Interpreting the agreement made at Waitangi as a social contract is a way to move forward on treaty issues.
(This column follows ‘Our Understandings Of Te Tiriti Has Evolved Organically’.)
Te Tiriti is in the form of a social contract of the sort that political theorists have discussed since the seventeenth century to explain how countries should be governed. Philosopher David Hume pointed out that no country had a tangible one on which it was founded. Sixty-four years after his death, New Zealand upended his objection.
Te Tiriti looks like a social contract. It has a prologue, three articles and an epilogue. The articles are at its core. In an early draft, the third article was actually in the prologue, with a ring around it and arrow pointing to a position as the third article.
The third article is the ‘rights’ clause. A good translation of the Māori text is ‘In return for the cession of the sovereignty to the Queen of England the people of New Zealand will be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.’
In standard political theory such an (inalienable) rights clause precedes the next two clauses, exactly where it was originally placed.
The first two clauses are constructed in the form of a contractual exchange. The first says that the signatories accept that the governance (kāwanatanga) of New Zealand will be the responsibility of the English sovereign and her successors, while the second says that, in return, the government will respect and protect the signatories’ rangatiratanga, including their properties and other treasures. This is exactly the way a social contract is constructed.
There is an argument as to whether the Tiriti is a covenant or whether it is about property rights. If it is a social contract, it encompasses both – and more.
‘Rangatiratanga’ may have had a more Iwi/tribal* meaning to some of the original signatories. But that notion seems to have subsequently evolved into everyone having the status of a rangatira – of having the sovereignty of the individual over her- or himself – which is the way a modern social contract would interpret it.
While Te Tiriti was between the English Crown and Rangatira Māori, today it must be taken to involve all of us, whether we have some Māori descent or none. That is the logic of the third article.
Some confused thinking equates the English Crown with the English people. They are quite distinct. Technically the English people were not involved with Te Tiriti (except some were advisers). Describing some New Zealanders as ‘tangata tiriti’ seems to be a misunderstanding of what historically went on.
The text refers to the recent arrivals as ‘Pakeha’. which is how I describe my ethnicity – honouring Te Tiriti. (I do not describe myself as ‘European’ because of its race overtones.)
Te Tiriti does not set up a partnership between the Crown and Māori (Iwi). That was not the interpretation of the Court of Appeal. (The Court said both parties must act in good faith akin to that of a partnership.) If Te Tiriti was a social contract, the Crown would be more like a trustee than a partner.
Hobson’s London instructions give no hint that he was to negotiate a social contract. He discussed the Colonial Office directions with Governor Gipps when he was in Sydney before sailing to Waitangi. Gipps tried to get some Māori visiting Sydney to sign a deal. (They turned it down.) The Gipps’ (unsigned) treaty is not in the form of a social contract suggesting it was not a consideration in the Gipps-Hobson discussions.
The likelihood is that the conceptual notion of a social contract came from James Busby (who mentioned social contract theory in one of his letters) and possibly Henry Williams (who would have certainly known about the theological equivalents – covenants). So there was at Waitangi local input from Busby and Williams which was more sensitive to Māori interests. Te Tiriti is not simply what the Colonial Office envisaged.
The origins of social contract theories go back to the covenants in the Bible. Here we start with seventeenth-century England, a time of great civil unrest and turmoil. Thomas Hobbes argued then that absent of any political order there would be ‘[n]o arts; no letters; no society; and which is worst of all, in continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.’ He posited the need for a central authority (a ‘Leviathan’).
But, he said, that ‘[t]he obligation of subjects to the sovereign is understood to last as long, and no longer, than the power lasteth by which he is able to protect them’. A few decades later John Locke made the point even more strongly that if the Leviathan failed to look after the interests of its subjects it could be replaced, as had just happened to James II
If a social contract is breached, the signatories have the right to withdraw the authority of the sovereign. This is not to say that they need chop off the king's head but it does raise the question of how to keep the sovereign authority on track. (The MMP referendum replaced the existing frontrunner ‘monarchy’.)
Evolving here is the notion of a social contract for which the population, concerned by civil turbulence, appoint a sovereign but on the condition that their interests are protected. Which is exactly what Te Tiriti did.
It would be anachronistic to argue that the Māori signatories knew the European political debate but, shortly after, Māori described the agreement as a ‘covenant’, which is a part of the theological origins of social contract theory. So it is not implausible that such notions may have underpinned at least some of the Māori signatories’ thinking; and certainly they have done so in the thinking of many of their descendants.
Te Tiriti being a social contract does not undermine most of the things we do today in its name.
– The treaty settlements are still remedies to the Crown’s breaches of the second article;
– The Māori language remains a taonga of the second article (as ruled by the courts) and the Crown is obliged to foster it;
– Under a liberal social contract, the Crown should practise subsidiarity and devolve as much autonomy as possible to individuals, and to the voluntary groupings which include Māori ones;
– The Crown should be concerned with social inequality including inequality of opportunity, not least to promote social cohesion (reduce turbulence), and should be concerned to reduce social deprivation, especially where it applies to identifiable social groups such as Māori.
While Te Tiriti as a social contract is a coherent interpretation of the facts, and seems likely to have been the interpretation of at least one person involved in the events of the day, that does not mean it is a social contract today. That is for us to decide. How can we?
I do not think there is any point in the government declaring Te Tiriti is a social contract – especially the bit about if it does badly, you may ‘behead’ it (although that is the import of the Electoral Act 1993). Rather it is about how each of us thinks about Te Tiriti, like the paradigm shift from ‘Te Treaty is a Fraud’ to ‘Honour Te Tiriti’.
Hopefully an increasing number of people will treat Te Tiriti as a social contract and describe it that way in their public dialogue. Not everyone will agree and there will be differences of interpretation – as there are among philosophers. (Many subsequent philosophers – including David Hume, Jean-Jacques Rousseau and John Rawls – have contributed to the theory.) But we could evolve our thinking towards a consensus which does not just say Te Tiriti is the foundation document of the nation, but treats it as such; which does not just honour Te Tiriti, but does so in a contemporary, historically consistent, practical and intelligible way.
* I capitalise iwi to indicate when I am referring to tribes rather than people.