Tick-Tock Tikanga: The Perverse Core of Bicultural Legality

What happens when tikanga Māori becomes binding law but only some may interpret it? This piece challenges the legitimacy of biculturalism in NZ’s legal system.

Let me begin, as always, with a paradox. In New Zealand, a country obsessed with the trauma of its colonial past, we are witnessing the emergence of a strange new legal orthodoxy, one that claims to heal historical injustice by re-imposing the very logic of exclusion that justice was supposed to overcome. This new orthodoxy is the elevation of tikanga Māori, a rich and spiritual body of customary law, to the level of binding principle for all citizens, regardless of cultural background, ancestry, or understanding. We are told this is reconciliation. I say it is mystification. It is not the postcolonial moment. It is its parody.

Here is the obscene kernel: under the pretense of decolonisation, we are creating a legal system that is binding on all but interpretable by only some. You must obey the code, but you may not question it. You are subject to its principles, but you may not reinterpret them unless you descend from the right bloodline. If this sounds familiar, it should. It is a return not to tradition, but to theological feudalism. This time, the high priests wear woven cloaks and speak of whakapapa, but the structure remains: there is a sacred law, and you are not its author.

John Rawls, in his oh-so-liberal attempt to design a just society from the “original position,” said we must only accept rules we would choose if we did not know who we would be. Fine. But apply this to tikanga and the contradiction is immediate. Suppose I am a non-Māori child, born in New Zealand. Under the tikanga-infused legal system, I must live under principles I cannot contest. They were not chosen behind the veil of ignorance. They were carried through a veil of genealogy. Already, Rawls turns in his grave.

Ronald Dworkin, whose defence of law as integrity is charmingly naive in a post-truth world, still understood something important: law must be a shared narrative, an act of collective interpretation. Judges are not oracles - they are participants in a moral debate. The citizen, he said, must be able to see themselves as a partner in the legal process. But what happens when part of the law, the tikanga part, is removed from this interpretive contest? What happens when it becomes untouchable? Then the law is no longer a novel we co-author. It is a sacred scroll we are punished for misreading.

Jürgen Habermas, that eternal optimist of discourse ethics, argued that law is only legitimate when all affected can participate as equals in its formation. But here we hit the real, delicious contradiction of modern New Zealand. We are told, “All must follow tikanga,” and in the next breath, “But not all may define it.” I put it bluntly: there is no discourse here. There is invocation. Habermas would not call this law. He would call it liturgy.

Jeremy Waldron, poor soul, clings to the Enlightenment fantasy that laws derive legitimacy from being debated in open assemblies. “The dignity of legislation,” he says, “is that it’s written by the people.” In New Zealand, the people may speak, but not about tikanga. That is a domain for kaumātua, tohunga, iwi leaders. Tauiwi may pay respect, but not interpretation. They may genuflect, but not edit. This is not legislative dignity. It is symbolic bondage.

And then there is Lon Fuller, who insisted that a rule is not truly law unless it is general, clear, consistent, and knowable. Well, try explaining utu, tapu, or mana in a courtroom. Not in cultural terms. In legal terms. Can the judge, who is Pākehā, render a verdict on whether mana has been upheld or not? Can a defendant argue that the whakapapa of their accuser is incorrect? The idea is absurd. But this is the point. These are not just rules. They are rituals. They function not to regulate conduct, but to sanctify a hierarchy. The law becomes mystical. You cannot appeal a ghost.

Roberto Unger, a radical I genuinely admire, believed that law must be plastic, capable of bending to human agency. Otherwise, society petrifies. But tikanga is not plastic. It is genealogical. It is descended, not debated. To critique it is not merely mistaken. It is offensive. This is not flexibility, but fragility disguised as sacredness.

And now, let us not forget Bourdieu. He taught us that law always hides the violence of its imposition behind a veil of symbolic capital. When a judge wears a wig, it is not just tradition, it is theatre. In New Zealand, the new performance is bicultural legitimacy. But the same old trick is being played. You are excluded, not because you are inferior, but because you lack the right habitus. You do not speak the right language. Your body does not move correctly on the marae. You are a legal subject, but not a legal speaker.

Yes, yes, I hear the well-meaning voices. “But non-Māori can learn tikanga!” Sure, and a Christian can study the Talmud. But may he interpret the Torah in the synagogue? No. This is the whole point. The line between participant and observer is never cultural. It is political. And in tikanga, that line is ancestral.

This is where the liberal mind fails. It assumes that if we just read enough books, learn enough Te Reo, show enough respect, we can join the conversation. But the door is not shut because you have not studied enough. It is shut because you are not of the people. This is not racism. It is spiritual tribalism. And it is incompatible with a democratic legal system.

So, what is happening? We are told this is partnership. No, it is proprietorship. The state is outsourcing law to a sacred order it cannot control, and that the citizen cannot question. This is the joke: to decolonise the law, we are recolonising the citizen. The Pākehā must now internalise tikanga, not because he chooses it, but because it is his new moral overlord. We are not reconciling two systems. We are making one system sacred, and the other obsolete.

Let me be clear. Tikanga has its place. It is beautiful, layered, vital. It belongs in iwi governance, in marae protocol, in voluntary interaction. But to raise it to state law is to force it into a space it was never meant to occupy. You cannot make the karakia into statute. You cannot turn whakapapa into precedent. And when you try, the result is confusion for some and total power for others.

But perhaps that is the goal. Not clarity. Not justice. But control.

In the end, the question is not whether tikanga is valid. Of course it is, within its own world. The question is whether it can be universalised without becoming coercive. And the answer is no. A law that binds all must be open to all. If only some may speak it, then the others are not citizens. They are serfs.

Tikanga cannot become law for all unless all can become its interpreters. But that is precisely what is forbidden. And so, we are left with a system where you may be judged, but not judge. You may be bound, but not bind. You may follow, but never lead.

I end with a thought experiment. Imagine a legal system where the rules bind you, but only those descended from a certain ancestry may interpret them. If we applied that logic to English common law, Māori would rightly revolt. Yet when the same logic is applied through tikanga, we are told it is ‘respect’. This is not partnership. It is submission dressed in cultural reverence. It is not reconciliation, but hierarchy restored under a different flag.

Tikanga cannot become law for all unless all can become its interpreters. But that is precisely what is forbidden. And so, we are left with a system where you may be judged, but not judge. You may be bound, but not bind. You may follow, but never lead.

Welcome to “biculturalism”.