For us living in Aotearoa/New Zealand in the 21st century, having as our head of state a hereditary monarch, based in another country on the other side of the world, seems an odd thing. Yet, as judicial officers, we are closely bound to this seemingly anachronistic state of affairs.
As part of our appointment process, we swear an oath of loyalty to the monarch and his or her heirs and successors. In the jury courts, cases are brought in the name of the King. Justices of the High Court and above are “King’s Judges”. The very name “court” derives from the fact that judges acted as surrogates for the King or Queen, who, after all, was perceived as the “fountainhead of justice”. In the past, some senior judges would serve as “Privy Counsellors”. Once upon a time being a privy counsellor could mean watching the monarch go to the toilet, should you be lucky enough to become “groom of the stool”. Being close to an absolute monarch in such an intimate way was a sign of prestige and influence. More modern monarchs, much like parents of young children, probably prefer spending such times alone.
It is interesting to reflect on how this state of affairs has come about and what it means. Is it just an old ingrained habit that we can’t quite quit? Is it a cultural hangover that does not reflect life as we now experience it? If the latter, does that mean we should jettison all cultural baggage that does not make sense in a modern multicultural world? Should there be some form of cultural “Swedish death sorting” where you can hang on to relics of the past for a period of time, but sooner or later clear them out so your children don’t have to hire a skip after you die? Do you keep the pretty artefacts, the one that was nana’s favourite or the one you might be able to sell off on the sly for a good price? Or maybe we should be cautious about adopting a brutal minimalism when it comes to our past. It is possible these relics can both connect us to our past and still retain surprising flexibility, quietly reinventing themselves over the centuries, turning up dusty, battered, and chipped, but still relevant.
Our current royal family trace their right to rule back to the Norman conquest of England just shy of 1000 years ago. Ironically, King Charles is a direct descendant of both leaders in the Battle of Hastings, William the Conqueror and King Harold II. The traditional approach to English history seems to be to regard the Norman conquest as having set the foundation for the modern British state. From there, we derive our laws and liberties. Stories abound of heroic nobles jostling for power and fighting glorious battles. Of course, the latter is, and always has been, nonsense. The Normans were Viking thugs with a thin veneer of French culture. The conquest of England smashed a well-functioning civil community to profit from it. The best way to think of it would be if a Mexican drug cartel took over New Zealand. In other words, England was a narco-state without the drugs. Most of the history of England is gang lords fighting each other for territory and influence. As usual, when you strip away the mythology of warrior culture there is left a litany of misery and death for the common person. For instance, in the conquest itself, William caused about 100,000 (5% of the population) to be starved to death in the “harrying of the north” as a way of asserting authority.
In one particular way, the Norman conquest has profoundly influenced our legal system. Because William considered he, not Harold, should have been elected King (yes, the Saxons elected their Kings albeit on a small franchise, he took the view that the entire country had forfeited all its land and possessions to him, personally. He now owned everything. He made the laws and he enforced them. Individuals might be able to exercise certain rights over property, with the permission of the King, but ultimately it all belonged to the King. Of course, one person cannot hope to run an entire country as personal estate. If nothing else, it is just too hard to keep the lawns trimmed. In between the thuggery, the history of England is about the delegation of responsibilities and slow relentless acquisition of rights at the expense of the King. Eventually, laws are drafted and enforced by specialist bodies. Certain rights, at least for the powerful, are guaranteed by the likes of Magna Carta.
But bubbling away in plain sight was an idea, already 1000 years old by time of the Normans, which was radical and subversive. Its proponent, nowadays regarded as something of a misogynist and homophobe, was St Paul. He spells out his idea in his letter to the Galatians where he states that, for Christians, there is no distinction between Jew and non-Jew, slave and free, male and female. All are the heirs of Abraham. As Paul’s associate St Peter put it, God has no favourites. This idea that all people equally share inherent dignity and worth gifted by God was anathema to the Roman authorities. They saw it exactly for what it was, hence Paul’s execution and the brutal steps to stamp out this heresy. Indeed, such an idea would have been regarded with derision by all ancient civilisations. But this idea of fundamental human rights shared by all eventually took root in Western thought, especially through the Enlightenment and the movements for democratic reform of government. Slowly, the rights of the monarch have devolved into Parliament, the executive, and the judiciary.
The twin struggles of wresting power from the once absolute King or Queen and recognising inherent human rights and dignity, equally shared, have transformed the monarchy. It means the ultimate right to all property no longer rests in the King, but in the community of equals. Ultimately, resources and rights to them exist to benefit the common good. Laws are enacted by representatives of the community and applied fairly by its agents — us. The King is now a symbol for the community, helping illustrate where we came from and how we got here.
Of course, if we are truly a community of equals there must be obligations to each other, to other communities around the world, and to future generations. These ideas of human dignity, equality, rights, and obligations vesting in the collective are not just to be found in Western cultural identity. Concepts of whanaungatanga and manaakitanga strongly speak to the importance of relations between individuals.
Being largely of Saxon/Celtic heritage, I have an atavistic dislike of the Norman Kings. I have no belief in the inherent superiority of the aristocracy. Indeed, they are the best refutation of eugenics available; the shuffling of the DNA code makes a mockery of most laws of inheritance. That said, to me, the story of depowering the monarchy helps explain my values and my belief in a civilised community. It is a link to a living past. It is a tendency of all generations to treat the lessons of history either as misty-eyed hagiography or with shame-filled repudiation because our forebears did not share our modern sensibilities. Neither is correct. We can acknowledge and reject the mistakes of the past, and learn from them, without rejecting our history. We forget our history at our peril. Because of that, I would keep the monarchy on.
Happy birthday, Charles.
Noel Sainsbury
President