State Formation And Law In The Pre-European Pacific

• Author: Richard Boast
• Position: QC, OMNZ, Professor, Victoria University of Wellington. My thanks to the external reviewer for very helpful comments
• Pages: 69-95

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 interesting and exciting developments in the study of Pacific

archaeology and Pacific history is the growing literature on state formation in the

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

Hawai‘i, both of which were arguably “archaic” states before European arrival in the

Pacific, but there may be other examples of early state formation in Oceania, perhaps

in Micronesia. Some legal theorists have claimed, inaccurately, that “law” is a product

of “states”. Whether that is, or is not the case, where does this argument now lie once

it is accepted that there actually were states in the ancient Pacific in any case? What

remains of the “state”/”law” nexus given the growing scholarly acceptance that there

were pre-European states in Oceania? is article seeks in part, but only in part, to

connect the new literature regarding state formation to wider debates in jurisprudence

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

has observed, “[i]t is exceedingly dicult, if not impossible, for us to think of politics

outside the framework of states, and of states outside of law”.1 It will be argued below,

however, there is no necessary connection: it is quite possible to speak meaningfully 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 this context; there is likewise no doubt that ancient

Egypt, whether Old, Middle, or New Kingdom, and Ptolemaic Egypt, was a “state”,

as were Assyria or Achaemenian, Parthian and Sassanid Persia; nor, switching to

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 certainly the case t hat “Pacific history” has long been a flourishing field;

moreover, law faculties are following suit, and some are now oering courses in

Pacific Legal Studies, one of which I teach, showing the expansion of “the Pacific”

as a disciplinary field. In fact, the boundaries of the Pacific are anything but

obvious, especially on its western rim, where the Pacific and Indonesian worlds

intermingle in a very untidy way. Teachers of courses in Pacific history struggle

to draw meaningful boundary lines around their subject, both historically 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 Europeans before or after the advent of colonialism. Such sources,

especially archaeological material and linguistics, fail to tidily divide between

Oceania and island Southeast Asia, cer tain ceramic st yles, language families, and

genetic evidence pertaining to both zones. Even to the east, where the American

continents seem to mark a clear boundary to the Pacific world, certain cultigens

are found in both regions, most famously the sweet potato (kumara) known even

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

One option might be to replace “the Pacific’ by an arguably more meaningful

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 to the history of Han China, see Mark Edward Lew is e Early Chinese

Empires: Qin and Han (Belknap Press of Harvard University Press, Cambridge (Mass), 2007).

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).