Column: Common and customary law

We've been talking about common law - the traditional heart of our legal system as grafted from Britain in the mid-19th century.

It had grown there from misty beginnings as haphazard trial by battle or ordeal gave way to manor-based feudal courts and then more predictable justice of royal courts as decided by judge and jury. The foundation, however, was more rural custom than academic law.

Thus common law was planted and well suited in all British colonies, along with tempering principles of equity, and has developed here from 1840.

But these islands were not entirely lawless before Waitangi.

Who knows just how it was, but there must have been some rules within and between tribes.

In the recent case of Clarke v Takamore, the High Court Judge acknowledged Tuhoe tribal custom but Mr Takamore had chosen to dissociate himself from Tuhoe. When he died, the family came to Christchurch, took the body and buried him at their marae, against the wishes of his widow.

The Court of Appeal confirmed that the burial was unlawful, but for different reasons.

From an English case in 1608, they found that the resulting conflict between common law and the customary law of Tuhoe was unreasonable and uncertain - liable to lead to violence and "repugnant to the rule of law".

Nevertheless, New Zealand law "should as far as is reasonably possible" be consistent with the Treaty of Waitangi.

So what is the law about funeral and burial arrangements?

Upon death, all property of the person passes legally to the executors - including rights to the body - one hesitates to speak of ownership.

It is the business of the executors or trustees to make all such decisions. The court nevertheless went on to say that the executor should negotiate with whanau and hope to reach consensus; but still the executor, like a judge, has the power and duty to decide. If all do not agree, the common law prevails.

And we can ask again - what is common law and the rule of law? All law should be orderly and predictable, according to established principles.

The Treaty is fine and honourable as an historical commitment - and we need to hold it up in the changing world, but we can't stop change and we can't go back. Let's not get silly about politics.

John Tripe is a principal with the Wanganui legal firm of Jack Riddet Tripe