protect freedom of action and the right to life” such that the right to property is “a logical outgrowth of the freedom to which individuals are entitled.” [8]

The concept’s high point was in John Locke’s widely influential Two Treatises and their application in 1689 and 1791 in the UK’s and US’s respective Bill[s] of Rights. In his writing, Locke famously demolished the age-old Divine Right of Kings, arguing that legitimate rule arises not from a hand from above, but from individuals’ right to life, liberty, and property -- and their consent to be governed in order to protect those rights. He went further, saying that rulers who either usurp or fail to protect these rights should be thrown out -- by force, if necessary.

This wasn’t just a blow to monarchy by divine appointment. It was also a blow to the idea of their being a natural aristocracy. As Thomas Jefferson framed it, with “all eyes … opened, or opening, to the rights of man, the general spread of the light of science [lays] open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favoured few booted and spurred, ready to ride them legitimately, by the grace of god.” [9]

The concept of individual rights (and the consequent notion of the “consent of the governed”) created and underpinned constitutional government in the US, and the new constitutional monarchy of the British Empire, but it was truly neither palpable nor self-evident, and was never fully defended even at the time -- and never widely enough understood. So by the mid-nineteenth century, when the Treaty was being written, many were ready at best to pay the idea only lip service – discussing rights only in the legalistic sense, say --and property rights in the sense of those written about by John Locke were at best only assumed. And they were also increasingly under attack, no less so than from Bentham and his “nonsense-on-stilts” school.

So in essence, 1840 represents a transitional period – Jeremy Bentham’s utilitarian notion of government creating “the greatest good for the greatest number” was already overturning Locke’s individualistic rights-based view even before it had acquired a full and certain philosophical defence. “Fairness” was taking over from “freedom.” 

Little wonder then that Stephen himself, an evangelical intellectual who “must be classed among [Bentham’s] utilitarians,” [11] overlooked in his drafted instructions to Hobson any reference to rights beyond a single “admission” of the Chiefs’ rights of sovereignty already acknowledged in the 1835 Declaration of Independence! [12] It was left to the slightly more down-to-earth Busby, as Fletcher adroitly recounts, to add these references in both the Preamble, and in a new second Article so that the Treaty might “achieve the desired object.”

The contrasting attitudes of Busby and Stephen on this point reveal much about how rights were (mis)understood by different folk in different parts of Empire at that time – and what that might mean for what the framers thought they were promising in the Treaty.

The Treaty talks of “rights,” “property rights,” and “rights and privileges,” but it uses the concept as it was only loosely understood in 1840. And by this time, in the mid-nineteenth century, both the concept of rights and property rights had much less definition – and were often understood, at best, only in the instrumental, legalistic sense that Fletcher often uses.

Busby nonetheless thought it vitally important to include these important commitments to protect Māori rights, even if his own understanding of what that meant was flawed.

WHAT DO I MEAN BY FLAWED? I mean that the rights clauses he inserted are confused between ‘collective rights’ (which are a contradiction in terms) and individual rights (which are of the utmost importance) -- a crucial distinction that his wording often blurs.

The confusion begins with Stephen’s instructions. The “admission of their rights” [emphasis mine] in which he instructs Hobson to take note are a collective right and, in Stephen’s formulation, are confused between a territorial and a sovereignty right. A poor enough start. (To put it plainly, it is a different thing to protect “New Zealanders’ rights” than it to protect “every New Zealander’s rights.” The latter will lead to the former, if is to mean anything, but promising only the former will lead only to the destruction of the latter.)

Busby continues the confusion, as we shall now see. If we again follow Fletcher’s re-creation, Busby’s clauses which were his contributions are as follows [emphases are mine]:

  • Preamble: Her Majesty Victoria ... regarding with her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to Protect their just Rights and Property ...
  • Second Article (Part One): Her Majesty ... confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their ... properties, which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.
  • Third Article: ... Her Majesty ... extends to the Natives of New Zealand Her Royal protection, and imparts to them all the rights and privileges of British subjects.

First of all, as said already, it’s clear that if “protection” is to mean anything at all, then what we’re talking here is a protection of rights (of the just Rights and Property of Chiefs, families and individuals). And not the protection of a welfare right but, even in this era in which the understanding of rights is in transition, but the protection of “just Rights and Property.” But unfortunately, these are offered only under the feudal shadow of Chiefly, Tribal or collective rights.

Of course, the Preamble talks only of Chiefs and Tribes and of protecting their just rights and property. The Second Article clarifies this somewhat, declaring (in the first part, which was Busby’s addition) that the protection and recognition extends as well to the property rights of native families and individuals. So, good for Busby.

Part Two of the Second Article however, which derives from the Stephens/Normanby instructions, confuses matters altogether. It says:

  • Second Article (Part two): But the chiefs ... yield to Her Majesty the exclusive right of preemption over such lands as the proprietors thereof maybe disposed to alienate ...
Who exactly are “the proprietors” of which lands? And how does it affect the property rights of native families and individuals? The Article itself doesn't make this clear, but it's the Chiefs who are the signatories here, just as the Barons were at Runnymede. So families and individuals have been guaranteed property rights in whatsoever they may rightly possess, but their right to alienate their property (one of the fundamental rights associated with property) is denied them by the their Chiefs yielding a right that is not theirs to yield -- a veto power confusing things for those individual and family proprietors, where their Chiefs “yield” to the Crown a preemption right over whatever they may rightfully possess and may wish to alienate. So some boots and spurs were to remain, it seems.

Note that twenty years later the very able William Martin (New Zealand’s first Chief Justice) observed that “This Tribal right is clearly a right of property, and it is expressly recognised and protected by the Treaty of Waitangi. That Treaty neither enlarged nor restricted the then existing rights of property. It simply left them as they were. At that time, the alleged right of an individual member of a Tribe to alienate a portion of the land of the Tribe was wholly unknown.” [13] [Emphasis mine.] Which is fine. At that time.

The understanding of one Treaty framer and one of New Zealand’s most far-seeing Chief Justices seems to be that, while the alleged property right of an individual member of a Tribe was at that time wholly unknown, if it were to carry out its Treaty promise then it was the job of government to clarify, recognise, and protect whatever those property rights might be. That this did take some time (or if it’s ever even fully happened) is to my mind a grave failing in government’s duty – a failing that did of course become a leading cause in the “Taranaki Question” about which William Martin was writing in his 
1860 pamphlet.

But even Martin was misled by this misbegotten notion of collectivised rights, arguing in that same pamphlet that “the Natives … retained what they understood full well, the ‘tino Rangatiratanga,’ the ‘full Chiefship’ in respect of all their lands. These rights of the Tribes collectively, and of the Chiefs have been since that time solemnly and repeatedly recognised” [14] – a statement of collective rights that is almost feudal.

Ayn Rand’s statement on so-called collective rights makes the confusion plain, I think: “The notion of 'collective rights' (the notion that rights belong to groups, not to individuals) means that 'rights' belong to some men, but not to others—that some men have the 'right' to dispose of others in any manner they please.” Yet this is what this confusion continues to deliver, and to protect.

In his Two Treatises of Government John Locke used the concept of individual rights to demolish any support for the mystical notion of the Divine Right of Kings. Relying on John Locke, Thomas Jefferson denied there being a class of people born with saddles on their back to be ridden by a favoured few. Yet here, 180 years later, a British Chief Justice is using a bastardised notion of collective rights to protect a Divine Right of Chieftains – to (apparently) continue disposing of their serfs, slaves, and their property – in any way they please.

It demonstrates how the new more collective interpretation of rights could poison even an enlightened promise to protect them.


=> PART ONE, the Introduction to the series
=> PART TWOErrors and Omissions
=> PART THREEGetting Slippery With It
=> PART FIVEGetting Rights Right
=> CONCLUSIONRangatiratanga as Liberty

[1] Five times altogether, if one counts as one of those Article Two’s property rights guarantee of “full, exclusive & undisturbed possession of their Lands &c.”

[2] I’m being kind. I didn’t find one.

[3] Ayn Rand, ‘A Nation’s Unity,’ The Ayn Rand Letter, Vol II, 2, p. 3

[4] A good test of a “bogus right” is if it demands something of someone more than just leaving them alone. A right to the pursuit of happiness, for example, is different to a right to happiness. One recognises the moral space to pursue that; the other demands it be provided. By whom? By someone. These later kinds of bogus rights are sometimes called “positive rights.” And just as bad money is said to drive out good money (Gresham’s Law) so too the multuplication of bogus rights tends to drive out genuine rights. 

[5] Ayn Rand, ‘Collectivized Rights,’ in The Virtue of Selfishness, New York, Signet, June 1963

[6] Tara Smith, Moral Rights & Political Freedoms, p.18 

[7][7] J.B. Schneewind, ed. Moral Philosophy from Montaigne to Kant, Vol. I, (New York: Cambridge University Press, 1990), p. 89

[8] Tara Smith, Moral Rights & Political Freedoms, p.5, 189. On Locke, Richard Epstein writes

"The starting point in Locke and in common law is a state of nature: in that state of the world, people own their own persons, but they do not own the full array of natural resources. How then do we match up specific resources with specific persons?
    "The general rule for an individual, and to some extent for a group, was that ownership of a property or resource went to the individual or group who possessed it first. Often it is claimed that such a rule of first possession is highly individualistic, and effectively ushers in laissez-faire capitalism by creating strong sets of individual rights that are then subject to voluntary exchange. Although there is some truth in this assertion, that criticism underestimates the subtlety of the common law rule. For individuals can band together by kinship arrangements or through contracts, and agree that if one of them acquires title, the right is shared by the larger kin group or organisation rather than vested in that person alone. It is thus quite possible to marry the rule of first possession – normally thought of as individualistic – to a regime with collective ownership of property.All legal systems have elaborate rules that regulate joint tenancies or tenancies in common and reject the proposition that any one co-owner is allowed to exclude another co-owner from the use or possession of the property. 
    "However, any system of collective ownership gives rise to a second level of problems that confronts all societies, whether ancient or modern. Governance rules must be determined within any jointly held property. Who decides how the resources are to be used? What is a fair distribution of the ownership shares? And most importantly, who determines whether a property is to be alienated, either through a complete sale or through some limited partial transfer?" (Richard Epstein, 'The Treaty of Waitangi; A Plain Meaning Interpretation,' NZBR, 1999, p. 4, )

[9] Thomas Jefferson, Letter to Roger Weightman, June 24, 1826,

[10] See on this David Hackett Fischer’s comparison of the US and NZ founding in his Fairness and Freedom: A History of Two Open Societies, Oxford University Press, (2012)

If we take as our signposts of decline the great classical economists and their writing about private property, we note that "Adam Smith, David Ricardo, and Thomas Malthus, among others, understood its importance but took its existence as a given." They assumed it rather than defended it. And after that the descent was swift. "Of the[se] earlier economists, Malthus had delved into the subject a little more than others ... [penning] an essay for Encyclopaedia Britannica, which includes perhaps the best argument for property made by any economist of his day." But his arguments were not so much philosophical as rhetorical. 

Only "after the Napoleonic Wars [did] it begin to dawn on people in England that property really was no longer immune from criticism" and might need a decent defence -- but at the philosophical level, none ever came. "J.R. McCulloch's Principles of Political Economy, published in 1825, included 12 pages in its defence," but the defence was on a utilitarian rather a moral or philosophical basis: "The right of property, he wrote, was 'the foundation on which other institutions of society mainly rest.'" Which is true. But good as it was, his own argument was based on the results of property-protecting institutions rather their moral basis --on outcomes rather than philosophical foundations. 

In his history of property rights, Tom Bethell "tells the story of the profession’s subsequent long descent toward neglect of private property’s importance. So steep was the descent," he recounts, "that [by] the late nineteenth century, Alfred Marshall averred that people could be trained 'to feel the public interest as their own.' Likewise, Frank Taussig argued in 1911 that a 'higher moral sense' would soon make people more public-spirited." (Tom Bethell, The Noblest Triumph; Property and Prosperity Through the Ages, St Martin's Press, New York, 1999, pp. 107-8)

[11] (Knaplund, p. 15),

[12] Normanby to Hobson, 14 August, 1839 (as drafted by James Stephen): “I have already stated that we acknowledge New Zealand as a sovereign and independent state so far at least as is possible to make that acknowledgement in favour of a people composed of numerous dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act or even deliberate in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. …” [Emphasis mine.]


[13] William Martin, The Taranaki Question (Melanesian Press, Auckland, 1860) p. 

[14] William Martin, The Taranaki Question (Melanesian Press, Auckland, 1860) p. 10

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