GARY JUDD KC: A Story Is Not Enough

Witchcraft and all that

In A Halfling’s View, The Tyranny of a Good Story, subtitled “In praise of guides who can prove what they say — and against the fashion that pretends it doesn’t matter,” retired Judge David Harvey contrasts An account you can check, or an account you must swallow. He says:

Strip away the sentiment and the choice is stark.

The evidence-based guide hands you a chain of reasoning. You can inspect it. The inscription is right there. The stratum is documented. The radiocarbon date is published, contested, defended, refined.

When such a guide admits that the “Tomb of Philip II” at Vergina is probably his but is still argued over, that admission is not weakness. It is in fact the sound of a discipline of study being honest about the edge of its own knowledge.

You are never asked to take it on faith. You are invited to check.

The guide who works purely from oral tradition offers you the opposite perspective.

“Believe me”, they say, “because this is the account I was given”

The trouble is that it is an account you cannot verify, that rests on no record outside the telling, and that arrives already reshaped by whoever last found it convenient to reshape.

This is not “knowledge” that a serious person should accept. It is authority without accountability. We would dismiss it in any other field.

Keep that in mind while you consider how knowledge of tikanga is gained.

35. Knowledge of tikanga is passed down through sources such as: wānanga (institutions of learning), whaikōrero (oratory); karanga (call); waiata (songs); mōteatea (traditional chant or lament); whakapapa recitations (genealogy) whakatauākī (proverbial sayings) and pūrākau (stories). It is also learnt through exposure to its practice in everyday life.

36. The foundational notions of tikanga are widely known. However, some tikanga might be tapu (sacred) and kept confined to certain expert people. For example, certain karakia (ritual incantations) would be only used by a small group of experts who have the appropriate training, expertise and standing.^[1]

Harvey’s description of what is based on oral tradition as something that “cannot [be verified], … rests on no record outside the telling, and that arrives already reshaped by whoever last found it convenient to reshape,” is a perfect description of how tikanga is ‘known’. Tikanga is even less open to verification because some tikanga may be tapu and kept confined to certain experts.

Harvey notes that “This is not “knowledge” that a serious person should accept. It is authority without accountability. We would dismiss it in any other field.”

Yet there are people who seriously opine that tikanga should not only be accepted but treated as part of New Zealand law. They include judges of the Supreme Court of New Zealand, members of the Council of Legal Education, academic lawyers and others.

Is Harvey wrong or have those who would have us accept that tikanga is part of New Zealand law disqualified themselves from being taken seriously — in this context, at least? If they can’t be taken seriously in the tikanga and law context, does this not diminish their credibility in other areas?

This takes me to a recent experience whilst travelling in the Balkans last month.

A young Montenegrin student studying international relations but driving her father’s taxi during her holidays took me and my partner from our arrival port to a destination elsewhere in Montenegro. Having ascertained we were from New Zealand, she asked what religion was practised here. We said, ‘None, really. Everyone’s able to believe what they like or nothing at all.’ She said, ‘You mean, you do witchcraft.’

She like most Montenegrins and the people of adjoining Serbia is of the Eastern Orthodox faith. The split between Eastern and Western Christianity culminated in 1054 when there was a formal mutual excommunication dividing the Christian world into Eastern Orthodox and Roman Catholic branches. Protestantism arose later, as a protest against the Roman Catholic branch brought to a head with the writings of Martin Luther in the mid-16^th century.

Theology in Orthodoxy is mystical. It is the direct, experiential encounter with God — not through abstract reasoning, but through prayer, ascetic practice, and sacramental life. It is rooted in the belief that God is ultimately beyond conceptual comprehension, so the deepest knowledge of God is experiential, not merely intellectual. Perhaps this explains our driver’s somewhat surprising enquiry and her reaction to our answer.

We discovered that what our driver meant by her presumption that we ‘do witchcraft’ was that we worshipped many different gods. When we explained that we didn’t and in fact, we personally disbelieved in the existence of any, her inability to comprehend such an alien idea was obvious.

What we could have added was that the worship of many gods, was nevertheless making a comeback in New Zealand. Primitive societies explained natural phenomena by what we now know to be fantasies. Most had a plethora of gods. Many believed that heroes were the offspring of one or more gods. The Greek hero Achilles was believed to be the son of a human father and a sea nymph.

The Greek and Roman gods were supplanted by the ascendancy of the one-God religions, and the term paganism entered the vocabulary to describe what had gone before.

One aspect of paganism is a particular affinity for or sensitivity to the supposed spiritual or mystical aspects of nature. Pantheism or nature-worship is a set of religious beliefs or practices derived from ancient myths or religions. That’s what is solemnly advanced by certain elements, the neo-paganists of today’s New Zealand society.

Learned professors say that tikanga came out of the land. Supreme Court judges nod sagely and say we must treat tikanga as first law. The Council of Legal Education says law students must be compelled to learn about tikanga. Academics in the law schools say the first law was tikanga, then it was supplanted by ‘western’ law, now tikanga has been resurrected. The Northland Regional Council, like many other local authorities, says rivers are ancestors, perhaps like Achilles’ Sea nymph mother, and that gods and taniwha are involved in water related matters.

In the words of a compendium of tikanga concepts, “the concept [of mauri] has made a strong resurgence in recent years,” after having “almost faded from memory by the 1960s … as it was not reinforced by Christian beliefs.”

Mauri, commonly said to be an attribute of a river and other things, is explained as like the classical Greek notion of thymos, mortal but immaterial, embracing consciousness, activity, rationality and emotion. In other words, the attribution of human characteristics to inanimate objects.

How low we have sunk in the scales of rationality is evident when even Parliament has succumbed to the wiles of mumbo-jumbo by attributing human personality to rivers and mountains.

Perhaps our taxi driver got it right when she asked whether we ‘do witchcraft.’

^[1] Taken from the Statement of Tikanga, appended to the Supreme Court’s judgment in Ellis v R [2022] NZSC 114.

Gary Judd KC writes at Thoughts from the North