Listener 5 February, 1990.

Keywords: History of Ideas, Methodology & Philosophy; Maori; Political Economy & History;<

Across the bay from the great Waitangi Marae is the picturesque town of Russell. A hundred and fIfty years ago Kororareka, as it was then, housed “the scum of the Pacific”: ruffians, rogues, and ratbags from Europe, prone to drunkenness, violence and turmoil. If Thomas Hobbes had been at the .signing of the Treaty of Waitangi, he would have looked at the unrest across the water and given a knowing smile.

Hobbes (1588-1679) had lived through the turbulence of the English civil war. Dismayed at the civil unrest he wrote Leviathan, which argued that a sovereign was needed to govern in return for the security of civil society. Hobbes was not the first to suggest the notion of a “social contract” whereby individuals collectively agreed to have a ruler to ensure civil peace -that was probably a Greek – but he was one of the first great codifiers.

Others followed. John Locke (1632-1704), concerned with the Glorious Revolution of 1688, wrote Civil Government in which he argued that the ruler of a state is one party to a contract with those over whom he or she rules. If rulers break the contract by not serving the good end of society they may be deposed. Jean-Jacques Rousseau (171278), who had earlier written of the noble savage (some thought the classical Maori was an example), wrote Contrat Social, further refining the idea.

It is unlikely that those who devised the Treaty of Waitangi had the notion of a social contract uppermost in their minds.* But it is likely in the England they grew up in that ideas of such an arrangement were sufficiently widely known for the designers of the treaty to fall back on the concept, particularly given the unruliness across the bay.

What would be put in such a social contract-based treaty? A simple one would have just two articles. The first would give some institution (the crown) the powers, duties and obligation of government. The second would ensure that the maximum of personal (and property) rights were retained by the signatories. Locke and Rousseau insisted that only the necessary minimum of powers was transferred to the ruler.

The Treaty of Waitangi almost perfectly fits this description. Article one, the “kawanatanga” article, appoints the British crown to govern the country. Article two, the “rangatiratanga” article, has the government agreeing that the Maori signatories would retain their property and chieftainship rights, which could only voluntarily be alienated.

European theory assumed that the social contract is an unwritten document, unlike the tangible (albeit rat-eaten and water-soaked) treaty between the Maori and their government. However, there may be various documents pertinent to the intangible ones. For instance the English have Magna Carta, the 1689 Bill of Rights, and their common law.

It is this intangible, but supplemented, English social contract which made necessary the third article of the treaty: the “tikanga” provision says that the Maori signatories would have the same rights and duties as the people of England. So Maori have the written social contract of the Treaty of Waitangi, and the unwritten one from the British constitutional tradition.

But the tikanga article is reflexive: if Maori have the same fundamental rights as other New Zealanders, then other New Zealanders have the same rights as Maori. The third article means that any social contract in the treaty is for all New Zealanders and not just the Maori. Unlike their ancestors and foreign cousins, nonMaori New Zealanders also have a written social contract.

The crucial rights for the individual are in article two. This needs to be interpreted with care. The treaty says that the property rights the Maori had before its signing were retained after, and the government was not to alienate them without Maori consent. That is equally true for the Europeans, although few had property rights in New Zealand at that time. But the principle of sanctity of property rights is one that can be derived from the European unwritten social contract. The second article also says that Maori retained their chieftainship. Interpreting that to encompass Pakeha notions of personal dignity and of human rights, again the principle is integral in the unwritten social contract.

Thus when the government of New Zealand unjustly alienated Maori property rights without fair compensation, it set a precedent for doing the same to others’ property rights. When it abrogated the civil rights and dignity of the Maori, and violated the integrity of their culture, it prepared to do the same to any other minority – and every one of us is a minority.

By overriding the rights the social contract gave to one group in the community, the government threatened to override the totality of the social contract, and the rights of every group and tndividual. That is why it is so vital that we should honour the Treaty of Waitangi, and remedy the grievances which have arisen from the past dishonouring – in the words of John Donne. ..

“No man is an Island, entire of itself.”
“Any man’s death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; it tolls for thee.”

* We now know James Busby probably had a social contract in mind, and I am inclined to the view that Henry Williams had one too, albeit of from the religious rather than political tradition. Was there a Treaty of Waitangi? Was it a Social Contract?