An enquiry into the function of the magico-religious as a jural mechanism in primitive Maori society (1965)
AuthorsHooker, M. B.show all
This enquiry will attempt to establish the structure of a legal order in primitive Maori society and to describe its function and technique. I realise that such a project requires much more space, time and study than is practical here, but it has been endeavoured to sketch the lines of a possible method of enquiry. I therefore hope that the over simplification of the mas of source material available has been successfully minimized. The enquiry has been based mainly upon the method put forward by K.N. Llewellyn, more specifically in his postulation of the “law-job” as a functional prerequisite of any society. However, the writing if this learned theorist is not particularly clear in some places and therefore I have had to make some assumptions as to his exact meaning: as a consequence, it is probable that my interpretations are not the only ones possible. In addition, I have used the basic concepts of Hohfeld to give life and depth to the postulates of Llewellyn, and this has necessitated the interpretation of these concepts into a form thought suitable for the subject. Again my interpretation may not be the only ones possible, but at least they have the virtue of comparative clarity, thus enabling certain institutions of the primitive Maori to be approached from a legal angle. Because of the nature of this enquiry I have has to move outside the strict scope of legal theory into such diverse fields as anthropology, political science, sociology and philosophy. However, as Oliver Wendell Holmes pointed out as far back as 1899, it is now fairly widely accepted that jurisprudence can profitability draw inspiration and useful information from these fields. Theories of philosophy have, of course, determined theories of law since the time of Plato and, I might add, the same applied to the primitive Maori. It is also well to stress the fact, freely admitted by all but sometimes lost sight of by analytical jurists, that law does not exist in vacuuo but is part of what Priestly calls our “warm messy mammalian existence”. It should also be noted that he various rituals described have been peculiarly well documented. All Maori had comparable rituals identical in structure if not in form. Though there might seem to be an undue emphasis placed upon the spiritual and mental concepts of the Maori, together with an outline of their philosophy, this has been thought essential to establish those inarticulate major premises” necessary before any consideration can be given to the more technical legal forms. It is, in fact, the “making explicit the implicit philosophy” without which as F.S.C. Northrop contends, no analysis of primitive legal institutions could be undertaken. Finally, it remains for me to acknowledge my debt to Mr L.A. Baigent of the English Department, University of Canterbury, who read the final draft of this enquiry and affected many improvements. In addition I would thank the Library staff for their assistance and generous concessions.