"Determining what qualifies as a ‘hate crime’ is entirely subjective and threatens to simply create a bigger stick"

"[D]etermining what qualifies as a ‘hate crime’ is entirely subjective ... and threaten[s] to simply create a bigger stick with which to beat unpopular views.
    “Criminal acts motivated by hate are already illegal and should be prosecuted to the fullest extent of the law. However, categorising an existing offence as a ‘hate crime’ means punishing not just the action, but the perceived thoughts or motivations behind it.
    “New Zealand law already permits judges to consider motivation as an aggravating factor under the Sentencing Act. This is the right approach—judges daily use their subjective discretion in determining appropriate punishments.
    “Throwing red paint on an MP's office in response to the conflict in Gaza? Defacing an installation of the English version of the Treaty in Te Papa? Vandalising a rainbow pedestrian street crossing? All of these are [already] criminal offences—all should be addressed appropriately under the law. But who decides which is a ‘hate crime’?
    “No jurisdiction in the world has created an objective standard for ‘hate.’ Trying to legislate against something so subjective will lead to confusion and inconsistency in enforcement. There is far too much room for ideological interpretation when deciding if a crime constitutes as ‘hateful’ and to what extent. ...
    "Internationally, ‘hate crime’ laws have proven to be easily [exploited]. The rule of law is too important for our democracy to get caught up in subjective and ideological debates that undermine clear legal standards.”

~ Free Speech Union's submission on the Law Commission’s foolish consultation on hate speech law [More here]

Rule of Law v Rule of Men (Plague Edition)

On Saturday afternoon I watched a mob of what seemed 10,000 closely-assembled shouters, mouth-breathers and sovereign-citizen conspiracists crawl past my office window. They were chanting "freedom" -- a subject about which I do profess to know a little -- yet the only freedom about which there appeared any articulated concern seemed to be the freedom to ignore reality.

It's ironic. For years I've struggled to interest folk in freedom. I would have given my left ball to have a parade of 10,000 people marching to demand freedom. But I would really have wanted a reasonable percentage of that number to know what they were talking about. 

I was asked the other day why so many apparent libertarians themselves don't seem to know what they're talking about when it comes to dealing with a pandemic. Or freedom. I suggested it's the difference between being genuinely pro-freedom (recognising that a context-sensitive application of rights will require govt involvement, and may require quarantines/vaccines/masks etc.) and simply being anti-govt (throwing your toys out of the cot and looking for guidance from the likes of Brian Tamaki, Mother Teresa, and Princess Diana*). It's a divide that since its inception has continue to plague (ahem) libertarianism -- the division between anarchy (no govt, on its way to mob rule) and the rule of law.

Mind you, if laws are imposed, such as laws about things like quarantines/vaccines/masks etc, the proper rule of law requires they be imposed objectively. Shops, offices, factories, schools, hospitals, employers, employees should be able to see understandable, predictable, objectively-derived criteria by which they may open, and how. Governments everywhere are trying, and flailing (and failing), but this is the standard we should stick them with: that all law, when applied -- even in times of plague -- must be objective. Which means that it must be objectively defined, interpreted, applied, and enforced. This is something all freedom-lovers should be focussed on, at all times. Not just now.

What does that mean, you ask -- too focus on new law being objective? Well, you're in luck: here's a short summary from University of Texas philosopher Tara Smith (courtesy of Stephen Hicks , who's running a course on this) of what it means, and how it's different to other views.

Any questions?

* I swear, I am not making this up.

The rule of (objective) law

"A law is a rule of social conduct enforced by the government. In distinction to all other social rules and practices, laws are backed up by the government's legal monopoly on the use of physical force. ... In order to define a standard for evaluating law, one must refer to the purpose of government....
    " 'Since the protection of individual rights is the only proper purpose of a government, it is the only proper subject of legislation: all laws must be based on individual rights and aimed at their protection.' ... not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights....
    "In every regard, the law must be adapted to its essential goal: predictability. '[M]en must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.' The ideal is to make the laws of man like the laws of nature: firm, stable impersonal absolutes.
    "Like the laws of nature, proper laws are contextual ... an objective law does not declare, for instance, Thou shalt not kill---period,' a notion which would equate murder and self-defence....
    "[I]t must also have the clarity and precision of a properly drafted contract. A contract that states, 'In return for paying me $100, I will do something nice for you someday,' is no contract. Likewise, a law that states, 'Obey community standards regarding obscenity,' is no law, but a grant of arbitrary power....
    "Objective law is men's protection against power-lust. Objective law does not require submitting to anyone's will; it exists to prevent others from substituting their will, their plans, their judgment for one's own....
    "Objectivity is needed not only for the law itself, but also in regard to every governmental activity, from the conduct of the police to election procedures. Legal objectivity, in the widest sense, includes objective methods of enacting law (the legislative process), objective methods of interpreting, constitutionally validating, and applying the law (the judicial process), and objective methods of enforcing the law (the executive process) ...
    "[L]aw has to be objectively defined, interpreted, applied, and enforced: 'A government is the means of placing the retaliatory use of physical force under objective control ---i.e., under objectively defined laws. . . . If a society is to be free, its government has to be controlled'."

          ~ Harry Binswanger, from his article 'What is Objective Law'

.

RMA reform? Mush, without any details to give it form

That table above was released last night as part of a 65-page report accompanying Nick Smith’s speech detailing outlining his plans to gut abolish reform tinker with the Resource Management Act, the RMA.

It shows what the report writers consider to be the range of costs that hit house and apartment builders under the RMA. (Not shown, though the report’s authors tried to model them, were the costs of home and apartment builders simply giving up in the face of the overwhelming uncertainties associated with planning anything under the RMA.)

The costs are high.

On face value its suggests the RMA adds almost $200,000 to the cost of an apartment, and around $150,000 to the cost of a stand-alone house. Costs that, with all of the uncertainty involved, every would-be home or apartment builder has to factor in at the very outset of their project. Extra and unnecessary costs that kill would-be projects necessary to help reduce end-sale prices down. Costs that kill the deal in any case for most would-be first-home buyers.

Even if council’s district plans allow you to build (within the plans’ very subjective limits) a speculative house or apartment on your own land,  these added costs to every development tip the balance enormously against that project being profitable – just one reason so few developments are started compared to what the market wants – just one reason those projects that are started are usually at the upper end of the market, the better to help the project recover these costs – just another reason that the Housing Accords have failed to deliver affordable houses even though they have “released” land-owners’ land for that purpose.

A commenter last night on Nick Smith’s 10-point headline to change the RMA suggested all would be solved if Smith’s point 5, i.e., “giving greater weight to property rights,” were made the only point. He has a point. Long forgotten by virtually all other commentators is what it actually means to do something as of right. To build as of right. To plan a project as of right.  To carry out a project bearing your own costs and no others as of right.  The certainty (and speed) that comes with making and carrying out your own decisions as of right.

Long forgotten too by most commentators who’ve already leapt into print to talk about “balancing” environment and development is that properly protected property rights themselves provide the greatest protection for both the natural environment and for  the human environment – as over seven-hundred years of common law would make clear to any commentator who bothered studying the history.

And it really wouldn’t be so hard to hard to bring that back.

Is that anything like what Nick Smith is suggesting? Is that any part of his “reform agenda”?  Is objective law – by which we mean law that is clear, that protects rights, and that makes answers to all legal issues self-evident in advance – any part of his thinking?

Well, now that we have all the detail we're going to get about his “reform agenda,” the only detail that is clear is that there is not enough detail to know.  But I doubt it.

Because as another commenter noted last night, the theme of Smith’s 10-point agenda is less about recognising rights than it is about centralising control,*  making it easier for councils to change their plans; a suite of “standard planning templates” which council planners will have to follow;  a “consolidation” of rules and plans across all councils; a “strengthening” of powers for national standards and national regulations.

This makes things no easier for Joe Builder. It does offer more work for John Bureaucrat.

Waitangi Day: Something to celebrate

“Today, racism is regarded as a crime if practiced by a majority—but
as an inalienable right if practiced by a minority… Like every other
form of collectivism, racism is a quest for the unearned.”
- Ayn Rand, “Racism”

Oh Galt, it’s Waitangi Week again – and already the hikois of protest and the graspers of the unearned are infesting the place from top to bottom.

The birth of the best little country in the world is being celebrated – not with the deserved pride of a great achievement – but, once again, with the full cast of cant and lies and humbug. A Waitangi Day of one race, once again – with a Prime Minister, once again, being led up the garden path by the same embittered old crone who shows up for the purpose every year.

While most of the professional grievance industry can now be found inside the tent pissing out, the regular eruptions of Mt Hone are early warning signs that stuff (beaches, land, “compensation”) isn’t being thrown into the laps of tribal leaders as quickly as the grievance industry would like.

And even if they were given all they wanted, like Oliver Twist they’ll still be back asking for more, sir.  Such is the culture to which modern Treatyism has delivered us: one of separatism and race-based welfare—one in which government is the referee in disputes between free individuals, but instead the great, all-encompassing deliverer of goodness. And the Browntable one-percenters to whom the goodness is delivered (in the form of cash and goods and large tracts of the North and South Island) are sparing indeed when handing on the cash and goods and large tracts of land  to the 99-percent whom they claim to represent.

Which brings us back to the reason for this particularly fractious season. And we might ask ourselves, was it something in that simple document drawn up by Governor Hobson that has caused this annual and ongoing farce? Or something that’s been made up since?

Naturally, it’s the latter.

What the Treaty contained was just three simple clauses and a preamble written in haste by a moderately-educated British-Irish sea captain to bring British law to these islands. That it  has become one-hundred-and-seventy years later a charter for separatism and a regular income for a ‘Browntable’ aristocracy is a measure by which the meaning of those clauses has been distorted, and the ambit of the agreement stretched. 

What the Treaty actually promised was the introduction of good law and of equal rights before the law – in other words, good colour-blind law. In its new incarnation as a “living document,” however, it has become a charter for more nationalisation of land, of seabed or of foreshore—for demands from moochers for the unearned—for eternal grievance and the rise of ohanga-to-poka welfare and brown feudalism.

But what was promised in that short document was, very simply, the introduction of British law to these islands—which at the time meant a legal system in which what we own is protected, in which real injustices could be proven swiftly and without great expense, and where justice can be done and be seen to be done.  That was what the Treaty actually made possible.

The disappointment is that the promise has not always been the reality.

Perhaps the greatest disappointment for the future, however, is to reflect that for all the time spent on Te Tiriti in New Zealand school rooms, there's so little understanding of what it means, what it actually says, and of the context in which it was signed.  Teaching real history is no longer fashionable.  Teaching myths is. Myths like the so-called “Treaty Principles,” based not on what was in the actual Treaty, but on what today’s academics would have included if they could. . .

Partnership?

Despite the fiction that has been put about in recent years to give Browntable leaders access to the trough, the Treaty did not promise 'partnership' of the form now espoused -- neither word nor concept appeared in the document. It was not a Treaty offering permanent welfare to moochers, nor a tax-paid gravy train for looters.

In three short articles it simply offered the introduction of British law, and the rights and protections that were then protected by British law.  That was it.

Biculturalism?

The Treaty which was drawn up and signed talked neither about race nor culture.  Like British law itself at the time it was colour blind.  What it promised was not the politics of race but the same protection for everyone, regardless of race, creed or skin colour.

Would that today's law be so blind.

* * * * *

AT THE TIME IT WAS SIGNED, the context of British law really meant something.  By the middle of the nineteenth century, British law -- which included British common law -- was the best the world had yet seen.  It was what had made Britain rich, and what still makes the places where British law was introduced or emulated some of the most prosperous places in the world in which to live today.

From the perspective of one-hundred-and-seventy years later, however, when individual rights and property rights are taken for granted even as they're slowly expunged, it's easy to take the framework and protection of British law for granted.  Looked at in the context of the history of human affairs however it was a tremendous achievement: the first time in which individual rights and property rights were recognised in law, and protected in a relatively simple and accessible framework.  Perhaps history's first truly objective legal system.

The introduction of British law to the residents of these Shaky Isles at the bottom of the South Pacific, which at the time were riven with inter-tribal warfare, was a boon -- and those who so eagerly signed up knew that.  The immediate perspective of all involved might have been short-term – of the British, to forestall a feared annexation by France; of the warring chiefs, to gain a foothold for trade and to secure territorial gains made in the most recent inter-tribal wars -- but there's no doubt that all had at least an inkling that life under British law promised greater peace in these isles than had previously enjoyed, and a much greater chance at prosperity.

"He iwi tahi tatou"

'He iwi tahi tatou.' We are now one people. So said Governor Hobson to Maori chieftains as they signed the Treaty that has become the source of so much division. But are we really 'one people'? Not really. No more than our ancestors were then. But nor are we two, three or fifty-four peoples -- do you have a people? -- and nor does it actually matter, since what Captain Hobson brought to New Zealand with the Treaty along with British law (which then meant something) was Western Culture—which, uniquely, makes it possible to see one another not as 'peoples,' not as part of a tribe or a race, but each of us as sovereign individuals in our own right.

That was A Good Thing. A Very Good Thing.

But unfortunately, despite the coming of western culture and the introduction (or at least the aspiration) of colour-blind law, we still don't see each other as sovereign individuals so much, do we?   The tribalism is still there (albeit the warring parti4s now hurl lawyers at each other instead of spears) and the myth-making about 'partnership' and 'biculturalism' is just one way to avoid seeing it.

A charter for objective law

To be fair, the Treaty itself isn't much to see. What Hobson brought was not the founding document for a country but a hastily written document intended to forestall French attempts at dominion (and the Frank imposition of croissants and string bikinis), and which brought to New Zealand for the first time the concept of individualism, and the protection of property rights and of an objective rule of law.

    The Treaty of Waitangi should be commemorated [says Lindsay Perigo] because it bestowed upon Maori the rights of British subjects, thus introducing the notion of individual freedom within the rule of law to gangs of tribal savages who hitherto had been cannibalising and enslaving each other. But it has become a de factoconstitution in the absence of a formal one, a brief for which it is woefully inadequate,” argues Perigo.
    The five-paragraph, three-point Treaty is silent on many matters with which a constitution must deal. Moreover, there are ongoing arguments about what it really meant and which version is authentic. The best thing to do is scrap it and start over.

The five-paragraph, three-point Treaty was short, spare and to the point. It was silent on many matters with which a constitution must deal because what it relied upon was the context of British law as it then existed.   The Treaty's three short clauses promised little in themselves -- as everyone understood, the intent was to point to the wider context of British common law and say 'We're having that here.'

But that understanding is now clouded with invective, and the context of British law and common law as it once was is no longer with us. British law is not what it was, and there's a meal ticket now in fomenting misunderstanding of what it once promised.

The Treaty signed one-hundred-and-seventy years ago today was not intended as the charter for separatism and grievance and the welfare gravy train that it has become - to repeat, it was intended no more and no less than to bring the protection of British law and the rights and privileges of British citizens to the residents of these islands --residents of all colours. That was the context that three simple clauses were intended to enunciate.

And one-hundred-and-seventy years ago, the rights and privileges of British citizens actually meant something -- this was not a promise to protect the prevailing culture of tribalism (which had dominated pre-European New Zealand history and underpinned generations of inter-tribal conflict, and which the modern myth of 'partnership' still underpins), but a promise to protect individuals from each other; a promise to see Maoris not as part of a tribe, but as individuals in their own right; a promise to protect what individuals own and what they produce by their own efforts. That the promise is sometimes seen more in the breach than in the observance is no reason to spurn the attempt.

The Treaty helped to make New Zealand a better place for everyone. Especially those native New Zealanders whom it liberated.

Liberation, and protection

Life in New Zealand before the advent of the rule of law recognised neither right, nor privilege, nor even the concept of ownership. It was not the paradise of Rousseau's noble savage; force was the recognised rule du jour and the source of much barbarity (see for example 'Property Rights: A Blessing for Maori New Zealand').  Indeed just a few short years before the Treaty was signed, savage inter-tribal warfare reigned, and much of New Zealand was found to be unpopulated following the fleeing of tribes before the muskets and savagery and cannibalism of other tribes.

Property in this war of all against all was not truly owned; instead, it was just something that was grabbed and held by one tribe, until it was later grabbed and held by another. To be blunt, life was brutish and it was short, just as it was in pre-Industrial Revolution Europe, and - let's face it -- it was largely due to the local culture that favoured conquest over peace and prosperity. As Thomas Sowell reminds us:

Cultures are not museum pieces. They are the working machinery of everyday life. Unlike objects of aesthetic contemplation, working machinery is judged by how well it works, compared to the alternatives.

Pre-European local culture was not working well for those within that culture. Let's be really blunt (and here I paraphrase from this article):

In the many years before the Treaty was signed, the scattered tribes occupying New Zealand lived in abject poverty, ignorance, and superstition -- not due to any racial inferiority, but because that is how all mankind starts out (Europeans included). The transfer of Western civilisation to these islands was one of the great cultural gifts in recorded history, affording Maori almost effortless access to centuries of European accomplishments in philosophy, science, technology, and government. As a result, today's Maori enjoy a capacity for generating health, wealth, and happiness that their Stone Age ancestors could never have conceived.

Harsh, but true. And note those words before you hyperventilate: "not due to any racial inferiority, but because that is how all mankind starts out (Europeans included)."   Some one-hundred and fifty years before, the same boon was offered to the savage, dirt-poor Scottish tribesmen who were living then much as pre-Waitangi Maori were.  Within one-hundred years following the embrace of Western civilisation, Scotland was transformed and had became one of the centres of the Enlightenment.  Such was the cultural gift being offered.

The boon of Western Civilisation was being offered here in New Zealand not after conquest but for just a mess of pottage, and in return for the right of Westerners to settle here too. As Sir Apirana Ngata stated, "if you think these things are wrong, then blame your ancestors when they gave away their rights when they were strong" - giving the clue that 'right' to Ngata's ancestors, equated to 'strong' more than it did to 'right.'

Who 'owned' New Zealand?

It's said that Maori owned New Zealand before the Treaty was signed, and that while the 'shadow' of sovereignty was passed on, the substance remained.  This is nonsense.  Pre-European Maori never "owned" New Zealand in any sense, let alone in any meaningful sense of exercising either ownership or sovereignty over all of it.

First of all, they had no concept at all of ownership by right; 'ownership' was not by right but  by force; it represented taonga that was taken by force and held by force -- just as long as they were able to be held (see again, for example' Property Rights: A Blessing for Maori New Zealand').  Witness for example the savage conflict over the prosperous lands of Tamaki Makaurau, over which generations of Kawerau, Nga Puhi, Ngati Whatua and others fought.  There was no recognition at any time that these lands were owned by a tribe by right -- they were only held as long as a tribe's might made holding them possible, and as long as the fighting necessary to retain them brought a greater benefit than it did to relinquish them (and by the early 1800s, with so much fighting to be done to hold them, all tribes gave up and left the land to bracken instead).

Second, even if the tribesmen and women had begun to develop the rudiments of the concept of ownership by right (the concept of ownership by right being relatively new even to 1840 Europeans) they didn't own all of the country -- they only 'owned' what they owned.  That is to say, what Maori possessed were the specific lands and fisheries and foreshore and seabed they occupied and farmed and fished and used.  This was never all of New Zealand, nor even most of New Zealand. The rest of it lay unowned, and unclaimed.  They only ‘owned’ what they owned

Third, prior to the arrival of Europeans, Maori did not even see themselves as 'one people'; the word 'Maori' simply meant 'normal,' as opposed to the somewhat abnormal outsiders who had now appeared with their crosses and muskets and strange written incantations. The tangata whenua saw themselves not as a homogeneous whole, but as members of various tribes.  This was not a nation, nor even a collection of warring tribes.  Apart from the Confederacy of United Tribes -- an ad hoc group who clubbed together in 1835 in a bid to reject expected overtures from the French -- there was no single sovereignty over pre-European New Zealand, no sovereign entity to cede sovereignty, and no way a whole country could be ceded by those who had never yet even laid claim to it in its entirety.

Our 'Founding Document'?

So the British came, and saw, and hung about a bit. The truth is that some of the best places in the world in which to live are those where the British once came, and saw, and then buggered off -- leaving behind them their (once) magnificent legal system, and the rudiments of Western Culture. See for example, the USA, Canada, Australia, New Zealand, and of course (as noted in obituaries of former governor John Cowperthwaite) Hong Kong. We lucked out.

What the Treaty did do, for which we can all be thankful, was to bring British law to NZ at a time when British law was actually intended to protect the rights of British citizens, and it promised to extend that protection to all who lived here. For many and often differing reasons, that was what the chieftains signed up to.  To become British citizens, with all the rights and privileges thereof.

But as we’ve been at pains to day already, the Treaty itself was not a founding document. No, it wasn't. On its own, with just three simple articles and a brief introduction, there was just not enough there to make it a document that founds a nation. As a document it simply pointed to the superstructure of British law as it then was and said, 'let's have that down here on these islands in the South Pacific.'

The treaty's greatest promise was really in its bringing to these islands those rights and privileges that British citizens enjoyed by virtue of their then superb legal system; the protection of Pax Britannia when those rights and that protection meant something, and when British power saw protection of British rights as its sworn duty. The result of this blessing of relatively secure individual rights was the palpable blessings of relative peace, of increasing security, and of expanding prosperity.

Sadly, British jurisprudence no longer does see its duty that way, which means the legal context in which the Treaty was signed has changed enormously, and the blessings themselves are sometimes difficult to see. Law, both in Britain and here in NZ, now places welfarism and need above individualism and rights. That's the changing context that has given steam and power to the treaty-based gravy train, and allowed the Treaty and those who consume the Treaty's gravy to say it says something other than what is written in it.

The truly sad thing is that the Treaty relied on a context that no longer exists -- and the only way to restore that context, in my view, is with a new constitution that makes the original context explicit.  To restore the original legal context, and to improve upon it with a legal context that protects and reinforces an Objective rule of law -- as British law itself once did -- one that clarifies what in the Treaty was only vague or was barely put. And in doing so, of course, such a constitution would make the Treaty obsolete.

Thank goodness.

The Dream

Waitangi Day comes just two weeks after Martin Luther King Day. The contrast is spectacular. Perhaps we should remind ourselves of King's dream for the future of his own children:

I have a dream that my four children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character...Perhaps we will one day celebrate that same dream down here -- not as a dream, but as reality.  Celebrating our national day not as a charter for grievance that continues to poison discussion, but instead with real joy.  Shaking off the gravy train of grievance, and celebrating that the colour of a man's skin is of no importance compared to the content of his character.

Perhaps one day we will actually celebrate the birth of this great little country, instead of seeing its birthday as an annual source of conflict.

Wouldn't that be something to really celebrate?

* * * * *

Linked Articles: Unsure on foreshore: A Brash dismissal of Maori rights? - Not PC
Do you have a people? - Not PC
Property Rights: A Gift to Maori New Zealand - Peter Cresswell
Education & the Racist Road to Barbarism - George Reisman
What is Objective Law? - Harry Binswanger
No Apology to Indians - Thomas Bowden
Superseding the Treaty with something objective called "good law" - Not PC
All hail the Industrial Revolution - Not PC
Cue Card Libertarianism: Individualism - Not PC
Cue Card Libertarianism: Rights - Not PC
Cue Card Libertarianism: Need - Not PC
Cue Card Libertarianism: Welfarism - Not PC
Cue Card Libertarianism: Ethnicity - Not PC
Cue Card Libertarianism: Government - Not PC
Cue Card Libertarianism:Constitution - Not PC
Cue Card Libertarianism: Property - Not PC
A Constitution for New Freeland - The Free Radical

Why not celebrate One-Law-For-All Day instead? [updated]

IT’S WAITANGI WEEKEND AGAIN. The time when, by long tradition,  blowhards and bludgers gather in the Bay of Islands to pontificate about this country’s history, and use what’s called its “founding document” as a club to beat each other around the head.

A day that should be something to celebrate is instead a national embarrassment. And no wonder. The traditional celebrations often involve the widespread dissemination of pictures of the Prime Minister variously crying or holding Titewahai Harawira’s hand, or ducking as wet T-shirts and clumps of earth are flung at them.  [UPDATE: And it’s started again already this year.]

In recent years, the sport of watching Hone avoid his erstwhile colleagues, and stories of  journos bleating about having to pay to gain entry to the Te Tii Marae have both been added to the “celebrations,” all of which just conceal deeper rumblings underneath.

With the Maori Party is still in harness (almost) the usual arguments are (almost) still in quietus this year, but that doesn’t mean they’ve gone away. While most of the professional grievance industry can now be found inside the tent pissing out instead of outside the tent pissing in--as they used to—the eruption of Mt Harawira earlier this year is an early warning sign that stuff (beaches, land, “compensation”) isn’t being thrown into the laps of tribal leaders as quickly as the grievance industry would like.

And even if they were given all they wanted, like Oliver Twist they’ll still be back asking for more, sir.  Such is the culture to which modern Treatyism has delivered us: one of separatism and race-based welfare—one in which government is the referee in disputes between free individuals, but instead the great, all-encompassing deliverer of goodness. And the Browntable to whom the goodness is delivered (in the form of cash and goods and large tracts of the North and South Island) are sparing indeed when handing on the cash and goods and large tracts to those whom they claim to represent.

Which brings us back to the reason for this particularly fractious season. And we might ask ourselves, was it something in that simple document drawn up by Governor Hobson that has caused this annual and ongoing farce? Or something that’s been made up since?

It’s the latter, of course.

What the Treaty contained was just three simple clauses and a preamble written in haste by a moderately-educated British-Irish sea captain to bring British law to these islands. That it  has become one-hundred-and-seventy years later a charter for separatism and a regular income for a ‘Browntable’ aristocracy is a measure by which the meaning of those clauses has been distorted, and the ambit of the agreement stretched.  

What the Treaty actually promised was the introduction of good law and of equal rights before the law – in other words, good colour-blind law. In its new incarnation as a “living document,” however, it has become a charter for more nationalisation of land, of seabed or of foreshore—for demands from moochers for the unearned—for eternal grievance and the rise of ohanga-to-poka welfare and brown feudalism. 

But what was promised in that short document was, very simply, the introduction of British law to these islands—which at the time meant a legal system in which what we own is protected, in which real injustices could be proven swiftly and without great expense, and where justice can be done and be seen to be done.  That was what the Treaty actually made possible.

The disappointment is that the promise has not always been the reality.

Perhaps the greatest disappointment for the future, however, is to reflect that for all the time spent on Te Tiriti in New Zealand school rooms, there's so little understanding of what it means, and of the context in which it was signed.  Teaching real history is no longer fashionable.  Teaching myths is. Myths like . . .

Partnership?

Despite the fiction that has been put about in recent years to give Browntable leaders access to the trough, the Treaty did not promise 'partnership' of the form now espoused -- neither word nor concept appeared in the document. It was not a Treaty offering permanent welfare to moochers, nor a tax-paid gravy train for looters.

In three short articles it simply offered the introduction of British law, and the rights and protections that were then protected by British law.  That was it. 

Biculturalism? 

The Treaty which was drawn up and signed talked neither about race nor culture.  Like British law itself at the time it was colour blind.  What it promised was not the politics of race but the same protection for everyone, regardless of race, creed or skin colour.

Would that today's law be so blind.

* * * * *

AT THE TIME IT WAS SIGNED, the context of British law really meant something.  By the middle of the nineteenth century, British law -- which included British common law -- was the best the world had yet seen.  It was what had made Britain rich, and what still makes the places where British law was introduced or emulated some of the most prosperous places in the world in which to live today.

From the perspective of one-hundred-and-seventy years later, however, when individual rights and property rights are taken for granted even as they're slowly expunged, it's easy to take the framework and protection of British law for granted.  Looked at in the context of the history of human affairs however it was a tremendous achievement: the first time in which individual rights and property rights were recognised in law, and protected in a relatively simple and accessible framework.  Perhaps history's first truly objective legal system. 

The introduction of British law to the residents of these Shaky Isles at the bottom of the South Pacific, which at the time were riven with inter-tribal warfare, was a boon -- and those who so eagerly signed up knew that.  The immediate perspective of all involved might have been short-term – of the British, to forestall a feared annexation by France; of the warring chiefs, to gain a foothold for trade and to secure territorial gains made in the most recent inter-tribal wars -- but there's no doubt that all had at least an inkling that life under British law promised greater peace in these isles than had previously enjoyed, and a much greater chance at prosperity.

"He iwi tahi tatou"

'He iwi tahi tatou.' We are now one people. So said Governor Hobson to Maori chieftains as they signed the Treaty that has become the source of so much division. But are we really 'one people'? Not really. No more than our ancestors were then. But nor are we two, three or fifty-four peoples -- do you have a people? -- and nor does it actually matter, since what Captain Hobson brought to New Zealand with the Treaty along with British law (which then meant something) was Western Culture—which, uniquely, makes it possible to see one another not as 'peoples,' not as part of a tribe or a race, but each of us as sovereign individuals in our own right.

That was A Good Thing. A Very Good Thing.

But unfortunately, despite the coming of western culture and the introduction (or at least the aspiration) of colour-blind law, we still don't see each other as sovereign individuals so much, do we?   The tribalism is still there (albeit the warring parti4s now hurl lawyers at each other instead of spears) and the myth-making about 'partnership' and 'biculturalism' is just one way to avoid seeing it.

A charter for objective law

To be fair, the Treaty itself isn't much to see. What Hobson brought was not the founding document for a country but a hastily written document intended to forestall French attempts at dominion (and the Frank imposition of croissants and string bikinis), and which brought to New Zealand for the first time the concept of individualism, and the protection of property rights and of an objective rule of law.

    “The Treaty of Waitangi should be commemorated [says Lindsay Perigo] because it bestowed upon Maori the rights of British subjects, thus introducing the notion of individual freedom within the rule of law to gangs of tribal savages who hitherto had been cannibalising and enslaving each other. But it has become a de facto constitution in the absence of a formal one, a brief for which it is woefully inadequate,” argues Perigo.
    “The five-paragraph, three-point Treaty is silent on many matters with which a constitution must deal. Moreover, there are ongoing arguments about what it really meant and which version is authentic. The best thing to do is scrap it and start over.”

The five-paragraph, three-point Treaty was short, spare and to the point. It was silent on many matters with which a constitution must deal because what it relied upon was the context of British law as it then existed.   The Treaty's three short clauses promised little in themselves -- as everyone understood, the intent was to point to the wider context of British common law and say 'We're having that here.' 

But that understanding is now clouded with invective, and the context of British law and common law as it once was is no longer with us. British law is not what it was, and there's a meal ticket now in fomenting misunderstanding of what it once promised.

The Treaty signed one-hundred-and-seventy years ago today was not intended as the charter for separatism and grievance and the welfare gravy train that it has become - to repeat, it was intended no more and no less than to bring the protection of British law and the rights and privileges of British citizens to the residents of these islands --residents of all colours. That was the context that three simple clauses were intended to enunciate.

And one-hundred-and-seventy years ago, the rights and privileges of British citizens actually meant something -- this was not a promise to protect the prevailing culture of tribalism (which had dominated pre-European New Zealand history and underpinned generations of inter-tribal conflict, and which the modern myth of 'partnership' still underpins), but a promise to protect individuals from each other; a promise to see Maoris not as part of a tribe, but as individuals in their own right; a promise to protect what individuals own and what they produce by their own efforts. That the promise is sometimes seen more in the breach than in the observance is no reason to spurn the attempt.

The Treaty helped to make New Zealand a better place for everyone. Especially those native New Zealanders whom it liberated.

Liberation, and protection

Life in New Zealand before the advent of the rule of law recognised neither right, nor privilege, nor even the concept of ownership. It was not the paradise of Rousseau's noble savage; force was the recognised rule du jour and the source of much barbarity (see for example 'Property Rights: A Blessing for Maori New Zealand').  Indeed just a few short years before the Treaty was signed, savage inter-tribal warfare reigned, and much of New Zealand was found to be unpopulated following the fleeing of tribes before the muskets and savagery and cannibalism of other tribes.

Property in this war of all against all was not truly owned; instead, it was just something that was grabbed and held by one tribe, until it was later grabbed and held by another. To be blunt, life was brutish and it was short, just as it was in pre-Industrial Revolution Europe, and - let's face it -- it was largely due to the local culture that favoured conquest over peace and prosperity. As Thomas Sowell reminds us:

    "Cultures are not museum pieces. They are the working machinery of everyday life. Unlike objects of aesthetic contemplation, working machinery is judged by how well it works, compared to the alternatives."

Pre-European local culture was not working well for those within that culture. Let's be really blunt (and here I paraphrase from this article):

    “In the many years before the Treaty was signed, the scattered tribes occupying New Zealand lived in abject poverty, ignorance, and superstition -- not due to any racial inferiority, but because that is how all mankind starts out (Europeans included). The transfer of Western civilisation to these islands was one of the great cultural gifts in recorded history, affording Maori almost effortless access to centuries of European accomplishments in philosophy, science, technology, and government. As a result, today's Maori enjoy a capacity for generating health, wealth, and happiness that their Stone Age ancestors could never have conceived.”

Harsh, but true. And note those words before you hyperventilate: "not due to any racial inferiority, but because that is how all mankind starts out (Europeans included)."   Some one-hundred and fifty years before, the same boon was offered to the savage, dirt-poor Scottish tribesmen who were living then much as pre-Waitangi Maori were.  Within one-hundred years following the embrace of Western civilisation, Scotland was transformed and had became one of the centres of the Enlightenment.  Such was the cultural gift being offered.

The boon of Western Civilisation was being offered here in New Zealand not after conquest but for just a mess of pottage, and in return for the right of Westerners to settle here too. As Sir Apirana Ngata stated, "if you think these things are wrong, then blame your ancestors when they gave away their rights when they were strong" - giving the clue that 'right' to Ngata's ancestors, equated to 'strong' more than it did to 'right.'

Who 'owned' New Zealand?

It's said that Maori owned New Zealand before the Treaty was signed, and that while the 'shadow' of sovereignty was passed on, the substance remained.  This is nonsense.  Pre-European Maori never "owned" New Zealand in any sense, let alone in any meaningful sense of exercising either ownership or sovereignty over all of it. 

First of all, they had no concept at all of ownership by right; 'ownership' was not by right but  by force; it represented taonga that was taken by force and held by force -- just as long as they were able to be held (see again, for example' Property Rights: A Blessing for Maori New Zealand').  Witness for example the savage conflict over the prosperous lands of Tamaki Makaurau, over which generations of Kawerau, Nga Puhi, Ngati Whatua and others fought.  There was no recognition at any time that these lands were owned by a tribe by right -- they were only held as long as a tribe's might made holding them possible, and as long as the fighting necessary to retain them brought a greater benefit than it did to relinquish them (and by the early 1800s, with so much fighting to be done to hold them, all tribes gave up and left the land to bracken instead).

Second, even if the tribesmen and women had begun to develop the rudiments of the concept of ownership by right (the concept of ownership by right being relatively new even to 1840 Europeans) they didn't own all of the country -- they only 'owned' what they owned.  That is to say, what Maori possessed were the specific lands and fisheries and foreshore and seabed they occupied and farmed and fished and used.  This was never all of New Zealand, nor even most of New Zealand. The rest of it lay unowned, and unclaimed.  They only ‘owned’ what they owned

Third, prior to the arrival of Europeans, Maori did not even see themselves as 'one people'; the word 'Maori' simply meant 'normal,' as opposed to the somewhat abnormal outsiders who had now appeared with their crosses and muskets and strange written incantations. The tangata whenua saw themselves not as a homogeneous whole, but as members of various tribes.  This was not a nation, nor even a collection of warring tribes.  Apart from the Confederacy of United Tribes -- an ad hoc group who clubbed together in 1835 in a bid to reject expected overtures from the French -- there was no single sovereignty over pre-European New Zealand, no sovereign entity to cede sovereignty, and no way a whole country could be ceded by those who had never yet even laid claim to it in its entirety.

Our 'Founding Document'?

So the British came, and saw, and hung about a bit. The truth is that some of the best places in the world in which to live are those where the British once came, and saw, and then buggered off -- leaving behind them their (once) magnificent legal system, and the rudiments of Western Culture. See for example, the USA, Canada, Australia, New Zealand, and of course (as noted in obituaries of former governor John Cowperthwaite) Hong Kong. We lucked out.

What the Treaty did do, for which we can all be thankful, was to bring British law to NZ at a time when British law was actually intended to protect the rights of British citizens, and it promised to extend that protection to all who lived here. For many and often differing reasons, that was what the chieftains signed up to.  To become British citizens, with all the rights and privileges thereof.

But as we’ve been at pains to day already, the Treaty itself was not a founding document. No, it wasn't. On its own, with just three simple articles and a brief introduction, there was just not enough there to make it a document that founds a nation. As a document it simply pointed to the superstructure of British law as it then was and said, 'let's have that down here on these islands in the South Pacific.'

The treaty's greatest promise was really in its bringing to these islands those rights and privileges that British citizens enjoyed by virtue of their then superb legal system; the protection of Pax Britannia when those rights and that protection meant something, and when British power saw protection of British rights as its sworn duty. The result of this blessing of relatively secure individual rights was the palpable blessings of relative peace, of increasing security, and of expanding prosperity.

Sadly, British jurisprudence no longer does see its duty that way, which means the legal context in which the Treaty was signed has changed enormously, and the blessings themselves are sometimes difficult to see. Law, both in Britain and here in NZ, now places welfarism and need above individualism and rights. That's the changing context that has given steam and power to the treaty-based gravy train, and allowed the Treaty and those who consume the Treaty's gravy to say it says something other than what is written in it.

The truly sad thing is that the Treaty relied on a context that no longer exists -- and the only way to restore that context, in my view, is with a new constitution that makes the original context explicit.  To restore the original legal context, and to improve upon it with a legal context that protects and reinforces an Objective rule of law -- as British law itself once did -- one that clarifies what in the Treaty was only vague or was barely put. And in doing so, of course, such a constitution would make the Treaty obsolete.

Thank goodness.

The Dream

Waitangi Day comes just two weeks after Martin Luther King Day. The contrast is spectacular. Perhaps we should remind ourselves of King's dream for the future of his own children:

I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character..."

Perhaps we will one day celebrate that same dream down here -- not as a dream, but as reality.  Celebrating our national day not as a charter for grievance that continues to poison discussion, but instead with real joy.  Shaking off the gravy train of grievance, and celebrating that the colour of a man's skin is of no importance compared to the content of his character. 

Perhaps one day we will actually celebrate the birth of this great little country, instead of seeing its birthday as an annual source of conflict.

Wouldn't that be something to really celebrate?

* * * * *

Linked Articles: Unsure on foreshore: A Brash dismissal of Maori rights? - Not PC
Do you have a people? - Not PC
Property Rights: A Gift to Maori New Zealand - Peter Cresswell
Education & the Racist Road to Barbarism - George Reisman
What is Objective Law? - Harry Binswanger
No Apology to Indians - Thomas Bowden
Superseding the Treaty with something objective called "good law" - Not PC
All hail the Industrial Revolution - Not PC
Cue Card Libertarianism: Individualism - Not PC
Cue Card Libertarianism: Rights - Not PC
Cue Card Libertarianism: Need - Not PC
Cue Card Libertarianism: Welfarism - Not PC
Cue Card Libertarianism: Ethnicity - Not PC
Cue Card Libertarianism: Government - Not PC
Cue Card Libertarianism:Constitution - Not PC
Cue Card Libertarianism: Property - Not PC
A Constitution for New Freeland - The Free Radical

Anti-smacking law is non-objective

Says Professor Jim Evans on the Bradford/Clark/Key law:

    This is not clear legislation. In creating this law, Parliament abandoned its constitutional responsibility to say with clarity just which conduct is criminal.
    The section results from a political fudge. Whatever other views one takes about the topic of smacking, that much at least ought to be kept clear.  [Hat tip Lindsay Mitchell]

The anti-smacking law is not objective law.  Just vote NO.

“He was asking for it” [update 3]

There’s no excuse for murder.

You can kill in self-defence if your life is in danger.  That’s justified.

You might kill by accident.  That’s manslaughter.

But if you kill because you’ve been “provoked” – an excuse being run in two recent trials – now that’s just bullshit.  It’s not killing in self-defence: a dose of the verbals is not a threat to your life. It’s not an accident: if you can’t control your anger, then you need to learn how to.

Killing when provoked is not manslaughter; it’s murder. Killing while claiming “diminished responsibility” is not manslaughter; it’s murder. In both cases, the killer has to take full responsibility for what he’s done.

There is no argument for retaining in law either the “defence” of provocation, or the defence of “diminished responsibility.”  Self-responsibility means taking responsibility for what you’ve consumed (no matter what your consumption might lead to), and taking responsibility for your actions – however angry you might have been.

Living in a civilised society means recognising that force must be barred from social relationships – even if you’re provoked; it means recognising the right to life,  even when some arsehole makes you want to strangle them.  The right to life means what it says: the right to be protected even when you’ve just pissed off someone who has a drug habit or a short fuse.

The “defences” of provocation and “diminished responsibility” reverse the order of objective law.  Instead of protecting the victim it puts the slain on trial; instead of condemning the guilty it offers them a free pass and a grandstand; instead of inviting good court reporting it gives media ghouls a chance to contaminate the airwaves with grotesquery and narcissistic whining; instead of a simple trial based only on the facts, it grants defence lawyers a fortune in legal aid to run a defence based on narcissistic whining and flatulent self-delusion; and instead of reflecting good objective law it makes a mockery of law, of justice, and of the very right to life that good law is supposed to protect.

There is no argument for retaining the “defence” of provocation.  None at all. Murder is murder. 

“He was asking for it?”  “She was asking for it?” No, you arseholes.  They weren’t.  Sticks and stones will break your bones, but provocation isn’t going to hurt you: Get over it.  And if you can’t, if you “snap” and do your worst, then take responsibility for that instead of whining and wasting everybody’s time – while besmirching the memory of your victim.

UPDATE 1:  Philip comments (thanks Philip) that those who are interested in reading more about the issue of provocation should read the Law Commission’s pretty comprehensive report released back in 2007, which concluded “that section 169 of the Crimes Act 1961 should be repealed, thereby abolishing the partial defence of provocation in New Zealand. We believe that it will be preferable for provocation to be dealt with by judges solely as a sentencing issue.”  For once, I agree with the Law Commission.

UPDATE 2: Greg Edwards has started a Facebook group called Clayton Weatherston is a Murderer. He committed murder, not manslaughter.  Join up now before Facebook (or the Solicitor General) closes it down as “hate speech.”

UPDATE 3: ‘Blunt’ takes on the “brainy guy defence”:

Law versus the lynch mob [update 3]

Let me contrast objective law with a new law about to be foisted upon us.

First, here’s what objective law looks like:

All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it…

Further:

[Objective law] requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures.

Contemplate those words “The retaliatory use of force requires objective rules of evidence to establish that a crime has been committed” while you read s92A of the Copyright Act, which on its present timetable will be passed into law in 11 days, 17 hours and fifty-four fifty-three minutes.

INTERNET SERVICE PROVIDER LIABILITY
92A
Internet service provider [sic] must have policy for terminating
accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement
a policy that provides for termination, in appropriate circumstances,
of the account with that Internet service provider of a repeat infringer.
(2) In subsection (1), repeat infringer means a person who repeatedly
infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

What that means, says Matthew Holloway of the Creative Freedom Foundation, is Guilt by Association.

The … law reverses New Zealander's fundamental right to being presumed innocent until proven guilty, punishing internet users with disconnection based on accusations of copyright infringement without a trial and without evidence held up to court scrutiny.

The proposed law fails to adequately define “internet service provider.” (I’m a blogger; apparently that makes me an “internet service provider.”) It fails to protect people against false, frivolous or flawed accusations. (Matthew Holloway gives some examples here.) It ignores entirely the basic rules of evidence developed, with good reason, over many centuries. It confuses an accusation with a conviction.

It’s bad law.

My opposition to the Copyright Act is not due to its intent (which is to protect copyright) but because it confuses an accusation -- “He done it!” – with its opposite, i.e., : “evidence to establish that a crime has been committed.”

It is the difference between law and a lynch mob – with the lynch mob’s rope provided by poorly drafted, non-objective law.

I’m agin’ it.

NB: Contemplate this, from the Ayn Rand Lexicon, which describes the future under this law:

When men are caught in the trap of non-objective law, when their work, future and livelihood are at the mercy of a bureaucrat’s whim, when they have no way of knowing what unknown “influence” will crack down on them for which unspecified offense, fear becomes their basic motive, if they remain in the industry at all-and compromise, conformity, staleness, dullness, the dismal grayness of the middle-of-the-road are all that can be expected of them. Independent thinking does not submit to bureaucratic edicts, originality does not follow “public policies,” integrity does not petition for a license, heroism is not fostered by fear, creative genius is not summoned forth at the point of a gun.

Non-objective law is the most effective weapon of human enslavement: its victims become its enforcers and enslave themselves.

UPDATE 1: David Farrar has a guest column on the issue of S92A at Muriel Newman’s Centre for Political Research.

UPDATE 2: Russell Brown explains why your friends’ pictures are turning black all over Facebook, MySpace, Twitter. “You're seeing The Blackout, a netroots protest against Section 92(A) of the Copyright Act, which comes into force on February 28.”

And he identifies another ill of this law, if it were to come into effect: “It is not only that this law denies the accused any due process, it is that it stipulates a penalty that no court would impose in adjudicating a copyright complaint even if infringement were proven…”

UPDATE 3: Stephen Fry takes the protest international on his Twitter page. (For Americans: Stephen Fry was Hugh Laurie’s comedy partner back when Hugh still spoke English.)

Law is the loser on the day

No one comes out well from Solicitor General David Collins' decision not to prosecute the 'Urewera 16,' least of all the law and the lawmakers.

Several basic principles of British law that for centuries have acted as bulwarks of liberty have been exposed as damaged if not entirely absent from New Zealand justice: The presumption of innocence... the right to face your accuser ... the principle that justice must only be done, it must be seen to be done... in recent weeks all these fundamental legal principles have been more evident by their absence than their presence.

Starting with the last, in the absence of the evidence against the defendants being made public (which it now never will be), no one in the country outside the police the Solicitor General and the defendants know for sure just what the hell was going on. For public vindication, the police have to point to the only independent person to have seen all the evidence, the Solicitor General, and to his strongly worded vindication of their work, which stressed

that the police have successfully brought to an end what were very disturbing activities. That the police did so without a single shot being fired, injury or loss of life, is a tremendous reflection on the professionalism and integrity of the New Zealand police.

Let's just repeat that: The police have successfully brought to an end what the only independent person to review the evidence says were very disturbing activities. So we have a right to feel grateful, it seems, that the police were acting to prevent something very disturbing happening.

But just how disturbing were they?

Was the scale of the police operation justified?

Did they overreact?

Should we be scared?

Sadly, all these questions which have been hotly debated ever since this show began will never really be properly answered (and here into that vacuum will rush in much flatulent speculation, media moronry and a mah-jong of lawyers hungry for work) because the Act under which evidence was acquired and under which charges for the very disturbing activities would have been brought if they could be is so "incoherent,"as to make that impossible, according to Collins, meaning the evidence will never be made public and will probably have to be destroyed. The law is so bad that as Colin Espiner describes it:

For all the bragging from both major parties about the steps taken to protect us against terrorism, it now appears that Osama bin Laden himself could have been conducting operations from a cave in Ruatoki and the case against him would have been thrown out of court.

So we'll just never know, which is unfair to the police, to the defendants, and to us, the public. Justice cannot be seen to be done. It's reassuring that the independence of police and judiciary has been demonstrated (something some protestors might care to focus on), but less than comforting that without having seen the evidence for ourselves we're left instead to rely on the judgement of one man. David Collins.

We're back to the rule of men, not of law.

And this damages the defendants as well. They've been neither cleared by yesterday's ruling nor properly charged. Defendants properly have the right to face their accusers; the right to know what charges are being laid, and the right to answer those charges and (if they can) to clear their name. But because of an incoherent law, these defendants have lost that right, and we the public will never know whether they would have been able to clear their names or not.

The further tragedy is that they're entitled to the presumption of innocence instead of the whispering about them that will now take place to fill the vacuum, but because of that incoherent law we'll never know for sure whether they would be able to face the charge, and explain the evidence and to have their names cleared or not. They deserved that chance. And we deserved to know. Everybody loses because of bad law, because of an act that, in the words of the Solicitor General is

unnecessarily complex, incoherent and as a result almost impossible to apply to the domestic circumstances observed by the police in this case... A number of people could, on one view of it, [have] possibly come close to meeting the criteria under the act. If the legislation had been framed differently, it is possible that charges under the Terrorism Act may have been able to be brought.

That last sentence is hardly a ringing endorsement of innocence, is it; but the defendants will never be able to properly challenge the odour that it leaves.

So who's to blame for this "incoherent" legislation? It's partly due to the difficulty of drawing up law to stop an act of terror before it happens, rather than gathering evidence afterwards when the evidence can be counted in dead bodies. That said however, it's not beyond the wit of man to draw up such a law, and Winston Peters was commendably direct this morning in fronting up and saying who was fundamentally responsible. referring to himself and his parliamentary colleagues who were responsible for drawing up and voting for it he told Sean Plunket who asked him who's to blame, [audio here], "We are."

It's true.

It's essential that the error is fixed soon, but to be fair the same errors permeate far too much of New Zealand law, and not just this incoherent legislation: lack of clarity; lack of precision; law that is unpredictable in outcome; that ignores fundamental legal principles; or that ignores or explicitly overrides fundamental individual rights. These recent events show again the danger of law that is not objective-- ie., law that is clear, precise, predictable, contextual and rights-based. Harry Binswanger explains the importance of objective law:

Laws mean force; but "the rule of law" - objective law - means force limited, checked, supervised, tamed, so that it becomes the honest citizen's protector, not his nemesis. To achieve this goal, laws must be objective in both their derivation and their form. In regard to derivation, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" means that which has the character of an object in reality: a firm, stable, knowable identity. In both respects, legal objectivity stands opposed to the subjective, the arbitrary, the whim-based.

It is to the subjective, the arbitrary, and the whim-based to which New Zealand law under Geoffrey Palmer's influence has been explicitly directed for some time. Let us hope this case acts as a wake-up call to drafters of future legislation. The two problems drafters need to face with specifically the anti-terrorism legislation are these. First, in the words of a colleague:

The grounds, under NZ law, for 'terrorism' to exist are fairly narrow. To cut a long story short, the Crown would need to prove [for example] that Tuhoe was an 'ideology.' To give an analogy, if you are found in possession of flour, eggs, butter, milk, a bowl, a wooden spoon and an oven NZ law requires you to prove the person intended to bake a cake. Simple as that..a cake, nothing else. Their defence could be they intended to make pikelets or scones...and a Jury must take that possibility into account. It is a case of badly drafted law and insufficient debate in Parliament, in the heat of the World Trade Center bombings.

And second, in the words (again) of the Solicitor General:

The fundamental problem is that the legislation focuses upon an entity that carries out a terrorist act, and if individuals are actually developing towards ... carrying out a terrorist act, they aren't yet an entity that is carrying out a terrorist act, and so there is a tautology in the legislation which is extremely difficult to unravel.

It is essential that all such difficulties are unravelled swiftly, and before respect for the country's laws does.

Justice delayed makes a mockery of justice.

Michael Bassett makes the point in a recent column that justice delayed is justice denied -- that these days one may wait up to five years just for a court fixture, with all the attendant costs and anguish and uncertainties. It was not always so, he says, and he puts the question: Why?

Why have so many elements of today’s justice system seized up like arthritic joints?

NZ's arthritic justice system has not just denied justice to victims, to litigants and to all those in the dock for years while they await a verdict; it hasn't just denied it to the families of all these New Zealanders; it has not just left people's guilt and innocence in limbo for years; it has not just left a whole mah-jong factory full of lawyers rich beyond their dreams, while delivering little but lawyers' letters and invoices; it has also meant that the arthritis of delayed injustice has fed through to NZ's commercial system, where we find that the delays and the costs of justice are reason enough for justice not even to be pursued, since any gain made in the roundabout of litigation is lost in the swings of delay, and in the litter bin of lawyers' bills.

Contracts below a figure of, say, $50,000 are now hardly worth the paper they're on since a remedy is both too time-consuming and too expensive to realistically contemplate; and contracts between financial unequally parties are hardly worth the risk, since when justice is delayed and debauched as it now is, the winner is generally the one with the biggest pockets -- and of course, their lawyers.

Justice delayed makes a mockery of justice.

Which still leaves the question: Why is this so? Why do we see so much of the justice system and its accoutrements, and so little justice -- why does it take so goddamn long? It's not for a lack of political attention to the question -- as Bassett notes, if anything in recent years we've seen the opposite:

[We've]tried more police, more judges, more prisons and more crisis intervention officers, but our justice system nears a standstill. Many civil litigants have no hope of an early fixture, and dates for serious trials and sentencing take far too long.

Almost everything has been tried, says Bassett, but still the problem increases. But let me sound a cheerier note. There are two thing that haven't been tried - or not at least in recent years:

1. Fewer laws.
   
2. Better law.

I'll let you think about that for a bit.

Thought about it? Well, think about this in relation to dire need for fewer laws: Geoffrey Palmer once boasted of preparing and having passed the most pages of legislation in a year, ever. Boasted, so he did. He's now been surpassed. Legislation is now churned out at the rate of, not hundreds, but thousands of pages a year. Last year alone 1,324 pages of statutes were passed, (comprising 76 public Acts and two private Acts) and 2,762 pages of Statutory Regulation (comprising 325 Statutory Regulations). But this was a slow year, due to the election. In the previous year, the respective figures were 2,062 pages of Statute and 4,116 of Statutory Regulation.

That is over six-thousand pages of legal garbage in just one sitting year. No one can digest all that! No human being anyway. Not even the high-priced vermin that infest so many of our local legal high-rises can read all that.

And Geoffrey Palmer has something else to answer for: the making of bad law. When I call for fewer and better laws, objective law is what I mean by that -- law that is clear, precise, predictable, contextual and rights-based. Geoffrey was explicitly opposed to that. He introduced to local law the concept of ambiguous law -- of law that is intentionally vague and imprecise; law that was totally unpredictable, that in order to be 'understood' needed to be defined in lengthy court struggles (with all parties in limbo until it had been clarified, and with justices frequently asking themselves the question: "What was in the minds of MPs when they wrote this?" Cometh the all-too obvious answer: "Nothing at all.").

The Resource Management Act stands as a monument to Geoffrey's slap in the face of objective law, which principles have been all but forgotten. The undefined (and undefinable) "principles of the Treaty of Waitangi" that Bassett bewails, and that has introduced so much uncertainty into the very heart so much recent legislation is another monument to Geoffrey's work (and as I recall, its introduction to so much legislation was the brainchild of and happened with the enthusiastic support both of Richard Prebble, and indeed of Michael Bassett himself).

Setting a scrubcutter to nonsense law, and to nonsense in law, would at once clear the shelves of law libraries and the overbooked schedules of law courts, and it would give effect too to the promise of the Libertarianz unemployment policy, which promises an enormous rise in unemployment ... among the likes of lawyers, law clerks and court booking agents.

A bonfire of rules, regulations and statutes would lead to less work for lawyers, but better access to law, and more justice for litigants.

Simple.

The astute reader will by now have a number of questions. Perhaps the foremost amongst them is this one: what did I mean by the term "a mah-jong of lawyers"? Ah, I'm so glad you asked. I shall let the great HL Mencken answer that one:

All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it. If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we'd be freer and safer, and our taxes would be reduced by almost a half.

Wise words. I must confess, I enjoyed sharing them with the editor of the Law Society's journal, Law Talk before a recent election. I doubt that he published them.

Perhaps, given the current apoplexy over legal aid rates, he might consider doing so now?

LINKS: Slowing down justice - Michael Bassett [Hat tip, Leighton Smith]
What is objective law? - Harry Binswanger
Policies - Libertarianz
Legal snouts - Peter Cresswell

RELATED: Law, NZ Politics