A Response to Critics, or, The Law is an Ass that tells Great Stories
Just Left propelled things forward by usefully distinguishing two different versions of New Zealand’s constitutional history in current circulation. Version 1 is similar to the one I’d offerred earlier. The plot of this story is that the Crown was unable to exercise sovereignty in New Zealand until its agents had obtained a treaty which effectively transferred aboriginal rights to the Crown. But more on this later. Just Left summarises version 2 like this:
There's another version, which one might call Version 2. In this version, the British Crown acquired sovereignty by right of "conquest" (the North Island) and "discovery" (the South Island), as gazetted in London in October 1840. The Treaty of Waitangi did not have any impact on this, which is why in judicial decisions in the latter part of the 19th century, and into the 20th, it was often declared to be a "simple nullity." In this version of our history, the Crown has been sovereign since it asserted its sovereignty, and no legal obstacle exists to it continuing in that mode. Aboriginal title was, arguably, extinguished by the English common law that arrived with the Crown.
The problem as I see it with this version is signalled in the last sentence. Where the British empire expanded into regions inhabited by indigenous peoples, the common law dictated that aboriginal rights of sovereignty pre-existed the right of the Crown. Sovereignty could be transferred by force or by treaty, but it had to be transferred. That’s why the British were so keen to establish treaties. It took a great deal less work than pure force, and it provided great optics. Of course, individual circumstances might mean that this process was not scrupulously followed. Take, for example, the situation that occurred in Australia, where the land was declared "terra nullius" – a land without people and therefore without a pre-existing right of sovereign power.
However, the legal "story" of a pre-existing right provided the constitutional basis for another story: the right of the Crown through the transfer of sovereignty. And it’s that story that has supplied the basis for aboriginal peoples’ struggles for self-determination within the different common law jurisdictions in which they found themselves. When I say story, I am speaking of the complex of legal concepts that make up a given tradition. I’m talking about the nature of law as a tradition that employs certain tropes and characters: things like inalienable rights and sovereignty. Both Greyshade and Reading the Maps criticise my emphasis on the narrative nature of the sovereignty story. Greyshade rightly comments that:
Sovereignty is not a delegation of authority from history but a contemporary question of fact. The states of Israel or Jordan were created by a UN resolution but exercise their sovereignty today without any reference to the UN or anyone else.
Of course, this is correct. But I think both of critics have misinterpreted what I have been trying to get at. To begin with, both Israel and Jordan were created out of different story-telling traditions: there is no one-to-one relationship between international law as it developed in the post World War II environment and the internal law of different common law countries. More importantly, although sovereignty is indeed a question of fact, its legal self-description is based on a constellation of definitions and objects, many of which are necessarily fictive. You cannot enter a courtroom and argue a case without in some way employing and referring to these fictions. You can't argue a case without without entering a story. We all seem to know that laws and constitutions are based on great stories, even if practioners in the legal and juridical sphere don't. As legal theorist Peter Brooks writes:
If the narrativity of the law seems obvious to the outside observer, the law itself does not recognize narrative as a category of its thinking.Moving on, No Right Turn challenges my assertion that the Treaty of Waitangi is the legal basis for Crown sovereignty, arguing that:
the Treaty is obviously not the legal basis of the crown's sovereignty, for the simple reason that there can be no such basis. Sovereignty does not flow from law; it flows from popular consent.
There are two problems here as I see it. The first is that in my copy of The New Zealand Politics Source Book it says right at the beginning of Part 1 that:
The legitimacy of the political system as a whole in now generally considered to rest on a compact, the Treaty of Waitangi, signed in 1840 between representatives of the British Crown and many of the Maori tribes.
Secondly, it's not as though I don't agree with Idiot at No Right Turn about where the real basis of sovereignty ought to lie in a perfect world. I am no legalistic Tory willing to die on my sword for fictive constructions such as the sovereignty of the Crown or the surrender of sovereignty. Idiot's argument about the sovereignty of the people is consonant with his essential liberalism. I am, however, a marxist social-democrat. And for me, saying things like the people are sovereign comes close to identifying the state with "the people" - an amorphous concept and a dangerous one. In fact, I like the language of Crown and Right inasmuch as it makes explicit the fact that the people are not sovereign: in a society such as ours real power lies elsewhere.
What I am arguing is that if we read New Zealand's legal and constitutional history consistently, following its own internal logic, we arrive at a contradiction between the obligations set out in the Treaty of Waitangi and the legal basis of state power in New Zealand. It's a productive contradiction because it sets out in clear relief the fact that so-called "parliamentary sovereignty" is a fictional object that is no longer desirable. Such a "reading" exposes the fact that in the Treaty of Waitangi we have a partial constitutional document without a legal means to enforce it: the state, now synonymous with parliament is in breach of its obligations. But it cannot be called to account.
I think that as a result of the Treaty, parliament needs limits to its authority in the form of a separation of power. But because legal thinkers have theorised New Zealand as a unitary state, they have been unable to justify the establishment of a supreme court which might have the power to limit parliamentary authority. The problem is that to theorise in this way makes the Treaty of Waitangi invisible. There is, in my opinion, a case to be made that New Zealand is not a unitary state: rather, the obligations of the Treaty form a limit to the authority of the state in the same way that a constitution does.
The Treaty represents an authority that de-stablises the "unitary state." If this is the case, then two points follow: first, there must be a court capable of judging the interested nature of government's realtionship to its Treaty obligations, and second, the partial and limited nature of the Treaty of Waitangi invites all New Zealanders to embark on the work of completing this country's constitutional environment. The task opened by the Treaty of Waitangi is to build a real supreme court and a constitution for everyone.