The Law of the Splintered Paddle

Aloha from Oahu! This week's post is coming to you from the middle of the Pacific; I'm writing this while looking at the Mokulua Islands of off Kailua.

As befits such a post, I want to talk a little bit about the Hawaiian legal tradition; in particular "The Law of the Splintered Paddle." I'll be a bit more reporter than analyst today, but it's a fascinating story worth the telling. And now, "The Law of the Splintered Paddle."

While fighting in Puna in the late 1700's, King Kamehameha got his foot stuck in a reef and one of the fisherman he was pursuing struck him over the head with an oar, splintering it.

Later, the same fisherman was brought before the King, but rather than have him killed, Kamehameha purportedly said "Let every man, woman, and child lie by the roadside in safety." The fisherman had only been defending himself, as any man would be expected to do, and to punish him would therefore be unjust. This precept, however, did not originate with Kamehameha. Rather, it is an ancient Hawaiian tradition that boils down to this: political legitimacy depends on fair and humane treatment of one's people. Over the centuries, story after story has accumulated of Hawaiian rulers who were deposed - and sometimes executed - because of their unfair or inhumane treatment of their subjects. The Law of the Splintered Paddle was in some ways the culmination of centuries of political and legal evolution.

What's interesting - well, what's also interesting - is that this particular legal precept has worked its way through centuries of Hawaiian rule, was first codified in 1797 under Kamehamhea, and survived the transition from independent Pacific Kingdom to annexed territory to state and currently exists in the Hawaii State Constitution (Article 9, Section 10, for interested parties).

Though ostensibly a legal rule - it's now a constitutional provision, after all - what's really happened is that an informal legal/political norm (treat your subjects well or its curtains) influenced legal-political decision making over centuries of political rule, was finally codified as "Let every man, woman, and child lie by the roadside in safety," (which seems to mean "don't do bad stuff and nothing bad will happen to you") and has now found a home in a modern constitution as a cross between a legal precept ("we will protect our citizens and their rights demand it") and a rule of statutory interpretation ("political and legal legitimacy depends on the respect of the health, safety, and rights of the citizens").

I don't know much (read: anything) about how the rule currently alters the legal landscape in the state of Hawaii. What's of note, I think, is that a long held socio-political tradition (not even a rule, narrowly understood, but an informal tradition) survived the centuries and multiple paradigm shifts to the political order and remains in effect today. I think it's an instructive example of how social norms evolve, endure, and shape not only our legal landscape, but our legal evolution.

Mahalo for reading, and once again: Aloha from Oahu! Be sure to come back over the next two weeks for a report from the Law and Society Annual Meeting and a reflection from the memorials at Pearl Harbor.