Wednesday 10 January 2024

BOOK REVIEW: 'The English Text of the Treaty of Waitangi' - PART TWO: Errors and Omissions

Over summer I took on the project to read and review Ned Fletcher's important 2022 book on 'The English Text of the Treaty of Waitangi.' I posted Part One of my review yesterday.

One senses that the book, with an Introduction by Supreme Court Justice Joe Williams and endorsements already by the likes of historian Tony Ballantyne and former Waitangi Tribunal chair Eddie Durie, will quickly become the favoured mainstream interpretation of the Treaty.

But this doesn’t mean it’s correct....

BOOK REVIEW: 'The English Text of the Treaty of Waitangi' [Part Two]

1. Omissions

TO MY MIND, FLETCHER MAKES several unfortunate omissions that help lead him astray. Among them is the non-inclusion of what I’ve called above “the missing chapter,” which is perhaps defendable. But in a book which discusses in large part how and by whom rights are acquired in bare land (or how they may not be acquired) not to mention John Locke at all -- whose writings form the very foundation of such discussions --- or how his views permeate throughout British law and culture is, to say the least, bizarre.[1] 

Bad Ned.

But nor does he mention the 1860 Kohimarama conference, not the briefest reference – yet that crucial month-long meeting was a reaffirmation by 112 Māori chiefs of their understanding of the document they'd signed and lived under for twenty years thereafter. [2] True, Fletcher’s role is to expand our understanding of the English text, not the chiefly understanding of it, but when he relies for his conclusion, in part, on the minimal accounts of discussions at various Treaty signings, it seems strange that he wouldn’t call at all upon the more substantial accounts by many of those same parties (including clear statements by the sovereign power) after two decades of experience with the Treaty in operation.

Adam Smith too is another who doesn’t make the cut, or only in passing [3] – despite his demonstration of colonisation being a net cost to the metropole, underpinning in part the lack of enthusiasm for the business from the Colonial Office, and most economists of the time. [4] The only classical economists who do appear qua economists are Malthus, whose pessimism about population growth in Britain’s small isles helped fire in some the mid-century enthusiasm for colonial projects, and J.S. Mill, who (unfortunately) helped set off the misguided project of the later Liberal Imperialism.

Not exactly an omission, but a call for more, is signalled in the book’s concluding and summarising paragraph, wherein Fletcher correctly observes that:
Although the Treaty was not without precedent, it was the product of Normanby’s instructions, which themselves represented James Stephen’s considerable experience of Empire and the intellectual ideas of 1839. [5]
By my reading, there are four claims in this short paragraph, three of which Fletcher thoroughly and enjoyably documents for the reader. The last of which however (the ideas of 1839) I fear is too lightly touched upon -- especially since his book's aim is to get inside the minds of the framers.

Getting inside the mind of another time is never an easy task, although the intellectual currents of 1839 are at least well documented. So there would have been plenty to discuss. If the book is missing a chapter on rights and their evolution, I would also have welcomed one on the effect of all these swirling intellectual currents landing on these shores at that particular point in Western intellectual history. In part it could discuss in fuller terms:
  •  The new humanitarianism and “equalitiarianism” behind the anti-slavery movement
  • The decline of Enlightenment ideas and optimism in the face of Malthusian pessimism, and the new Evangelism
  • The consequent decline, before their fullest development and defence, in the understanding and application of individual and property rights.
  • The rise and ongoing decay of the common law, especially the Lockean principle of establishing title.
  • The rise in Utilitarianism, and its collectivistic notion that, rather than protecting individual rights, it is government’s job to create “the greatest happiness for the greatest number” – and the slowly increasing interest in the politics of the group, rather than the individual
  • The decline in individualism from its Enlightenment heyday, and the rise of a duty-based ethics.
In terms of the intellectual currents pushing events forward, 1839 was in some ways a transitional era – a post-Napoleonic moment midway between the full-blown reason-individualism-capitalism moment of the “High Enlightenment” and the full-blown utilitarianism/socialism of the century’s end.

Yes, it might take the book’s 529 existing pages out beyond what most reasonable publishers would contemplate, but it would I think lead to greater accuracy, less error, and a deeper understanding of the ideas behind the words –- not to say that such a fuller study may even produce a different conclusion to the book’s present one. So not a trivial thing when this book is going to have the impact I expect it will.

A model for this might be an exceptional recent book on the United States’s own founding document, which makes claim to be a “new moral history” of America’s Revolutionary Mind

Analysing chapter by chapter the ideas promulgated in each important phrase of the US Declaration of Independence (which, of course, influenced in small part our own) the Revolutionary Mind's author explains that by a “new moral history” he means analysing what people do by the ideas they hold and follow. 
This approach [says the author] is not simply a history of the development of certain moral theories, although it can be that in part. Its primary goal is to examine the intersection between moral thought and moral action, between what people say and what they do (or don’t do). The new moral history studies the what, why, how, and when of moral reasoning, and then it looks for the connections with the what, why, how, and when of moral action…. Thus the new moral history puts the thinking back into ideas, the judgment back into intentions, and the volition back into actions. [6]
The book's chapters analyse in philosophic and historical detail what the Founding Fathers meant (or thought they meant) by the Declaration’s ringing phrases and concepts that impelled them to act -- the very concepts that founded the American Republic -- ideas such as “self-evident truths,” “equality,” “rights” “life, liberty, and the pursuit of happiness,” and “revolution.” 

A similar approach to a “moral history” of the Treaty and the “intellectual ideas of 1839” that produced it might usefully analyse, in a similar way, the phrases and concepts of the Treaty such as “protection,” “rule of law,” “tribalism,” “rights – collective and individual,” “property rights,” “sovereignty,” “governance,” “order and peace,” and “self-government.” You might say it would be a full examination, in context, of the Principles of the Treaty. (Let's throw in today's two later additions as well, perhaps: "partnership" and "reciprocity.")

This would be a valuable work on its own. And in my view, it would at least have avoided some needless error in Fletcher's book.

2. Errors

THE BOOK HAS SEVERAL ERRORS. Well, I would call them errors. Among them:

He has Hobson claiming Tamati Waka Nene expressed “confidence” at Waitangi that (in Fletcher’s words) “the Governor would be a ‘father’ to Maori and would protect their customs.” [p. 332] But this isn’t what Nene said. As Colenso records, he called the Governor “a Father, a Judge, a Peacemaker.” These are two different things – the latter providing much less support for Fletcher’s notion of active government protection.

He misunderstands satire. Looking for support for his thesis of Maori self-government under British protection, he cites what he calls the New Zealand Company’s “supportive” opinion of the Treaty in their 25 April 1840 Gazette as (in Fletcher’s words) “an arrangement of ‘union’ and ‘confederation’ between ‘a civilized and a savage stage by Treaty’.” At this point presumably Mr Fletcher would like us to forget the Company’s famously hyperbolic statements such as the one by which he titled his original thesis: that the Treaty was merely “a praiseworthy device for amusing and pacifying savages.” The notion of “union” and “confederation” seemed to be offered to us by the Company more for our amusement than our enlightenment.

He assumes the absence of specific wording means something isn’t ruled out. Most egregious on this count is his argument that in not containing any “explicit recognition of Māori self-government and custom” [p. 526] the Treaty nonetheless offers “textual pointers” towards this conclusion. This is laughable. One of these pointers, he says, is that “the promise of ‘full, exclusive and undisturbed possession’ recognises [his word] that Māori society was to be left free to regulate itself.” This is a farcical confusion of a property right with a sovereignty right -- the right to a monopoly of force (which is what government is) with the right to the peaceful enjoyment of property (the basis of English common law). It’s the sort of confusion that you would expect a practicing lawyer to avoid.  (That said, he is a prosecutor.)

He also strangely ignores the general principle of British-based law, permitting any action to an individual citizen unless strictly prohibited, but action to government only when specifically allowed by law [7] -- setting out the “moral space’ in which an individual may act. We see this when he assumes, for instance, that Lord Russell's instructions calling for “due regard” to unspecified Maori customs meant legal protection for them all, rather than (as Russell specified in his December 1840 instructions) that these were to be “borne with, until they shall be voluntarily laid aside by a more enlightened generation.” [p. 470]. Equally, “no clear support” for “interference with Māori tribal organisation and customs” (from those same instructions) strangely becomes, in Fletcher's view, clear support for their ongoing and permanent legal protection. [p. 471]

Odd. Or intentional?

His conclusion, remember, is that “the Treaty was understood to leave intra-tribal government undisturbed,” and to grant to all Māori "an additional and special status." "Perhaps the most compelling evidence” for this view, he offers (asking that word “perhaps” to do a lot of work) “is found in the explanations given at the Treaty signings … discussed in Chapter 19.” But his adduced evidence here is far from compelling. It was in this chapter that I began making notations under the heading “Slippery” … 


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

[1] There is in truth one fleeting reference that cries out for more, on page 360, in outlining reasons for the eclipse of North American Indian property rights, one being that with "the increasing prominence in national consciousness of the nomadic hunters of the Great Plains, it came to be thought -- or at least it became convenient to think-- that Indians did not cultivate the land and, on Lockean notions, had no property in it." But the conversation simply continues on with other reasons for that eclipse, and then moves on altogether, never coming back to the "Lockean notions."
   More's the pity.
    Which is especially puzzling given the great importance in our own history of the "waste lands" debate, which bears directly on the point that is so well missed above.
       Even more bizarre is that in the book he has very little discussion of wider political views on sovereignty that would have influenced the Treaty's framers but, in his thesis, on which this book is based, he cites with apparent approval Thomas Hobbes's 'might-is-right' view on sovereignty (see below), which had already been usurped by Locke's liberal attitude, still widely understood (in 1840), in which any "divine right to rule" is overthrown, sovereign authority comes from the consent of the governed, the sovereign's job is protection of individual rights, and if he oversteps this, exercising "power beyond right," he can be turfed out. All of which is surely more germane to the present context than old Mr Hobbes's Leviathan.
(Fletcher quotes Paul McHugh in his thesis, claiming that Māori "would have had to have been told that sovereignty was like 'mana,' 'rangatiratanga,' and 'kingitanga'—though impersonal, unlimited in its law-making scope and not obviously sacred. They would have had to have been told in the words of Thomas Hobbes, one of its greatest theorists, that the sovereign state was a 'mortal God': Leviathan, ruler of the proud, made by the proud to keep themselves in awe and to avoid bellum omnes contra omnium—the war of all against all." This, he says, "is quite possibly the sort of view held by other historians [as well], such as [Ruth] Ross, without being made explicit by them." [Fletcher, 2014, p. 72] If so, again: more's the pity.)
Fletcher's inexplicable oversight of Locke's importance is in marked contrast to Richard Epstein, who says:
"To me this was indeed a strong Lockean document, which is the more congenial because Lockeans did not think that title started with the Crown and worked its way down to the people through feudal conveyances. People like Hobson and the missionaries may not have been sophisticated, but at least they were reasonably familiar with current political ideas....
    "How difficult or complicated is it to be a Lockean? It may be very difficult to explain all the elegant justifications and subtleties of a Lockean constitution. I have spent the better part of a lifetime preaching its virtues to many unresponsive audiences, and I know how long it takes to get the full conceptual framework across, and how long it takes to defend. But if you believe the Lockeans, the implementation is somewhat less complicated.What the British side could identify in 1840 were various elements of the framework: private property, neutral sovereignty and equal subjects.This was not a trivial set of achievements. Compared with events elsewhere, I would regard the Treaty of Waitangi, even if construed in a way that Maori today would find utterly unacceptable, as a triumph for its time. It may be true that Maori saw it as giving sovereignty to Maori. But internally it reads as a consistent Lockean document, so that if you pull out one strand, the whole Treaty will start to unravel." (Richard Epstein, 'The Treaty of Waitangi: A Plain Meaning Interpretation,' NZBR, (1999), p. 19) 
[2] Ngati Whatua leader Pāora Tūhaere declared there: 'The Treaty is right, but it came in the time of ignorance and was not understood. The assent of Ngāpuhi was given in ignorance otherwise why did they not consider that they had acknowledged the Queen instead of turning round and stirring with their own chief [Hōne Heke]?' Te Ara records "Tūhaere went on to cast doubt on the understanding shown by Māori who had signed the treaty in places other than Waitangi. In his opinion, all Māori leaders should have conferred on the original agreement. 'But this [conference] is more like it; this is the real treaty upon which the sovereignty of the Queen will hang because here are assembled Chiefs from every quarter'."

[3] Not at least in the index, although he does appear on page 37 to be wheeled out as an early non-race based delineator of so-called “stadial theory.”

[4] Schumpeter summarises the classical argument against Colonies [which] used to be acquired for the sole purpose of being ruled and exploited in the interest of the mother country and of keeping other nations from doing the same thing. From the Manchester school standpoint there is not even an economic argument in favour of doing this. Still less is there a political one. Colonies exist for themselves just as do any other countries; they should be self-governing; and they should neither accord to, nor be accorded by, the mother country any particular commercial advantages. Nor did all this remain in the realm of either philosophy or agitation. Some practical progress was made toward the goal. England’s Canadian policy, as out-lined in the [1839] Durham Report, was for the time being the most important step. There were many backslidings, of course.” Joseph Schumpeter, History of Economic Analysis, Allen & Unwin, London (1954), 1986, p. 376

[5] Fletcher, p. 529

[6] Thompson, C. Bradley. America's Revolutionary Mind: A Moral History of the American Revolution and the Declaration that Defined It (p. 6-7). Encounter Books. Kindle Edition.

[7] Sometimes called the “general power of competence,” or the legal maxim of “Everything which is not forbidden is allowed.”

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