State Formation And Law In The Pre-European Pacific

• Date: 01 January 2023

State Formation a nd Law in the Pre-Europea n Pacic

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STATE FORMATION AND LAW IN THE

PRE-EUROPEAN PACIFIC

*



One of the most inte resting and exci ting developm ents in the study of Pa cific

archaeology a nd Pacific hist ory is the grow ing literature on s tate formatio n in the

prehistori c Pacific. e principa l polities discussed to d ate are pre-European Tonga and

Hawai‘i, both of w hich were argua bly “archaic” stat es before European ar rival in the

Pacific, but th ere may be other examp les of early state form ation in Ocean ia, perhaps

in Micronesi a. Some legal th eorists hav e claimed, in accurately, that “ law” is a product

of “states”. Whethe r that is, or is not th e case, where do es this argume nt now lie once

it is accepted tha t there actually we re states in the anc ient Pacific i n any case? What

remains of the “st ate”/”law” nexus given the growi ng scholarly acce ptance that ther e

were pre-Europea n states in Ocean ia? is articl e seeks in part , but only in part , to

connect the new l iterature regard ing state format ion to wider debat es in jurispr udence

and anthropolo gy relating to law. As Teemu Rusko la in his book Legal Orie ntalism (2013)

has observe d, “[i]t is exceedin gly dicult, if n ot impossible , for us to think of poli tics

outside the fra mework of states , and of states out side of law”.1 It will be arg ued below,

however, there is n o necessary c onnection: it is q uite possibl e to speak meaning fully of

Māori, Polyn esian, or Trobriand Island la w – irrespective of whether a ny of these places

ever were, or are , “states”.

I. Introduction

There has been a re surgence of interest i n state formation i n antiquity i n recent

scholarsh ip. No one doubts that very p otent entities such a s the Roman Republ ic and

the Roman E mpire were stat es by anyone’s definit ion, and the sa me goes for classica l

Greek cities suc h as Athens, Spart a, Corinth, or Syr acuse, although m any prefer to

1. Teemu Ruskola Le gal Orientalis m: China, the United S tates and Modern Law (Ha rvard University

Press, Ca mbridge (Mas s), 2013) 1.

* QC, OMNZ, P rofessor, Victor ia Universit y of Welling ton. My tha nks to the ex ternal re viewer for

very helpful comments .

70 [Vol 30, 2023]70 [Vol 30, 2023]

use the Greek word polis in thi s context; t here is like wise no doubt t hat ancient

Egypt, whe ther Old, Midd le, or New Kingdom , and Ptole maic Egyp t, was a “st ate”,

as were Assy ria or Achaemen ian, Pa rth ian and Sa ssanid P ersia; nor, swi tching t o

easter n Asia, certa inly Han and T’a ng China were stat es,2,3 and so were al l the later

Chinese i mperial entit ies. The issue gets more d icult the fu rther back in an tiquity

the inqui ry is pursued. Where were t he first states? What is it t hat makes, say, the

city-stat es of Sumer, states and t heir predecessors not? At what poi nt did Rome, or

Athens, become a s tate? These questions, a fter a long period in wh ich the question

does not seem to have be en perceived as very inte resting, are b eing debated afre sh.

Here are I am conc erned with “the P acific”, before the first ar rivals of Europ ean

navigat ors in the 16th–18th c enturies. It may seem s elf-evident what “the P acific” is,

and it is cer tain ly the case t hat “Pacific histor y” has long been a flou rishi ng field;

moreover, law facult ies are follow ing suit , and some are n ow oering cour ses in

Pacific Leg al Stud ies, one of which I te ach, showin g the expa nsion of “the Pac ific”

as a discipl inar y field. In fact , the bounda ries of the P acific are a nyth ing but

obvious, espe cially o n its wester n rim, where t he Pacific a nd Indonesian worl ds

interm ingle in a ver y untidy wa y. Teachers of courses in P acific his tory st ruggle

to draw mea ning ful bound ary li nes around t heir subjec t, both hi storica lly and

geograph ically. Histor ians work from docu ments, but in the Paci fic, the materia ls of

histor y often turn out t o be less written t exts than a rchaeological ev idence and the

histor y embedded in tradit ional narrati ves. The latter can eit her be located in oral

narrat ives collect ed at the present day, or mig ht be recorded in w ritin g by indigenous

authors or by Eu ropeans b efore or after t he advent of colonia lism. Suc h sources,

especia lly archa eological m ateria l and lin guistics , fail to t idily d ivide bet ween

Oceani a and isla nd Southeas t Asia, cer tain ceramic st yles, language fam ilies, a nd

genetic evidence p ertai ning t o both zones. Even t o the east , where the A merican

continents s eem to mark a cle ar bounda ry to t he Pacific world, cer tai n cultigen s

are found in bot h regions , most famousl y the sweet pot ato (ku mara) k nown even

in Aotear oa, practical ly on the other side of the glob e from its Andean homel ands.

One option mig ht be to replace “ the Pacific’ by a n arguab ly more meani ngfu l

geograph ical conception, for exam ple, Austronesia, t hat part of the globe s ettled by

speakers of Au stronesian lan guages who originat ed from Taiwan and j ourneyed by

2 For an introduction t o the his tory of Ha n China , see Mark E dward Lew is e Early Chinese

Empires: Qin a nd Han (Belk nap Press o f Harva rd Univers ity Pres s, Cambri dge (Mass), 20 07).

Lewis ch aracteri ses Han Chin a as a “state orga nized for war”, at 30 –50.

3 Mark Edw ard Lewis Ch ina’s Cosmopolita n Empire: e T’ang Dyna sty (Belkna p Press of Har vard

Universit y Press, Cam bridge (Mass), 201 2).