Monday, January 6, 2014

Jones on Maori Legal History

Carwyn Jones, Victoria University of Wellington Faculty of Law, has posted The Scope and Significance of Maori Legal History, which originally appeared in Te Pouhere Korero 3 (2009): 45-62.  Here is the abstract:    
Credit: Library of Congress
While legal history is a field that has developed considerably in Aotearoa in recent years, very little consideration has been given to the study of Maori legal history, either by historians or lawyers/legal academics. An exploration of what it is that comprises the scope of this field and the various sources of Maori legal history could assist in developing our understanding of the landscape of Maori history and the parameters of both Maori history and legal history in Aotearoa.

Many people would consider Ma-ori legal history to be the study of the historical development of laws that relate to Maori. But a study of the historical context only of legislation and case law that affects Ma-ori is in fact just a small part of this field. This approach has tended to derive from the twin assumptions that there is no distinct Ma-ori legal system that has either operated historically or operates now. Once we recognise that both these assumptions are false, we can proceed on the basis that the field is primarily concerned with the historical development of the Ma-ori legal system and therefore the sources students of Maori legal history must focus on are not only the historical context of cases and legislation, but the historical context of changes in the Maori legal system – what are the legal-historical significance of the Kotahitanga Parliaments or the establishment of the Kinigtanga? What changes in the way authority operates and behaviour is regulated in Maori society do movements like these represent? 
On the other hand, it should not be forgotten that the regulation of behaviour in Maori society has, since 1840, to greater or lesser degrees, been governed by both the Maori legal system and the colonial legal system. Consequently, I argue that the study of Maori legal history must include both Maori sources and colonial legal sources. This approach can therefore develop our understanding of what constitutes both Maori history and New Zealand legal history.

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