A 'Voice' for Indigenous Australians (Part 3): Assessing the Objections

I'm on vacation over the Christmas break. But that doesn't mean the blogging has to stop. I've queued up a four-part series on the contemporary debate in Australia over an Indigenous 'Voice' to parliament. You can find Part One here and Part Two here. Needless to say, the usual caveat applies: the views expressed this paper are the author’s own and do not reflect the views or positions of the Commonwealth Government or its agencies. 

“No such country”

It is worth considering the philosophical objections raised by those who oppose an indigenous Voice to parliament. In addition to the Government statements included in Part One (here), today's blog will look at a research brief from the Institute for Public Affairs (‘IPA’), a right-libertarian thinktank with considerable influence over ministers. 

The IPA acknowledged that every citizen had “the [right] to participate in the democratic process” but claims that this right is exhausted by the principle of “one person, one vote”. Under this view, the constitution establishes that all citizens are entitled to equal rights, with no special privileges granted to any group of individuals. The IPA argues that equality means “being blind to immaterial differences such as race, ethnicity and skin colour” and that using race as a qualification for the right to political participation is divisive and undemocratic. A separate press release criticises the proposal for an indigenous Voice as ‘racial identity politics’ that treats human beings as members of a group and not as individuals. This is pretty standard right-libertarian language. 

While the IPA  invokes Aristotle, the liberal democracy it portrays does not actualy exist in Australia. The nation has no Bill of Rights, either in the constitution or in statute. Very limited constitutional guarantees (e.g. to trial by jury, and freedom of religion) have been watered-down by the High Court; even the right to “one person, one vote” does not enjoy constitutional protection. Indeed, had indigenous peoples already possessed meaningful civil and political rights, the interventionist policies adopted by Canberra over the course of the 20th century may never have occurred. Indeed, universal and compulsory indigenous electoral enrolment (i.e. equal treatment with other Australian voters) was only legislated in 1983. Conservative opposition to special representation rights on the basis of formal equality, therefore, is not a claim based in Australian law but in a particular (narrow and pedantic) reading of classical liberal texts. And as we saw last week, it is a reading that is many decades out of date with contemporary philosophy and the reality of multicultural societies.

Other Objections

We should also address some other criticisms of differential group rights. The egalitarian Brian Barry (and other left-leaning critics of ‘identity politics’) have argued that the ‘politics of difference’ damages efforts to redistribute social resources to assist the disadvantaged. The crude version argues that the majority culture will not vote for higher taxes to support minorities that are perceived to be privileged in some way. This is the lazy, zero-sum understanding of politics I have previously referred to as the identarian interpretation of identity politics. 

A more sophisticated version is attributed to Robert Putnam, who has studied the extent to which diversity undermines social capital and solidarity. But Putnam’s research is often misrepresented. It’s not that perceptions of unfairness increase in-group selfishness; rather, they decrease all pro-social behaviour including towards in-group members. While this offers support for Barry’s hypothesis (that differential policies will lower pro-social outcomes for everyone), Putnam's research also demonstratedthat income inequality is equally and independently responsible for eroding social capital. As I have written elsewhere, it's unclear to me why egalitarians who work to establish solidarity across class lines in order to overcome these dissociative tendencies would or should fail to advocate solidarity across other forms of difference. 

Rights for whose benefit?

Lastly, we need to examine the question of whether special representation rights might ultimately harm the interests of indigenous individuals. The classic liberal articulation of this case is to assess whether a cultural group seeks special treatment to impose internal rules or practices on members of its community that would not be tolerated by (or in common law parlance, be ‘repugnant to’) the majority culture. While strong communitarians or relativists may not ask this question, liberal philosophers draw the line of tolerance at communities that are themselves liberal and rights-upholding. I consider this a fair interpretration, and it's an issue with some relevance to the Australian context: the intervention was initially justified as necessary to prevent child abuse, and increasing school attendance and preventing domestic violence remain part of its public purpose. 

While special representation rights and claims for internal autonomy and control are conceptually distinct, they likely overlap in practice. A Voice to parliament that successfully opposed the Northern Territory intervention, argued for recognition of indigenous law in kinship matters, or indigenous language schooling in education policy might (hypothetically) lead to unintended consequences for indigenous families and children. But the key question here is not whether policies of differential representation would prevent any and all harm - clearly the status quo fails that test as well. Instead, it's whether policies of differential representation ensure that all the individuals in a community have their legitimate democratic interests and human rights respected by their political representatives. 

Liberalism does not require that any system of differential representation for indigenous Australia prevent all potential harms: only that itself be liberal and democratic. Any putative inconsistencies between differential representation for national minorities and liberal values can only be resolved on a case-by-case basis. Australian common law has in fact accommodated traditional indigenous punishment, marriage, and property customs for decades. Multiculturalism is always a question of reasonable accommodation and risk: the Australian problem is that there has been no accommodation and no mechanisms by which indigenous citizens could bargain with the majority culture. That needs to change. 

Next week, in Part 4 (the final part), we'll look at an alternative philosophical system based on egalitarian principles of justice. 

A 'Voice' for Indigenous Australians (Part 2): Getting the philosophy right

I'm on vacation over the Christmas break. But that doesn't mean the blogging has to stop. I've queued up a four-part series on the contemporary debate in Australia over an Indigenous 'Voice' to parliament. You can find Part One here. Needless to say, the usual caveat applies: the views expressed this paper are the author’s own and do not reflect the views or positions of the Commonwealth Government or its agencies. 

Understanding rights claims

While there may be no explicit ‘right to democracy’ at international law, there is a human right to political participation and representation. The Universal Declaration and Article 25(b) of the ICCPR both promise periodic and genuine elections on the basis of ‘universal and equal suffrage’. Article 25(a) of the ICCPR adds the right to ‘take part in the conduct of public affairs’. The UN Committee on Human Right’s General Comment 25 explains that political participation is a broad concept, which covers all exercise of political power and the formulation of policy, and that the principle of one person, one vote ‘must’ apply. Where participation takes place through elected representatives, those representatives must in fact exercise meaningful authority.

The more recent UN Declaration on the Rights of Indigenous Peoples, which does not have the status of binding international law, establishes in Articles 18 & 19 that:

“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures… 
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. ”

The Declaration arguably establishes a customary interpretation of what the existing right to political participation and representation means for indigenous peoples. Australia (belatedly) supported the Declaration in 2009, but only the basis that it was non-binding and did not affect Australian law. It’s likely the present administration maintains the strong reservations expressed about the Declaration during Howard era, in particular opposition to its language on indigenous self-determination and representation. 

Liberal Multiculturalism

But why might indigenous groups be entitled to differential treatment (or differential interpretation of their rights) in the exercise of political participation? Liberal philosopher Will Kymlicka has sought an answer through forging what he has labelled a liberal ‘accommodation’ of group rights, called either ‘liberal nationalism’ (when applied to the majority culture), or ‘liberal multiculturalism’ (when applied to a minority). In Kymlicka’s compromise, liberal states should not promote a common idea of the ‘good life’ but may establish a ‘thin’ identity of shared citizenship which brings people together into an imagined community of co-operators. By doing so, a population of individuals becomes a people, sharing a history, defined territory, common language and working joint institutions regardless of their ethnic origin, religious belief or concept of the ‘good life’. This is a fair portrayal of civic nationalism in settler states such as Australia and the United States. 

In Kymlicka’s early work on multiculturalism, he defined a nation as a “historical community, more or less institutionally complete, occupying a given territory or homeland, [and] sharing a distinct language or culture”. Many states, he argued, were multinational states, consisting of more than one nation brought together by federalism, conquest or settlement. Where the power or status between them is unequal, nations that lack political or institutional influence are national minorities. Unlike immigrants, for example, national minorities have defined territories, laws and institutions, and (except by explicit agreement or concession) have not consented to be governed by the majority culture.

Kymlicka’s definition has in mind the First Nations of North America and other native peoples, and also no doubt includes indigenous Australians. Indeed, the recognition of the continuing existence of indigenous law and customs by the High Court in Mabo neatly follows Kymlicka’s pre-requisites for recognising indigenous Australians as a national minority. He argues that among the rights that national minorities may claim are special representation rights, when there exist systematic disadvantage or barriers in the political process which makes it impossible for a group’s views to be effectively represented. It’s clear that Kymlicka’s liberal multiculturalism, and its accommodation of the group interests of minorities, underlies the UN Declaration on the Rights of Indigenous Peoples and other recent sectoral human rights conventions.

Making the Case: The Social Thesis

There are two basic lines of reasoning leading to this compromise, which I shall label the communitarian and individual rights approach. But both rest on the same logic. In a liberal society, all individuals are of course free to choose the way in which they manifest their language, culture or religion. The continued existence of any language, culture or religion, however, presents a social dilemma: individuals are tempted to defect from the group (for example, by practising a higher-status or more advantageous culture). But because outcomes for everyone are interdependent, sustained defection will mean those that choose to stay can no longer meaningfully practice their culture.

All cultures have internal rules to manage the problem of defection and preserve group identity; from the perspective of evolutionary sociology, these norms of punishment and rules of membership are what define a culture. From a communitarian, the culture or group has a collective interest in individuals working together to be represented as a group because otherwise its ongoing survival as a group is at risk.

But this outcome can also be justified from the perspective of individuals rights. We can compare the right to political participation with other rights that are sometimes claimed to embody communitarian ends. Article 27 of the ICCPR, for example, grants the right to minorities to enjoy their culture, practise their religion and use their own language, in community with other members of the group. The Lovelace case before the UN Human Rights Committee  established that while the right to culture is an individual claim, the existence of the community is a necessary prerequisite for that right to be meaningfully exercised.

While often legally expressed as simple prohibitions on state interference, almost all liberal rights only make sense as social goals when the individual is placed in the context of a community.  An individual in a state of nature has no need or capacity assert their right to life or freedom from torture, much less their right to education, healthcare or a decent standard of living. An individual in society does have a need and possesses an institutional capacity to assert such claims.

As Amy Guttman eloquently puts it, 
“Civil equality . . . is a right that can only be held jointly by individuals, it cannot be held by any individual in isolation. The right pre-supposes the inclusion of individuals in groups, but the intended beneficiary and ultimate claimant is the individual, not the group.” 

Kymlicka calls this the ‘social thesis’ , the idea that both rights and free choice presume (and in fact require) a social environment and certain kinds of institutions. Human rights may not be group rights per se, but are held jointly by individuals and for their collective benefit. The right to free association, which is an essential component of the right to political participation, explicitly provides that individuals may belong to multiple, overlapping communities – not just the society of the whole. For instance, the community through which they claim social support or organise family relations need not be the same community through which they practice their language and religion. 

Representation as a collective right

My central argument is therefore this: like other rights, the right to political representation is exercised by individuals in the context of their political community. And so assessing whether or not an individual’s right to political participation is satisfied requires more than asserting they have equal voting rights. The right to political representation is not a group right as such. But it does presume the individual is represented as part of a community of common interest. It requires assessing whether, in the context in which a vote is cast, it secures meaningful representation of the interests of that individual and community.

This is an accepted liberal principle. We don’t accept, for example, that electoral boundaries can be drawn so that voters’ interests are excessively diluted, nor do we accept electoral divisions that weight some region’s votes more than others. In Australia, the Electoral Act requires that federal electorates form a ‘community of interest’ that do not vary by size by more than 10 per cent from the mean (amusingly, the High Court has ruled there is no constitutional protection against unequal representation in state elections). 

As the UNHRC put it in General Comment 25:
“The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.”

In sum, an individual’s right to political participation is violated when electoral systems do not ensure them adequate representation in the context of their community. For indigenous Australians, the relevant political community may be one defined by the indigeneity, traditions and customs of its members. 

The question now remains to apply the law to facts. Given that indigenous Australians are prima facie a national minority, we must ascertain whether they’re adequately represented and what special measures might be necessary to secure their political rights. There are presently four indigenous members among Australia’s 226 federal parliamentarians, a reasonable proportion given that they constitute less than three per cent of the total population. But we should acknowledge that these four represent half of the total indigenous parliamentarians in the nation’s history, and three of them have only served since 2016. 

Unlike First Nations in North America, who enjoy devolved powers and are relatively territorially concentrated, indigenous Australians face particular difficulties in obtaining political representation of their interests. There are more than 120 distinct language groups spread across the continent; most indigenous individuals live in cities and rural centres, and are largely assimilated into Anglo-Australian culture. Areas with majority indigenous populations (mainly in the Northern Territory) are often geographically remote and economically marginal. Thus, while the Government is technically correct to state that individual indigenous Australians have the equal right to elect their representatives on the basis of ‘one person, one vote’, there are structural barriers which prevent them from obtaining effective representation of their interests as a community. 

There is a case in law, history and circumstance that the interests of indigenous Australians as a national minority are not being adequately collectively represented. Special representation rights in federal parliament, whether in the form of a Voice or something else, are therefore necessary to correct for these differential outcomes. 

Next week, in Part 3, we'll look at the Government's case and other objections to an indigenous "Voice", and assess whether they stack up. 

The Politics of Solidarity

This blog is a follow-up to my earlier rumination on "Identity Politics". In that piece, I expressed comfort with identity politics as a progressive practice, but some dissatisfaction with its theoretical underpinnings (putting me squarely in line with most of the socialist left). This piece offers a deeper dive into the underpinnings of the politics of solidarity, coming to stronger and firmer conclusions. 

Radicalism, then and now

My book, "Politics for the New Dark Age" presents in its early chapters an overview of liberalism using as a device the slogan of (parts of) the French Revolution (and later the French Republic): liberty, equality, and fraternity. Although right-libertarians may disagree, it is wholly uncontroversial amongst serious liberal philosphers (and many Marxist ones) than equality and liberty are twinned objectives. We cannot rigorously justify liberty without accepting an original position of equality, and we (non-authoritarian socialists) also accept that the ethical purpose of equality is to maximise individual liberty. The core blindspot of right-libertarianism is failing to recognise that under conditions of inequality some will always be more free than others. 

Fraternity, then as now, is a trickier propostion. In Chapter III, I argue for the need for the left to reclaim fraternity, and since the word and some of the concepts underlying it are potentially problematic, I will instead substitute "solidarity" in this blog to refer to the progressive version of the concept. In the book, I write that solidarity is "the sense of belonging we can find in sharing values with and trust in our fellow citizens", and argue that this trust finds expression through the laws, norms and institutions which bind a society together. Trust, as readers will know, is an important resource to solve collective action problems and we will return to it later.

Liberal philosophy, in attempting to reconcile the twin goals of liberty and equality, has on the main settled on equality of opportunity as its guiding principle. The egalitarianism of even left-liberals is what Elisabeth Anderson calls "luck egalitarianism": it attempts to correct for some forms of inequality, but only arbitrary differences in personal circumstance and not differences cause by 'choice'. If original conditions are equal and equality of opportunity exists, then social outcomes, even if unequal, are to be considered 'just'. What all liberals, from both the 'egalitarian' and 'libertarian' ends of the spectrum, share is an emphasis on methodological individualism and agency. In other words, once just rules, norms and institutions are in place, society should be blind in practice as well as theory to the consequences of individual choice. 

Needless to say, this is an incomplete theory of justice: the fairness of outcomes matters to individual liberty and happiness, and some material needs (housing, healthcare, food, clean air & water) are so important to our wellbeing that they have the status of fundamental right. Even liberals like Will Kymlicka have been forced to admit that the current approach is counterproductive, forcing the disadvantaged to engage in what he calls 'shameful revelation' in order to qualify for social sympathy (which contributes to the construction of a hierarchy of moral worth).  Yet Kymlicka's own support for multiculturalism is justified similarly: if a social group can demonstrate that the impartial application of law leads to an injustice in fact, then the law should craft special assistance or exemptions for members of that group.

Charles Taylor famously labels this 'the politics of difference' and the resulting hybridity between liberalism and identarian claims of culture leads to what I have called in the past the 'second form' of identity politics: adapting laws and institutions so that arbitrary differences such as race, gender and sexuality no longer systematically disadvantage individuals. It is dialectical middle ground between communitarians who hold that groups and cultures are ontologically prior to the individual; and liberals who seek to merely 'correct' for arbitrary differences in individual characteristics. The liberal fantasy is that everyone regardless of group membershio or disadvantaged status has a formal opportunity to 'rise to the top'; failing to question why we have a top or why people would want to be there in the first place. 

Socialism is liberalism plus structure

In a broad sense, the left (which I prefer to call socialist but which others may label differently) is liberalism plus structure. What I mean by that is we share with liberals a common foundation in humanism and much of the philosophy of the social contract. And to a point, we can also share their methodological individualism. Where we part ways, however, is by positing social structure as an intervening variable between individual choice and outcomes. To us, difference neutrality looks alot like taking sides in favour of the status quo. Feminists label the structure 'patriarchy', because it systematically differentiates between genders; I call it social and economic interdependence, because my focus is on how the nature of games creates collective action problems; anti-rascism activists similarly use the concept of systematic rascism. 

Iris Young provides a useful definition of structure: 

"Basic social structures consist [of] determinate social positions that people occupy which condition their opportunities and life chances. These life chances are constituted by the ways [social] positions are related to one another to create systemic constraints or opportunities that relate to one another . . . Structure[s] are constituted through the social organisation of labour and production, the organisation of desire and sexuality, the institutionalized rules of authority and subordination and the constitution of prestige. Structural social groups are relationally constituted, in the sense that one position in the social structure does not exist apart from differentiated relation to other positions."

Thus, as I write in Chapter VIII of my book, poverty only exists in relation to the standard of living of the rest of society (i.e. 'absolute' poverty is an arbitrary, albeit sometimes useful, category). Similarly, gender[s] does not exist objectively outside the social relations defined between them; and race is junk science but conveys powerful social advantages and disadvantages. Any individual's access to social goods in the context of these structures is distributed probabilistically, and so it is therefore analytically relevant to define groups by their collective advantage or disadvantage and to conduct activism on that basis - even if some individuals from a disadvantaged class have the opportunity to rise to the top. 

Laws, rules and institutions cannot be value-neutral because they are imbedded in deeper cultural and economic patterns. Laws, rules and institutions cannot produce just outcomes on their own because they are blind to these patterns or explicitly take them for granted (see: Gramsci). And as I have written before, people often experience a powerful backlash bias when these social relations are threatened. If individuals or groups need to claim disadvantage (or perjoratively: 'victimhood') in order to receive compensation for that disadvantage, the act of both claim-making and claim-granting merely re-enforces existing social patterns and fails to challenge the underlying base structure.

Critics of "identity politics" often fail to differentiate between the two sets of arguments. Challenging structural racism, the patriarchy, or the class structure of the economy is not a claim of victimhood and for special treatment: quite the opposite. It is an empowered attempt to change society so that structural inequality no longer exists. This is precisely why Marxists, who critique the class structure of society as being bad for the individual worker, were so often accused during the Cold War of being collectivists. And why critics of multiculturalism or feminism misinterpret claims for equality as attempts to secure special treatment: they are operating under complete different philosophical understandings. If structural inequality magically ceased to exist, we could all be some type of liberal. But it does, so we aren't. 

The Politics of Solidarity

As I write in Chapter IX, in a totally different context, "If the state is thought of only as a redistribution machine, we can blind ourselves to ways cooperative social institutions can prevent inequality from occurring in the first place. Better to stop inequality from growing than seek to cure it after it occurred." In that chapter I'm talking about the economy, but the principle applies equally to all forms of social hierarchy and structural difference. Redistribution does not generate social trust; in fact, it may be corrosive of it. Much better if we address our activism at the root causes of difference, recognising that formal equality of opportunity does not in and of itself generate egalitarian outcomes. So if right-wingers really don't like paying taxes or the recognising special group rights, then the only logical solution should be to join a union or cooperative, support feminism and the movement for black lives. 

And here we return at last to the concept of solidarity. If unequal and hierarchical structure is the problem, then the solution is solidarity that transcends that structure and undermines it. That's why sexism, rascism and other forms of discrimination, especially paternalistic versions thereof, have no place in any progressive movement. Solidarity means pursuing cooperative solutions to the problem of generating social trust, without which we cannot transform and prevent inegalitarian structural structures.  

Solidarity means trusting others in at least three important ways. First of all, it  requires working across group boundaries to build ties between social classes, rather than seeing politics as a battle for the scarce control of social resources (i.e. identarianism). Importantly, this acknowledges that deconstructing hierarchies will also be of benefit to those currently privileged by them. Secondly, it means trusting others' claims about the sources of their own disadvantage, and not expressing skeptical or paternalistic beliefs about the moral value of their claims. If an individual is unable to access their fundamental rights, the course of events leading them there are not relevant to the inquiry. Lastly, and most radically, it means trusting that if our fellow human beings are in need, that we should offer help, and not make judgements about their own capacity for or skill at autonomous decision-making.

Reading Kymlicka for fun and profit

One of the benefits of returning to university as what we term in Australia a "mature-age student" is having the time and opportunity to read work that was either unavailable back when I was an undergraduate or which a working person just doesn't have the time or energy to get through. In that context, I'd like to share some choice quotes I recently came across in Will Kymlicka'a "Contemporary Political Philosophy". In a section entitled "The Politics of Liberal Equality", Kymlicka unloads against the political failures of (non-socialist and non-Marxist) liberal left in terms that are both accurate and devastating. 

Kymlicka begins by positing the underlying radicalism of the egalitarians:

"The link between the philosophy of liberal equality and the politics of the welfare state is so strong that many people call liberal egalitarianism 'welfare state liberalism'. [But] Rawls argues that a [socialist*] democracy would be superior to the welfare state, not only in reducing the need for ex post redistribution, but also in preventing relations of domination and degradation within the division of labour. . . . Liberal egalitarians, therefore, should be concerned not only to redistribute income from the advantaged to the disadvantaged, but also to ensure that the advantaged do not have the power to define relations of dominance and servility in the workplace."

*The original term used by Rawls was 'property-owning democracy', but this is Orwellian. In A Theory of Justice, he defines a 'property-owning democracy' as aiming to "sharply reduce inequality in the underlying distribution of property and wealth". It's clear Rawls is describing something much closer to democratic socialism. 

"In short, liberal egalitarianism's [political] commitments have not kept pace with its theoretical commitments. [T]his has led to a 'bifurcation of liberalism', One stream clings to the traditional institutions of liberal practice, and exhorts people to lower their expectations of justice and freedom. The other stream reaffirms its principles, but [this]  . . .is increasingly matched by [its] disengagement from practical issues.. . . .This may help explain the 'surprisingly conservative' tenor of many of Rawls' and Dworkin's work. Faced with the New Right, liberal egalitarians have indeed been concerned to preserve what is left of the welfare state." 

Former Greek finance Minister Yanis Varoufakis (somewhat conspiratorially) also advances this view in a recent Jacobin interview. But, Kymlicka continues, this approach is ultimately counterproductive:

"Partly as a response to New Right critiques that the welfare state penalizes the hard-working and rewards indolence and irresponsibility, [liberals have] tried to emphasize that the welfare state can be made more choice-sensitive. [But] the liberal egalitarian emphasis on ambition-sensitivity, may have unintentionally reinforced the popular perception that the main problem with the welfare state that it coddles the irresponsible."

As a result, we get what is derogatively referred to by critics as the "oppression Olympics":

"[I]n order to overcome this distrust, the disavantaged must enage in . . . 'shameful revelation', - i.e. they have to prove they do indeed suffer from some involuntary disadvantage, whether in their natural talents or childhood upbringing. The inevitable result . . . is to erode, rather than strengthen, the bonds of solidarity and mutual concern between citizens. Elizabeth Anderson . . . argues that liberal egalitarianism's emphasis on distinguishing voluntary from involuntary inequality leads to a disrespectful pity towards the 'deserving poor', and paternalistic hectoring of the 'undeserving poor'."

Kymlicka advocates the same perspective as I do:

"So it might be part of the 'ethos' of a good citizen that we do not pry into the (ir)responsibility of others, but rather trust that they are trying to be as responsible for their own choices and demands as we are in ours.  Of course, this means we may be taken advantage of by some of our less scrupulous citizens. . . .[but] a scheme of justice that encourages everyone to view their co-citizens as putative cheats is not a promising basis for developing trust and solidarity."

Bingo. How much do you trust fellow citizens to make their own decisions? How much can you tolerate uncertainty about the behaviour of others? From these essentially psychological metrics, we find the core of the difference between right and left. 

Liberalism: Pluralism and Rights

Books are never finished, so much as released into the wild. To that end, I have a confession to make: Chapter VII of my book “Politics for the New Dark Age”,  titled “On Liberty”, is my least favourite. The purpose Chapter VII is to make an argument for the importance of so-called “First Generation” civil and political rights, which in Australia are much more poorly secured than people might think. It was (one of) the first bits I wrote, and I relied less on recent research than the Chapters that came after it. The final text is perfectly serviceable, but carries a number of weaknesses that I’d prefer to redress.

Oops, I accidently a positivist

In seeking to justify both the existence and specific content of human rights, I fell back on my legal training to offer a largely positivist account of rights. In other words, these are the rights that all people possess because there exist legal texts from a political authority stating that to be the case. Worse, because I was writing primarily for an Australian audience (who lack a domestic bill of rights of their own) and my own background is in international law, I fell back on treaties or agreements between states such as the twin Covenants and the Universal Declaration of Human Rights. This ‘legal universalism’ is an extremely weak, politically-contingent variant of positivism: we have these rights and not others because a certain subset of states negotiated these specific wordings in a particular historical and international context.

The problem with a positivist account of rights, of course, is that laws change when political circumstances change. National laws should be adaptions derived from universal ethics, not the other way around. While my account addresses historical preludes to the twentieth century legislative rights 'boom', these forerunners were themselves historically and culturally contingent. While I have no issue with belief systems that stake a claim to universality outside their original cultural context (I’m looking at you, Christianity and Buddhism), a positivist account can be challenged on the basis that the rights it promotes are culturally and temporally contingent and depend on the strength of the institutions that enforce them.

The best articulation I’ve seen of this political version of human rights is from Pablo Gilabert, who has posited that the political content of rights may perhaps be specified by the types of claims that are necessary in the context of the [threats and opportunities posed by] modern state, which is universal enough in 2017 to warrant philosophical consideration. But personally, I’m not convinced of the causality: modern states emerged subsequent to liberal, rights-centred philosophies, not the other way around. Rights and institutions co-evolved. 

Rights, natural or social?

So what grounding should I have used? Whether they admit to it or not, most non-lawyers who think about their individual rights would see those rights arising from ‘natural law’. Naturalist conceptions of rights encompass two broad, but largely contradictory sets of philosophies. On the one hand, the original liberal philosophers such as Rousseau and Locke (and modern religious conservatives) would see rights as the gifts of a supernatural being: we are “endowed with rights” by the “Creator”. Later liberals (including many modern humanists and libertarians) see rights arising from “human” status per se: existence as a conscious individual with biological needs requires certain necessities to be met to prevent harm and suffering.

While it’s attractive to appeal to the abstract concept of ‘human dignity’ (certainly, I’ve leaned on it myself), it’s hard to be clear on precisely where the boundaries of “humanity”, “dignity” or “necessity” lie. While I am sympathetic to the Great Ape Personhood Project and support legal protections for the comatose and permanently impaired, such sympathies are the result of an aesthetic choice (see Chapter 17) rather than naturalistic imperative. The sad truth is that in an anarchist state of nature, individuals have no rights: the only interests they could achieve would be those they had the power to achieve through self-help. An individual alone would have no claim on ‘nature’ or the supernatural for the satisfaction of their rights, moral or otherwise; such claims arise only through interaction with other social individuals.

In other words, rights necessarily arise when an individual enters into social relations with others, and not before. "Politics for the New Dark Age” is underwritten by this type of Rawlsian social contract liberalism, which provides the best (i.e. authoritative and persuasive) account of how individuals might join together as a society, using the thought experiment of the “veil of ignorance”. Rights, in this view, are the minimum conditions under which an individual would freely elect to join a society with others. As Seyla Benhabib (who is rapidly becoming one of my favourite political philosophers) puts it:

“A community of interdependence becomes a moral community only [when] it resolves to settle those issues of common concern to all via dialogical procedures in which all. . . . all those whose interests are actually or potentially affected by the courses of action and decisions [of that community] . . .are participants.”

While a social view of rights can underwrite a positivist or particularist understanding of rights (the conditions I would enter this society are different from the conditions I would enter that society), Rawls’ thought experiment is an abstract representation of all societies founded on a minimal conception of individualism and human equality.

A pluralist conception of rights

Thus, rights are social in nature, innate to social structures, not individuals.  We can plausibly claim that any liberal democratic society constituted on the basis of Rawlsian liberalism will share a common conception of individual rights. That’s a pretty powerful claim philosophically and politically, and gets us a long way towards human rights universalism. But not all actual, existing societies are founded on this basis. While liberalism is a pretty powerful cultural technology, other cultural adaptions may be successful in their environment or survive because of path dependencies in their particular evolutionary histories.

In order to make the final leap to a truly universal application of rights, we have to see rights in a pluralist way. What this means is that even if two societies hold radically different beliefs about the basis on which their societies are organised (which may be neither individualist, humanist nor egalitarian), we should in theory be able to find at least some pramatic rules they share about the treatment of individuals. This is due to material constraints imposed by human biological needs and common environmental problems, which restrict the possible space of viable cultural variation. In other words, the possible range of human cultural and social organisation is not unlimited and cultural differences are not inherently untranslateable. Environment and social structure mediates between biological necessities and cultural variation. 

In his later work, Political Liberalism, Rawls called this version of rights the ‘overlapping consensus’. It brings back into our conception of universal rights something like positivism (because the consensus is established by mutual agreement and recognition amongst societies) and naturalism (because of the scope of observed variation is limited by materialist constraints). Because a pluralist conception of rights is mutually constitutive (i.e. it depends on mutual recognition of the ongoing validity of respective social arrangements), it may also be conditional in the sense that a society that fails to meet certain standards is not longer recognised and treated as a member in good standing of the community of societies.

If there's ever a second edition of "Politics for the New Dark Age", expect to see Chapter VII improved along these lines. Until then. . . .