Jane Kelsey: Truth to Power — the critical legal academic as licensed subversive

This week, Emeritus Professor Jane Kelsey marked the end of more than four decades as one of Aotearoa’s leading critical legal intellectuals with a valedictory lecture (edited here for length) at the University of Auckland. 

Here Moana Maniapoto introduces her former law professor:

Jane Elizabeth Kelsey. Professor, academic and writer, activist and agitator, mentor and advisor, colleague and friend. After 42 years as a public intellectual, the self-confessed “subversive” is retiring from university life.

Despite hefty academic credentials and practice that’s earned international respect, one could never accuse Jane of being stuck in an ivory tower.

I used to watch my petite law professor on the frontline of the 1981 anti-apartheid protests. And then go on to provide legal advice to activists and gang members alike. I’ve been at her side as we choked on tear gas while filming the 2005 anti-WTO protests in Hong Kong.

If you’re teaching about justice, it made sense to walk the talk and hit the streets.

In her valedictory lecture this week, Jane explores the role of academics to act as the critics and conscience of society.

Her lecture is timely. It’s common now to see the work of academics attacked and politicised by those who seek to maintain the status quo, or to reclaim the privilege they’ve enjoyed — or simply to hunt for votes.

As we head into the next election, we can predict an increase in the fearmongering aimed at those with little or no imagination (or overactive ones) because Jane taught us all about “moral panic”.

It’s easy to feel overwhelmed, especially as Māori. There are so many fires to put out on so many fronts, and at times, the fire trucks are all over the place and not always in pristine shape.

Thank goodness for accomplices, allies and champions like Jane, a woman who has shared her life, time, and expertise with those of us who desperately needed it — and always in what Dr Moana Jackson would describe as a “mana-enhancing” manner.

 

As someone on her way out, I shudder at the daunting array of challenges that face today’s scholars and public intellectuals: the existential climate crisis, structural inequality and poverty, alienation and popular withdrawal from democracy, the spread of disinformation through private and unregulated digital monopolies, endemic violence to women including the right to control our own bodies.

Top of the challenges in Aotearoa is how to establish and maintain an authentic system of constitutional authority and law sourced in He Whakaputanga o te Rangatiratanga o Nu Tireni and Te Titiri o Waitangi. 

At the same time, we face challenges to simply be public intellectuals. Of course, academics contribute to the university’s mission in many different ways. Not all will embrace the role of the public intellectual, let alone as a critical academic. 

While that’s as it should be, universities have an obligation to ensure that academics know this is an integral and valued part of our work and to create conditions that empower those of us who choose to fulfil that role. 

And they must ensure our wellbeing as we do so. I was shocked last year when Shaun Hendy and Siouxsie Wiles asked for help after they came under attack for their superb leadership during the Covid-19 pandemic, and part of this university’s defence was that public commentary is not an “expected” part of an academic’s work.

This lecture takes its title from my contribution to a festschrift for William Twining, an early and quite moderate critical legal theorist of the 20th century. Twining saw the “licensed subversive’s” task as unshackling the law from its orthodoxies and liberating scholars and students in traditional law schools from the straitjacket of “liberal legalism” so as to achieve the potential for law and justice. Doing that required the radical reappraisal of law schools’ role, culture, and practices.

Twining’s rather retro notion of “stirring” was limited to questioning assumptions and generating debate in an academic context. I argued that critical scholarship needs to take our teaching and research beyond the cloisters of the lecture theatres, academic conferences and scholarly journals, and apply our skills, knowledge and power to advancing transformative justice. 

In other words, the interaction of theory and practice that acts as a catalyst for change, or praxis. Ranginui Walker, a treasured mentor, termed this “academic activism”, in which he was a past master.

Rangi, like many of us, battled the assumption that activism is antithetical to scholarship. I want to show here that the roles of analytical scholar, research-informed partisan and academic activist can be mutually reinforcing and fully consistent with the mission of a university, provided they are pursued with integrity and intellectual rigour. 

This lecture makes the case for the critical legal scholar as licensed subversive, where teaching, research and academic activism are inextricably intertwined. 

Conceptions of law

Twining’s re-visioning of the law and of law schools empowers legal scholars to take various paths and to advance profoundly different understandings of the nature and function of law. It also invites us to reflect self-consciously on the paths we choose. 

The standpoint from which we approach the law frames the kind of legal scholar we opt to be: it affects the objects of our inquiry, the questions we ask, the tools we select for analysis, the conclusions we reach, and the uses to which we put our arguments. That is equally true if we choose the path of traditional liberal legalism or of critical legal scholarship that speaks truth to power.

Our individual standpoints as legal academics are, in turn, shaped by multiple factors: our collective and individual identities and personal experiences; our exposure to formative ideas and influences; the historical junctures that shaped our ideas and roles; our personal privileges, opportunities and obstacles; role models (good and bad); supportive relationships and vilification; the pains and lessons of failure; and how we are treated by our discipline, our institution and our colleagues.

My own standpoint draws heavily on the Gramscian school of Marxist theory — a nuance lost on adversaries who toss the “M” word around as a form of invective. 

The Gramscian approach locates western law in a landscape that is materialist, historical, ideological, dynamic and contested. It’s a truism that common law is a historical construct of the capitalist state. Its materialist function maintains the primacy of private property rights, the bedrock of capitalist social relations. 

For contemporary Gramscians like myself, the class relations of capitalism are overlaid and underpinned by colonialism and imperialism and the intersectionality of patriarchy, class, heteronormality, eurocentric culture and Christian belief systems.

The common law system, and doctrines of family, taxation, contract, criminal or constitutional law, serves a hegemonic function to normalise and sustain unequal power relations. And while ideological conventions of “equality before the law”, “due process” and the “rule of law” mitigate the excesses of raw power, they also legitimise and institutionalise those inequalities. 

This standpoint views law as a social phenomenon, not an artefact. Law is embedded in social relations that are dynamic and contested. Law’s forums, whether the courts, parliament, international institutions, treaty negotiations or the Waitangi Tribunal, are places through which those privileged economic, social and political relations are maintained — and sites through which they are challenged.  

The push and pull of these contradictory forces leads to shifts over time, as we have seen in Aotearoa for almost two centuries. Yet, reforms to the colonial state’s law have always been adaptations to social and power relations that are defined by western capitalism, colonialism and patriarchy. 

We see those contradictions with the Treasury’s measurement of social wellbeing as it supervises the neoliberal economy, or rhetoric on Te Tiriti o Waitangi, gender inclusiveness and climate mitigation in free trade deals that are otherwise toxic for Māori rights, women and global warming. 

Most recently we see the paradox of Queens’ judges moving to assimilate tikanga Māori within colonial-derived common law as a “third law”. That has triggered robust debates about the risks and benefits of pragmatism and incrementalism, such as Annette Sykes’ 2020 Nin Thomas memorial lecture entitled “The myth of Tikanga in the Pākehā Law”. Dr Moana Jackson warned against incrementalism that can subvert the real transformation of state and law, and of the social, cultural and political relations in which they are embedded. 

Moana was always clear that those who hold power do not just give it away. Paradigmatic change occurs through resistance to unjust and oppressive conditions. Karl Polanyi’s epic The Great Transformation, written in the wake of the Great Depression, chronicled the double movement of unfettered free market capitalism and the resistance generated by the unsustainable poverty and inequality that it spawned. 

Entire continents in Africa, Latin America and Asia have been sites of struggle against imperialism, foreign occupation and state repression, demanding decolonisation, and still are sites of struggle where incrementalism has failed or the promise of transformation remains unfulfilled.

Indigenous peoples everywhere from Palestine to Aotearoa fight an enduring battle against occupation and invisibility and for the very right to exist. Everywhere and forever, women and LGBTQ fight for our rights to control our bodies and identities. 

I’m not so confident that we yet have equivalent movements to force action on the climate crisis. 

These convergent crises and their morbid symptoms are everywhere. To borrow a favourite Gramscian term, we are in an “interregnum”: “The old is dying, but the new is yet to be born.” 

Victories, or even progressive incrementalism, are not a linear process. What comes next may be socially progressive or repressive, liberating, anarchic or terminal. Because there are risks of going backwards, academic activism is essential to analyse the obstacles and strategise the ways forward. Academics, including legal scholars, have a crucial role to play in shaping this future, a role that extends beyond the contest of ideas to active engagement in various forms. 

Which brings me back to the importance of standpoint. What we write, teach and do can affect those outcomes, and the choices we make carry consequences and responsibilities. 

What shaped my own standpoint on the state and law? In my PhD thesis — which analysed the law’s role in mediating the contradiction between the fourth Labour government’s neoliberal project and its promise to honour the Treaty of Waitangi — I leaned heavily on Antonio Gramsci’s distinction between traditional intellectuals and organic intellectuals. 

Traditional intellectuals, including lawyers, judges and traditional academics, see themselves as independent from the power relations that they sustain and legitimise. Organic intellectuals emerge from and are embedded in various different social groups whose interests they advance. 

Where does that put intellectuals like myself who align ourselves with the interests of social groups to which we don’t belong? 

I am not an organic intellectual impelled by my own oppression in terms of class, indigeneity or race. I recall a sharp rebuke from my dad as we were digging my veggie garden in Mt Wellington after I described our family as middle class. 

My dad was a hugely intelligent kid from the Hokianga who left school at 14 at the start of the depression to become a barrow boy at Turners and Growers so he could rent a garage for his mum and himself after his parents separated in the 1930s. Dad ended up as Director of the Tourist Department. I never lived his class reality. But I did inherit his ethics and belief that public service meant just that. 

My parents were an unlikely couple. My mum’s forebears were land-grabbing settlers in Taranaki. In the Law and Society class on Parihaka, I would show a map with the family farm of Sentry Hill. 

Mum was independent and strong-minded. She spent four years overseas as a nurse in World War II, then accommodated to the role of wife and mother, and when Dad died at 68, she re-established her independent life for another 30 years. 

Like many in their generation, my parents saw education as key to our future and made sacrifices to ensure that could happen. That created opportunities and responsibilities, which were in turn shaped by the time. 

University was free in the 1970s. Feminist, anti-war, left-wing activism were everywhere on and off campus, and the role of law was highly politicised. The law school curriculum was not. I recall only one class on the Treaty of Waitangi in my entire legal education and that referred to the English text. Whaimutu Dewes is the only Māori law student I can remember. My final year was the time of Te Matakite and establishment of the Waitangi Tribunal. But I confess both largely passed me by. 

I was more aware of patriarchy. There were about 10 women in our year at Vic law school; most went on to exceptional careers. Several were active in abortion law reform. I remember joining them for drinks at Jonathan Hunt’s rooms in the House in 1975 to celebrate a small but important amendment to the anti-abortion Wall Bill. 

That was especially poignant for me. I owe an eternal debt to my much-loved only brother John, who arranged and paid for me to have an abortion in Melbourne through the Sisters Overseas Service in 1972 because it was illegal here. My life would have been very different if I’d become a single mother at 18. 

That experience necessarily shaped my feminism and understanding of law and patriarchy, as it has women in Latin America, Asia, Africa, Ireland, Aotearoa, and again in the USA. How, I wonder, will my colleagues respond when attempts to reimpose anti-abortion legislation inevitably re-surface here?

My student days also showed me how mentors influence academics’ lives. Unlike some friends, I thrived under Geoffrey Palmer’s Socratic method. He and others encouraged me into postgraduate study. In those days, most scholarships to study offshore were limited to men. My parents funded my BCL at Oxford, where most colleges were still segregated. I remember Dad sending me a clipping of the Bastion Point eviction, which remains such a profoundly raw image of injustice under colonial law. 

But the intellectual game changer was the M Phil in Criminology at Cambridge. That was a time of ferment in legal education, when critical legal academics challenged law’s perpetuation of social injustice. Marxist Colin Sumner and feminist Alison Young taught their courses using Stuart Hall’s Policing the Crisis, Carol Smart’s Women, Crime and Criminology, Alan Hunt’s writings on Marxism and Law, Foucault’s Discipline and Punish. Students and teachers learnt together. 

Some lecturers became my friends for life, and I stayed with them during my first sabbatical in 1984 as Margaret Thatcher provoked the miners strike in Wales, women set up the Greenham Common peace camp, and the Rogernomics revolution began here. 

Those teachers showed me that what, how, and why we teach makes a difference, individually and societally. 

In mid-1979, I was recruited to Auckland Law School to teach criminology, replacing Alan Nixon who had died. Nixon was a renowned prison abolitionist, but his criminology course advanced Hans Eysenck’s theories on eugenics and his book celebrated Operation Pygmalion at Arohata borstal. I have been reflecting on how far his work may have influenced the role of eugenics in state abuse of the disabled recently revealed to the Royal Commission.

Over the following decade, thinking and teaching on criminology were transformed by social, political and ideological change within Aotearoa, again through praxis. 

Moana Jackson’s revolutionary report He Whaipaanga Hou: Maori and the Justice System in 1987 followed a tamer consultation on access to justice that I coordinated in 1986 — Te Whainga i te Tika: In Search of Justice. Moana was often a guest lecturer to my awestruck students. Other lecturers then took over criminology and taught it from their own standpoints. Commentaries following Moana’s passing show how his work indelibly reshaped the debate on justice and law in Aotearoa. 

During the same era, David Williams, myself and later Ani Mikaere revolutionised the first year compulsory legal system course by exposing students to a raft of contemporary issues from contrasting theoretical perspectives, built on a firm grounding of history and Te Tiriti o Waitangi. Thirty years later, that still provides the foundations for the LAW121 course. 

As a Pākeha, I was fine teaching on colonisation; but teaching tikanga to a lecture hall of first years was never appropriate or comfortable. As a law school, we have moved timidly since then. I worry deeply that we are nowhere near prepared to implement the proposed Council for Legal Education remit to teach tikanga Māori across the curriculum in the future.

My first book, on the interface between Te Tiriti and the neoliberal revolution, was released in February 1990, the 150th anniversary of Te Tiriti. That began an enduring friendship with my ever-supportive publisher Bridget Williams, to whom I, other academics, and this country owe a massive debt of gratitude — although it was the ugliest book cover ever. A-list journals are harder to crack. There are now some high quality critical journals. Critics should never be shy to submit good quality articles to traditionalist publications — just don’t take rejections to heart.

My message here is that legal subversives can overcome disciplinary and institutional obstacles to build a successful academic career. Go to conferences, build relationships, establish a reputation and develop the confidence to put yourself out there. It doesn’t just happen; you have to work at it. 

And you can’t do it alone. Find good mentors, role models and allies. Above all, think strategically. As my mentees know, I operate on five-year plans: where do you want to be in five years time, what do you have to do and not do to get there, what are potential obstacles to overcome, and how to do this while retaining your integrity as a scholar and a public intellectual.  

Let me use two examples. The Rogernomics revolution of the 1980s used a blitzkrieg strategy to burn off the academics, economists and journalists they knew would challenge them. Initially, there was a vibrant academic response. But the Rogernomes invested heavily in partisan thinktanks like the Business Roundtable and Centre for Independent Studies, backed by the National Business Review. 

There was no equivalent support base for the critics. After a decade, our numbers dwindled. Some, like economist Brian Easton, paid a high price career-wise. Others, such as Susan St John, remained a stalwart academic champion for social justice, but was never made professor. Bruce Jesson’s untimely death robbed us of our pre-eminent critical journalist, and a part-time lecturer in politics. 

By the early 1990s, the cheerleaders of neoliberalism were touting New Zealand as a model for the world. My rejoinder, The New Zealand Experiment: A world model for structural adjustment? was birthed in 1995 by BWB, along with Auckland University Press, republished by Pluto Press London, and translated into Japanese. 

For some years, I travelled the international circuit — World Bank and ADB, Canada, Brazil, Mongolia, Latvia, Japan, Iceland — as an antidote to Ruth Richardson, Roger Douglas, and some lesser lights, speaking to policymakers and politicians, international organisations, media, and academic conferences. Most of that was pro bono. 

Without this outreach, my research would have stagnated on New Zealanders’ bookshelves. But this kind of policy research and advocacy was a hard sell to a traditionalist law school as legitimate legal scholarship, and was of course pilloried by the National Business Review.

I began by talking about praxis — how teaching and research are enriched by, and can have real impact, because of the third dimension — academic activism. That dynamic also necessarily shapes the person who is the academic.

My first major project as a criminologist was a report on moral panics over gangs that involved field research with the Black Power. Then there was a Fight-back Manual for people defending themselves in court, starring Moana Maniapoto’s graphics. That built on work that David Williams, Tim McBride and I did for Waitangi defendants and the Springbok tour, organising self-defence training sessions, giving evidence and holding peoples’ hands as McKenzie Friends, as well as defending ourselves. 

David and I were fortunate that university leaders, including the Dean, defended our actions and our convictions in 1981, so long as our core academic responsibilities didn’t suffer. Reflecting on the university’s response to Shaun and Siouxsie, would it do the same today?

On the human rights front, I led an investigation for the International Commission of Jurists into internal security detentions in Singapore in 1986 and for the Asian Human Rights Commission on vigilante killings in the Philippines under President Aquino in 1988. But human rights work can involve difficult choices; I said no to joining the Gaza Freedom Flottilla because being deported would have stopped me travelling to do other work offshore. 

Of course, none of this satisfied the traditional markers of legal scholarship and excellence. Despite that, my colleagues continue such commitments, working with refugees, exploited workers, women living with intimate partner violence — Anna Hood is currently in New York with the New Zealand delegation as liaison with civil society in the nuclear disarmament treaty negotiations. Ironically, PBRF gives these contributions more recognition than the university does internally.

Above all, academic activism in Aoteraroa must be informed by Te Tiriti. I owe my tutelage to remarkable people who challenged my racism and responsibilities as Pākehā, held me accountable when I screwed up, and trusted me enough to come back stronger and more useful. 

Oliver Sutherland recounts a meeting in the 1970s after he presented a damning exposé on racism in the courts only to be challenged by Will Illolahia, a Polynesian Panther, that “racism is your problem, not our problem, what are you going to do about it?” Ripeka Evans issued a similar challenge to me in 1980, which led me to join Oliver and other Pākehā in the Auckland Committee on Racism and Discrimination. 

At that time, ACORD was documenting abuses of Māori and Pasifika children in the state’s social welfare homes. It took 40 years for that evidence to be recognised in the Royal Commission as state and church-condoned torture. Isn’t that activist research part of our public responsibility?

I worry that today’s Tiriti scholars and students, Māori and Pākehā, are barely aware of the activism that secured the incremental gains that have been made — Te Matakite and Waitangi Day protests, the occupation and reoccupation of Takaparawhau (Bastion Point), Raglan and Awhitu, He Taua, Nganeko Minhinnick’s Planning Tribunal cases, Māori students occupying the Vice-Chancellor’s garage . . . and so on. 

At the same time, the real education on Te Tiriti and decolonisation was happening outside the university and law schools. Much of it came from Māori liberation theologists in Te Rūnanga Whakawhanaunga i Nga Hāhi o Aotearoa, the Māori Council of Churches. 

Methodist church leaders Joy and Rua Rakena, who became my second mum and dad, and Catholic Rob Cooper from Ngāti Hine, ran social analysis workshops based on Paulo Freire’s Pedagogy of the Oppressed for the then young Māori radicals — today’s kaumātua. 

Te Rūnanga spearheaded the Don’t Vote campaign in 1990 — the 150th anniversary of Te Tiriti o Waitangi. Their TV ads said: “This year, the Māori Council of Churches says ‘Don’t Vote’, sign the Te Tino Rangatiratanga register instead.” My role was to steer that TV ad through a rather stunned Advertising Standards Authority. 

Several younger Māori activists in that campaign took the Tino Rangatiratanga kaupapa into the leadership of political parties; others continue to work for constitutional transformation outside the parliamentary arena. 

But where are those churches in today’s struggle for social and Tiriti justice and why aren’t they leading the rebuttal to the reactionary evangelicals and conspiracy theorists? 

There’s another academic activism limb to this story. Joy, Rua and Rob were the rangatira for Kia Mohio Kia Marama Trust. In the mid-1980s, this bicultural trust of mainly women provided Māori across the motu with Tiriti-based analysis of Labour’s neoliberal policies on corporatisation and privatisation, fisheries, devolution, local government and resource management reforms, and produced a history book series Kia Mataara that’s recently been rediscovered now it’s online. 

Moana Maniapoto drew the cartoons, Barbara Menzies did the historical research, I provided the policy analysis, the rest of the trust provided oversight, Rob’s partner Judy was treasurer, and Rua did the dishes. 

Over four years, we mailed out bi-monthly analyses to hundreds of Māori networks, sometimes photocopied on the sly by Pat Marshall in the law school’s copy room. My academic research reached the right people in the right way — but was hardly a basis for promotion.

Kia Mohio Kia Marama had its origins in the law school. When I took over the law and society elective in 1983, the focus moved from behavioural studies to questions of apartheid, Te Tiriti, human rights and gender. Moana Maniapoto, renowned musician, documentary maker, and distinguished alumni of this university, submitted as her course assessment cartoon essays on Bastion Point, the killing of Daniel Houpapa and Paul Chase, the He Taua incident. David Williams was complicit as the assessor. It would never have survived today’s turn-it-in and I wonder how equally creative and culturally appropriate assessment will be enabled under the new tikanga curriculum.

It was also Te Rūnanga, the Māori Council of Churches, that sent me to the first ever meeting of activists and researchers in Brussels during the Uruguay round of the General Agreement on Tariffs and Trade, where we discovered that international trade rules were being redesigned to better serve the interests of capital and embed the neoliberalisation of services and private intellectual property rights.  

Those relationships among trade unions, NGOs, social movements, think tanks and academics formed the backbone of the later anti-globalisation movement. Over decades we developed an effective counter-strategy where those of us with technical skills analysed arcane legal texts and activists connected that to reality on the ground. 

Similar collaborations with Māori, unions, doctors, actors and musicians, librarians, anti-mining and climate activists, and ordinary citizens, ran through the six years’ opposition to the TPPA. Rather too successfully for some. Appealing to an inverted notion of academic freedom, Fran O’Sullivan urged the Vice-Chancellor to drum up other academics to counter my influence. 

These interventions have made a tangible difference, contributing to the collapse of several controversial negotiations, to states’ decisions not to adopt agreements, and to this government’s rejection of investor-state dispute settlement in future trade and investment treaties. While pro bono work for governments from the Global South can make a difference, it can also raise ethical quandaries. Do you work with a government that’s a known human rights abuser, but whose role is pivotal to the fate of a negotiation? 

The Waitangi Tribunal claim on the TPPA, led by wahine toa Annette Sykes, was a similar alliance: mātauranga Māori from Māori experts, constitutional analysis from Moana Jackson, legal analysis of the TPPA and a Tiriti-based critique of Tribunal jurisprudence from me. 

After five hard years, MFAT agreed at mediation to support an independent Māori entity, Ngā Toki Whakarururanga, and ensure it could exercise effective influence over trade policy decisions and negotiations. 

We constantly debate whether that’s just more incrementalism or is there potential for a truly transformative outcome, given the Crown retains total control. 

Tomorrow we are having an inter-generational kōrerō with young-er people on the challenges of talking truth to power in the next 40 years, in the four main areas of my work — Te Tiriti and decolonisation, public policy, globalisation, and universities and unions. A kind of passing of the baton to them.  

I look forward to the optimism of youth as they shape their future. 

This version of Professor Jane Kelsey’s valedictory lecture delivered on July 28 at the Owen G Glenn Building, University of Auckland, has been edited for length.