Opinion: Parliament’s regulations review committee is investigating a complaint laid by Gary Judd KC, who has taken issue is with a rule introduced by the Council of Legal Education that makes a course in tikanga Māori compulsory for law students.
Under the Lawyers and Conveyancers Act 2006, the council has the power to make regulations necessary for courses of study “for the examination and practical legal training” of candidates for admission as barristers and solicitors. The tikanga rule was approved in a 2022 amendment and comes into effect on January 1 next year.
Judd’s approach is confrontational and controversial. “The tikanga regulations are symptomatic of a dangerous trend that has emerged within some sectors of New Zealand society where those with the power to do so seek to impose the beliefs and values of one section of society upon the community as a whole,” he says. “They do so in this instance by pretending that tikanga is law and therefore it is fitting to compel law students to learn about it.”
Put simply, his complaint is that tikanga has no place in the teaching of law because, according to him, it is not law. He says tikanga lacks some of the essential attributes of law and is more a collection of beliefs.
Judd’s approach to law is very much what was taught in legal philosophy in the 1960s when both he and I were at law school. Recorded law increases its certainty. This was not present with tikanga because precolonial Māori did not have a written language. According to Judd, customs, informal traditions and social rules could not be formalised as written rules.
Supporters of tikanga argue it was the first law of this country, but Judd argues it is not law just because its proponents say it is, and it has not been established by those supporters why tikanga is law. He is especially critical of the decision of the majority of the Supreme Court in the Peter Ellis case, which relied on a “Statement of Tikanga” prepared by tikanga experts.
This described tikanga, according to Judd, as beliefs, and a way of doing things, values, standards, principles or norms.
Judd’s approach has been met with outspoken opposition. One law school dean described him as “one of the old racist dinosaurs” who “can go die quietly in a corner”. The Law Association, which published Judd’s complaint in its weekly Law News, came in for criticism for publishing it in the first place.
The most eloquent rejoinder to Judd’s article came from Te Hunga Rōia Māori o Aotearoa – the Māori Law Society, which considers Judd’s views outdated and incorrect. It says his relegation of tikanga as a set of beliefs is redolent of the dismissive attitude of the courts to Māori custom in 1877 (when the Treaty of Waitangi was judged a “legal nullity”).
The society further argues Judd offers no analysis of the core principles of tikanga or how they worked as regulators of normative behaviour or resulted in legal outcomes. It refers particularly to the work of the Law Commission on the role of tikanga in the law after the decision of the Supreme Court, and to a line of cases where tikanga has been recognised as a source of law.
There can be no question that tikanga as a form of lore and custom governing behaviour reflects elements of law. There is no doubt that over the years it will become woven into the fabric of New Zealand law. This is not new. The English common law developed from the incorpor-ation of “immemorial custom”.
As a form of law and its gradual adoption, tikanga provides an interesting case study for the evolution of custom into mainstream substantive law. In that regard, it could well be taught as an element of jurisprudence or legal philosophy which, in my view, should be compulsory.
