The Doctrine of Discovery - Part 5

More on Critical Theory and Professor Paul Moon's Critique

This fifth article in my series on the Doctrine of Discovery continues the discussion on critical theory and the development of the Doctrine,contains a critique of the development of the Doctrine and discusses the writings and views of Professor Paul Moon and his critique of the basis for the Doctrine. Professor Moon observes that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is limited and subject to debate. While some scholars and activists argue for its relevance, it is important to note that the historical evidence does not strongly support this claim. Professor Moon’s critique is examined in some detail.

A Critique of the Development of the Theory of the Doctrine of Discovery

Let us look at the three criteria of critical theory. The development of the Doctrine of Discovery explains a current social reality – a post-colonial society with a empowered class (the colonists and their heirs) and a disempowered class (the colonized or indigenous people). Thus the explanatory criterion is fulfilled.

The second criterion is the standards for criticism and the achievable goals for transforming the problems through praxis. As far as the Doctrine of Discovery is concerned what has been developed is a Universal Theory to explain colonial expansion, starting with the Catholic Church (a powerful entity), transitioning to a national appellate Court using colonial self-justification for its findings with a resulting repression and disempowerment of indigenous people.

The third element is to shift the viewpoint and some academics have been remarkably successful in this regard because the “Doctrine of Discovery” is itself the changed viewpoint – as a new and persuasive critique of and explanation for colonization and its perceived attendant evils.

It has been developed and refined with Professor Miller’s ten characteristics which may be individually valid but which do not form part of a universal recognized theory at International Law. Miller’s approach, aided by co-writers from colonized countries, has been to repeat and refresh earlier developed arguments, so that by repetition the theory gains traction to the point where it becomes mainstream.

In reality the Doctrine as imagined by Professor Miller is a restatement of power imbalances, casting a burden upon post-colonial societies to attempt to redress the imbalance caused by the operation of his theoretical doctrine.

In this respect the writing of Professor Miller and other adherents of the theoretical doctrine have helped to develop a critical consciousness. This, as I have outlined, involves critical reflection and moral rejection of social and political injustices. Certainly this is a laudable goal but it does not require an imagined “Doctrine” to support it.

To address social and political injustices requires a change to a social and political reality. This change has taken place by the imagining and creation of the Doctrine of Discovery which acts as a lynch-pin for the requirement of activitism to address the issues it identifies.

Finally there must be actual participation in social justice activism to transform any perceived opposition. As I have suggested, in some respect this is being fulfilled in New Zealand by activist elements of the judiciary.

The Critical Theory examination explains the basis for the argument that the Doctrine of Discovery is more a recent construct than an accepted principle of International Law.

Professor Paul Moon’s Analysis

Professor Paul Moon has examined the issue within the context of the settlement of New Zealand[1].

The first point to be made is that Professor Moon does not dismiss the Doctrine of Discovery as an historical artefact. Rather he points out that the basis for claims about the Doctrine of Discovery in New Zealand's colonization is primarily rooted in academic and popular literature. These claims have gained force over the last two decades, with a nexus emerging between historical and legal analyses of the Doctrine's purported role in British intervention in New Zealand from the eighteenth century onwards. The claims can be categorized into three general categories: historical, legal, and popular.

1. Historical Claims:

• Some academics argue that the Doctrine of Discovery determined, to some extent, Britain's intervention in New Zealand based on appeals to history.

• These claims suggest that the Doctrine provided a missing conceptual aspect of the colonial process in the country, offering an ideological basis for Britain's intervention.

• However, these claims are not well-supported by historical evidence, and many historians attribute British intervention in New Zealand to a complex web of individual motives rather than a specific doctrine.

2. Legal Claims:

• Legal scholars have been particularly inclined to advance the case for the Doctrine applying to Britain's intervention in New Zealand.

• These claims are often based on legal precedents and court decisions, such as the 1823 United States Supreme Court case of Johnson & Graham's Lessee v. McIntosh.

• However, the historical evidence does not fully support these claims, and there are significant discrepancies between the legal arguments and the actual history of British intervention in New Zealand.

3. Popular Claims:

• Claims about the Doctrine of Discovery's role in New Zealand's colonization have become more frequent in popular literature and public discourse.

• These claims often derive from the previous two categories of claims (historical and legal), but they may lack a strong evidentiary basis.

• The popularization of these claims has contributed to the perception that the Doctrine played a significant role in New Zealand's colonization, despite the lack of historical evidence supporting this.

In summary, the basis for claims about the Doctrine of Discovery in New Zealand's colonization primarily stems from academic and popular literature. However, the historical evidence does not strongly support these claims, and there are significant discrepancies between the claims and the actual history of British intervention in New Zealand.

Indeed Professor Moon observes that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is limited and subject to debate. ​ While some scholars and activists argue for its relevance, it is important to note that the historical evidence does not strongly support this claim. ​ However, proponents of this view point to a few key pieces of evidence:

1. Papal Bulls:

• The Doctrine of Discovery originated from a series of papal bulls issued by Pope Alexander VI in the late 15th century, particularly the bulls Inter caetera (1493) and Dudum siquidem (1493). ​

• These bulls granted European powers, particularly Spain and Portugal, the right to claim and colonize lands that were not inhabited by Christians.

• Proponents argue that these papal bulls laid the foundation for European colonization and expansion, including British colonial intervention in New Zealand. ​

2. British Legal Precedents:

• Some proponents of the Doctrine of Discovery argue that British legal precedents, such as the 1823 United States Supreme Court case of Johnson & Graham's Lessee v. McIntosh (actually and American case), provide support for its application to British colonial intervention in New Zealand. ​

• This case involved the recognition of the Doctrine of Discovery as a legal principle in the United States, which influenced subsequent legal decisions related to indigenous land rights. ​

• However, it is important to note that this case specifically pertained to the United States and its relationship with Native American tribes, and its applicability to British colonial intervention in New Zealand is questionable.

3. Interpretation of Historical Events:

• Some proponents interpret historical events in New Zealand's colonization through the lens of the Doctrine of Discovery. ​

• They argue that British actions, such as the signing of the Treaty of Waitangi in 1840, can be seen as a manifestation of the Doctrine's principles, particularly in terms of asserting British sovereignty and disregarding indigenous rights. ​

• However, this interpretation is contested, and alternative explanations for British actions in New Zealand, such as geopolitical and economic motivations, have been put forward. ​

It is important to note that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is not widely accepted among historians and legal scholars. ​ Many argue that the Doctrine's influence on British colonialism, particularly in New Zealand, is overstated and that other factors played a more significant role in shaping the course of colonization. ​