The Elephant in the Court Room: An Essay on the Judiciary’s Silence on the Legitimacy of the New Zealand State

Abstract

The questionable legitimacy of the New Zealand state is not a new discovery. The difference is that now, due to changes in the wider political, institutional and legal context, knowledge of the state’s suspect claim to legitimacy, and the courts’ role in upholding it, is increasing. For example, a wider public now appreciates that Māori did not cede sovereignty in te Tiriti o Waitangi. As a result, the courts’ role in supporting the legitimacy of the state is exposed as potentially unjust. I suggest that the courts would be better to formally acknowledge the weakness of the state’s claim to legitimacy and their role in upholding it. Contrary to common fear, acknowledging the issue does not mean that the courts, as institutions of state, must put down their pens. Instead, addressing the question also increases transparency in the law and thus the courts’ authority.