ARENA Working Papers
WP 98/7

 

 

 

 


Indigenous Minorities and the Shadow of Injustice Past



Andreas Føllesdal
ARENA, University of Oslo

 


1 Introduction

The paper explores the grounds for claims of compensation based on past injustice, with particular attention to indigenous minorities.

Heads of state and other representatives of political communities sometimes apologize for injustice perpetrated by previous generations. Thus Queen Elizabeth II recently apologized to the Maoris of New Zealand for their mistreatment by the British in the 19th century. This phenomenon raises perplexing questions concerning the basis and scope of present claims of compensation for past wrongs -- particularly committed against indigenous populations. A theory of such reparation is the topic of this paper.

First some notes on what the paper does not address. Our concern is not with the very real injustices committed and perpetrated today against many indigenous populations - including sometimes abysmal shares of benefits and opportunities, and how they should be corrected, but rather with the implications of injustices committed in the past. Furthermore, to be sure, indigenous and other minority populations may have other grounds for claims to territory, use of the land, or special control over decisions, in addition to past injustice - eg based on the need to maintain culture as developed by Kymlicka (1995, 220). There are important international conventions addressing some of these issues, including the 1989 ILO Convention on Indigenous and Tribal Peoples, and the United Nations Commission on Human Rights' Draft Declaration on the Rights of Indigenous Peoples adds to the Declaration on the Rights of Minorities of 1993. Finally, the issue of reparation - correcting for past injustice - not only arise in the context of treaty-based agreements struck between residents and newcomers, even though violations of treaties and injurious treaties are but two important cases. Violent or otherwise unwanted invasion onto territory de facto under the control of a previously settled group also raises the problems I seek to reflect on in this paper.

Section 2 sketches some challenges to such a contractualist theory of reparation. Section 3 lays out some fragments of liberal contractualism, the normative framework brought to bear on this issue. Section 4 returns to consider arguments in favor of holding that past injustices matter.


2 Lyons, Sher, Waldron and Goodin on reparation

David Lyons (1977), George Sher (1981), Jeremy Waldron (1992) and Robert Goodin (1997) have presented in-depth systematic reflections on the present normative implications of past injustice. I here provide a sketch of some challenges to contractualism which can be deduced from their writings, structured around Waldron's contribution.

Waldron considers the difficulties of demanding full reparation for past injustice. Counterfactual considerations may allow us to "change the present so that it looks more like the present that would have obtained in the absence of the injustice" (8). Important challenges to this approach include the fact that some effects are due to human choice, making it nearly impossible to pursue this exercise: "What would the tribal owners of that land have done with it, if wrongful appropriation had not taken place? To ask this question is to ask how people would have exercised their freedom if they had a real choice." (9) The problem, as Waldron puts it, is that "We make predictions all the time about how people will exercise their freedom. But it is not clear why our best prediction on such a matter should have moral authority in the sort of speculations we are considering." (10) It is, after all, "the act of choosing that has authority" (11). Waldron nevertheless appeals to considerations of rational choice to identify some broad guidelines: "So any account of what would have happened had all transactions been voluntary will require P to emerge at least as well off as he was at the beginning of the story." (11).

We may also recall that the impact of intermediate choices is limited regarding issue areas. George Sher notes that "When an entitlement is already established in a rectified world and is naturally stable over a period of time, its retention during that period is totally explainable in terms of its initial acquisition. In this case, the entitlement need not be attributed to any further doings of the agent; and so those doings seem irrelevant to the entitlement's transferability to the actual world. ... desert of compensation is not entirely momentary and evanescent." (Sher 1981, 15-16). Thus control over territory which arguable should not be the subject of transfer to others is not threatened by such considerations.

Nevertheless, two challenges remain, one having to do with who should bear the burdens of reparation. Attempts at rectifying old injustices challenge all present holdings insofar as they are generated partly on the basis of the past injustice, eg. through a market mechanism. (12) A particular problem arises for contractualist theories because "it is characteristic of such approaches that they are holistic, systemic, and structural rather than local and specific in their conclusions and recommendations. We deploy the counterfactuals of modern contractarianism to evaluate the entire basic structure of a society, not to evaluate some particular distribution among a subset of its members." (13).

The second objection concerns the apparently uneven appeal to hypothetical choice. A man who "actually loses his land in a reckless though voluntary wager and who accepts the justice of the outcome may be entitled to wonder why, in the attention we pay to aboriginal reparations, we insulate people from the possibility of similar vicissitudes." (12) Thus why should we appeal to hypotethical choice in some circumstances but not all?

Waldron's second line of argument considers the present perpetuation of past injustice in the form of unjust laws, institutions or holdings. Past expropriation of indigenous lands must be rectified by returning the land. Waldron's main challenge to this is the fading of entitlements over generations: the right of the original owners was violated, but the rights of present descendants need not be. (15) After generations, new expectations founded in ignorance of past injustice must be given some normative weight counselling against respecting the original claim based on a right of acquisition. This is particularly so since the importance of original appropriation (and of negotiated transfer) seems based on the value of making and controlling those objects that are part of one's life plan - but this interest is also at stake against returning objects wrongly acquired but enjoyed by others over generations. The upshot is that the best justifications of property rights allow that they can fade.

Waldron finally notes that entitlements may change with circumstances: A reasonable defense of practices of acquisition must recognize that acquisition must be sensitive to affected parties - for instance those thereby excluded from enjoyment, as recognized in the Lockean Proviso: the exercise of acquisition is unproblematic as long as enough and as good is left for others (Locke 1963, 2.33). The legitimacy of original acquisition is thus at stake when new parties are affected, the point being that a complete return to previous ownership patterns may be unacceptable. Thus Lyons argues that property rights cannot be completely stable across social change, for instance when new arrivals are disadvantaged. The upshot is that territorial control hundreds or thousands of years ago would have to be adjusted in light of population growth or changing needs for material goods (Lyons 1977, and cf. Sher 1981, 9.) Thus past injustice may be superseded - just as past just holdings may no longer be acceptable. I suggest that this indicates that Lyons', Waldron's and institution of property is unstable, possibly violating the (legitimate) expectations of owners. What are we to make of this?

Robert Goodin pursues a similar tack, holding in regard to treaties, that "The key issue in assessing those states of affairs is not whether, historically, we or our ancestors actually agreed to them or to something that set in motion the chain of events that has led to them. If you insist on sticking to quasi-contractual language, the key issue in assessing those states of affairs can be seen as being one of whether everyone would have agreed, knowing what we now know about how that agreement would turn out for all the parties to it." (1997, 50) " If we want to rule our collective affairs in these realms by treaties, they will, as argued above, have to be treaties which are renegotiated (de facto or de jure) in every generation." (1997, 51). Lyons' argument suggests that the institution of ownership may change over time, while Goodin suggests that the institution of treaties must include rules which allow re-negotiation at all times.


3 Liberal Contractualism and the dilemmas

In this section I develop a normative account which throws some light on the issues identified above - who should bear the burden of reparation, the significance of hypothetical choice, and the relationship between unstable entitlements and expectations. I sketch a contractualist perspective, which requires that our rules of action -- including the legal rules regulating the use of consent procedures - can be justified toward all affected parties in an acceptable way.

Four aspects of the normative tradition of liberal contractualism are important for our purposes: a) The focus on rules and practices; the implications of normative individualism for b) the standing of dead individuals and for c) the standing of the preservation and maintenance of culture; d) the role of hypothetical consent in the account of morally binding obligations.

a Focus on rules and practices

The tradition of liberal contractualism holds that social arrangements must be in accordance with principles which persons can reasonably propose as a basis for mutual, informed agreement (Rawls 1971, Scanlon 1982, Beitz 1989) . The social order must in principle be justifiable at the tribunal of each person's understanding (Waldron 1987, 149). The subject matter, on this view, are rules and practices, including social institutions defined by law and maintained through force.

The social institutions that surround us have a pervasive impact. They provide the backdrop for the distribution of important goods, powers, burdens and obligations. At the same time institutions shape our expectations and values. We have a strong interest in affecting these circumstances that shape our interests and plans. Furthermore, we have a strong interest in fulfilling our legitimate expectations. Hence control and influence over political decisions is a great good. This is why the distribution of political authority is a central issue of legitimacy.

Institutional and cultural changes challenge our ability to maintain coherence and continuity in our lives. With changes in values, norms, institutions, history and language, new options for life choices appear, while others disappear. Among the important interests individuals have is the ability to forecast correctly about their own future, including likely options, attainments and needs. The structuring role of culture and institutions in identifying paths and options, and thus shaping our expectations is of little value if the signals are false. Thus, cultural and institutional changes should not be too abrupt: Members have an interest in revising their plans as options and consequences change.

From this point of view the topic to be justified are rules and institutions, which in turn determine how material power should be distributed and regulated. Such assessments require that we compare the consequences of alternative sets of rules for all parties affected by such rules in order to determine what is at stake. For instance, we must consider consent to treaties as part of an institutional procedure where parties can choose among alternative outcomes on the basis of their own assessment of the consequences.

b Normative Individualism

Liberal contractualism accepts the principle of normative individualism, which holds that only interests of individuals (human beings and possibly animals) count as being of value in moral argument (Barry 1991, 26). Thus there is no intrinsic value attached to 'nature', nor to the survival of 'ways of life' or languages except insofar as these are valued by individuals, either as means or as constituent parts of the good life.

Elster and others notes that paying attention to past injustice seems to violate the commitment to normative individualism (Elster 1993). While present and future individuals may have something at stake in the choice among practices and rules, it is difficult to recognize any claims of dead people as relevant within this framework. Therefore it seems difficult to ground present claims on the interest of past generations in having justice done. However, the focus on practices and rules, rather than on particular instances, allow for some recognition in principle of interests of past individuals - eg. insofar as we can recognize as one interest of all the success of projects we embark on while alive - eg. the completion of great works of art, or the maintenance of one's own cultural heritage. However, I suggest that the weight of this interest seems small compared to other interests we have, eg in basic needs and control over our own lives.

c Individualism and the importance of culture

Normative individualism, combined with the fact of reasonable disagreement about the constituents of the good life, lead us to focus on questions of the fair distribution of strategic goods, necessary for a broad range of life plans: Income and wealth, social positions, and educational opportunities.A topic of concern to several authors has recently been to what extent culture and the maintenance of cultural bonds can be recognized as of value within this framework. A brief sketch is in order.

Social institutions and practices are rule-regulated patterns of behaviour which shape options and self-perceptions in ways that affect our expectations, and in turn our plans of life. We must therefore accept, for purposes of arguments about legitimate social orders, that individuals have an interest in influencing the social institutions and other practices which in turn affect their conceptions of the good and life plans. Thus, goods may be of value not only because of their role in satisfying existing desires. Political power to regulate practices and social institutions must also be considered as an important good for purposes of justifying the allocation of goods and burdens fairly among equals within a state.

We must determine what is at stake for people who share culture - including norms and values at various levels of generality, both national groups and minorities. What aspects of culture can ground claims on social resources?

A theory of cultural rights should shed light on claims to rights which may secure legal immunities, material means, cultural support, or legal powers of political autonomy. The more fundamental issue is thus the appropriate connections between the relevant interest of individuals and sound claims to rights, including human rights.

Allan Buchanan suggests that cultural membership must be acknowledged as a constituent part of the good life for many individuals (Buchanan 1991). Many of our interests involve being and doing things together with others who share our beliefs, views, history and values. This is surely correct. However, more needs to be said about how this intrinsic interest in culture is to be weighed, and the kinds of goods one may reasonably claim - after all, contractualism already recognize claims to all-purpose means enabling individuals to pursue their conceptions of the good together with others.

Will Kymlicka argues that cultural membership is valuable as a precondition: it provides the necessary structure for individuals' meaningful pursuit of their various conceptions of the good life. "it's only through having a rich and secure cultural structure that people can become aware, in a vivid way, of the options available to them, and intelligently examine their value." (Kymlicka 1989, 165; cf. Kymlicka 1995, Margalit and Raz 1990, Buchanan 1991, 53-54). Cultural membership helps the individual identify available options. Membership in a culture make options appear valuable by indicating a unity among options, thus making one's plan of life appear worth carrying out and providing grounds for self respect (Tomasi 1995, 584).

While the conclusions seem plausible, Kymlicka draws on premises which appear incompatible with respecting individuals of non-Western persuasions. Kymlicka explicitly grounds the constitutive value of culture on a liberal ideal of the autonomous individual, in effect providing 'another sectarian doctrine (Rawls 1987, 6 and 24, cited in Kymlicka 1995, 164). I submit that we should seek to express the interest in culture without relying so heavily on the interest in choice. I suspect that one might fruitfully reinterpret Kymlicka's argument, avoiding the "comprehensive liberal" premise (cf. Macedo 1995). However, in the following I pursue a different strategy.

I propose (Føllesdal 1996) a third reason why cultural membership is of value, which lends support to groups' claims to control changes to their culture, and which is important when assessing the claims of indigenous minorities.

Intuitively, changes in culture pose a challenge to coherence and continuity. With changes in values, norms, institutions, history and language, new options for life choices appear, while others disappear. Among the interests individuals have is the ability to forecast correctly about their own future, including likely options, attainments and needs. The structuring role of culture in identifying paths and options is of no value if these signals are a sham. Thus, cultural changes should not be too abrupt, since members of a culture have an interest in revising their plans as options and consequences change.

Note that this interest is not based on a voluntaristic conception of the person, holding that the individual values the ability to continually change her plans and values independently of others. Rather, the claim is only that insofar as the expectations formed on the basis of one's culture are prone to influence by social institutions, our interest in forming correct expectations supports claims to be able to regulate the speed and direction of change, and to be informed and/or participate, directly or indirectly, in the changes and adaptation of ones' culture in ways that reduce the risk of false expectations.

The relevant interests at stake in the cases of concern to us include the ability to pursue meaningful lives, to form and change life plans, and maintain control over changing expectations. Thus the interest in controlling changes in one's culture does not rest on an assumption of the value of autonomous choice.

We should also note that this interest, while important, may not override other more vital interests, for instance in satisfying basic needs required for survival. In cases of conflict, the interest in staying alive would seem more urgent than an interest in being able to forecast how others will behave.

The interest at stake, then, is in controlling cultural changes that matter for individuals' expectations - it is not an interest in maintaining cultures unchanged.

d Equal Respect - hypothetical and actual consensus

Equal respect is to be interpreted in a "contractualist" tradition: social arrangements must be in accordance with principles which persons can reasonably propose as a basis for mutual, informed agreement (Rawls 1971, Scanlon 1982, Beitz 1989). The social order must in principle be justifiable at the tribunal of each person's understanding (Waldron 1987, 149). This reasongiving "manifests our respect for the reasonableness of others" (Macedo 1990).

The tradition of liberal contractualism provides a particular interpretation of this commitment. Institutions are legitimate only if they can be justified by arguments in the form of a social contract of a particular kind. A fundamental commitment to equal respect entails that all individuals must be served by the social institutions: Every individual's interests must be secured and furthered by the social institutions as a whole. This commitment is honed by the notion of possible consent, allowing us to bring the vague ideals of equal dignity to bear on pressing questions of legitimacy and institutional design. The principles of legitimacy we should hold institutions to, are those that the persons affected would unanimously consent to, consenting under conditions which secure and recognize their status as appropriately free and equal. Appeals to consent thus serves to recognize legitimate authority, even though consent is not what generates the moral authority of institutions (Murphy 1994). The set of social institutions as a whole should secure the interests of all affected parties to an acceptable degree, including our interests in peace, stability, basic needs, and shares of goods and powers.

When are we morally required to subject ourselves to social institutions and to the system of law? At first glance one might think that consent must be the source of all such moral requirements, since we usually only acquire moral or legal obligations through free and informed consent. Thus there is a general tendency to give a moral and legal defense for the exercise of power over others by referring to some kind of consent - if not an actual consent, then tacit or even hypothetical.

From this point of view it is pointless to ask about a justification fro the use of actual consent in certain situations: a moral justification of a social procedure will in the best of all cases serve to show precisely that it rests on such consent. However, it is unfortunate and confusing when a hypothetical or fictitious consent is said to render the exercise of power morally binding, in just the same way as our actual, free and informed consent can bind us.

There are other ways to legitimize the exercise of power than by basing it on consent. Hypothetical consent nevertheless play an important role in such justifications. It may therefore be useful to consider which role a hypothetical consent plays for expressing moral requirements of the legitimate use of power.

Uncertainty about the role of consent plays can be illustrated on the basis of the contractualist tradition in political philosophy.

Social institutions are regarded as just only if they can be understood as the result of a social contract with starting point in a 'state of nature' between 'equal' and 'free' individuals. Our moral obligation to obey the law of the land is justified partly by the claim that the social order could have been the subject of consent among all affected parties. But it is not correct to hold that a such hypothetical consent creates the moral obligation or duty, in the same way we generally hold that free and adequately informed consent binds those who consent: for instance, we do not have, and have never had, a real freedom with regards to the social institutions, in the sense that we can choose to reject them. And not even voting can be regarded as expressing a morally binding tacit consent: not to vote can not be understood as withholding one's consent, and we demand that the voting minorities remain loyal to decisions that run counter to their vote.

The use of presumed consent in order to determine how institutions should be, thus does not assume that the citizens have full control over their life from the outset in the sense that we as individuals could determine all results unbound by moral obligations. The idea of possible consent in the contractualist tradition is instead an expression of one important condition for the just distribution of power in a society.

The requirement of equal respect entails that all individuals must be served by the social institutions: the individual's interests must be furthered by the social institutions as a whole.

Thus, each law in society does not have to rely on actual consent to be morally legitimate, if our interests are secured within society even without ourselves having direct control - without sitting at the controls. To then ask if one could have or would have consented to particular arrangements only serves as an important check on whether the procedures satisfy the requirement of equal respect. This is how hypothetical consent is used within John Rawls' version of contractualism (Rawls 1971). However, in some situations the requirement of equal respect suggests that the decision procedure should rely on the use of actual consent in order to secure our interests.

Just institutions sometimes allocate the power to decide with individuals or representatives, through procedures of actual consent - eg. in market transactions or treaties. Why are such decision procedures suitable? The use of free and adequately informed consent in a procedure gives us the ability to decision - a power - to achieve certain outcomes. When and how are such powers in the parties' interest?

Several aspects of consent procedures are worth noting. One particular individual (or a particular group) is given the power to choose among a small or large set of alternatives, on the basis of her own assessment of the situation.

- One set of actors have control through the act of consent to determine the outcome.

- The persons' free and informed consent is based on their own, subjectively experienced, total evaluation of the alternatives, where their common plans and interests may play a role, in addition to their individual well being.

- The alternatives to be chosen among are given. The decision about which alternatives should be made available for the agents is important: much is at stake for the individual and for other parties, in particular where society outside deny further responsibility once a decision is made.

The consent procedure has several consequences. The procedure serves as an instrument for picking one alternative among a set of (permissible) outcomes. In addition, the consent procedure can have other consequences which must also be taken into account when considering whether and when this procedure should be used (Dworkin 1982, Scanlon 1987).

Consent binds. If a competent person or association consents to something, this often contributes to holding them legally or morally responsible for a result, in several ways. Consent entails that the individuals are made part of the decision, so the choice of action becomes an expression of their own personality, values and evaluations. It is more difficult to reject responsibility for such outcomes. Free and adequately informed consent to an outcome also often affects the distribution of responsibility among parties, especially for results for the decisionmakers themselves: "as you sow, you shall reap".

Two questions are important for understanding why - and when - consent procedures are well suited for promoting the interests of affected parties. We must understand which valuable alternatives are available for the individual or group - which freedom and material power they have. And we must understand when the personal qualifications are present, so that the person's or group's express subjective evaluation of the alternatives is in accordance with their own, considered conception of the good.

This discussion suggests that consent procedures are particularly appropriate when

- it is primarily that person's or group's interests which are seriously affected;

- where different conceptions of the common good will evaluate the alternatives differently, and much is at stake;

- when the decision maker is well suited for assessing the alternatives in light of her own interests: where she has sufficient information about the consequences, and is able to reflect about the choice.

In such situations the use of consent serves to give the persons increased power to promote what they value. However, it is also important to assess the dangers of mistakes or abuse of consent procedures. The person's subjective desire is not always a reliable indicator for whether and to what extent her future interests will be satisfied. When a person is helpless or without power, his freedom and ability to make decisions is often very restricted. Agents can also lack insight in their own situation and opportunities. What role should consent play in decision procedures in situations of powerlessness? We then cannot assume that formal consent is a reliable expression of the values at stake, and we should therefore be wary of accepting consent as morally or legally binding. In situations of powerlessness a consent procedure should not be regarded as valid.


4 Problems reconsidered

I here return to the problems of contractualist arguments in favor of reparation.

a The significance of hypothetical choice

Waldron suggests, in line with the Vienna Convention article 69 (2), that we should establish insofar as possible what would have been the case in the absence of the injustice committed. Waldron's argument seems to fit well within the contractualist framework.

The problem is that "some of the events in the sequel ... are exercises of human choice rather than the inexorable working out of natural laws ..... What would the tribal owners of that land have done with it, if wrongful appropriation had not taken place? To ask this question is to ask how people would have exercised their freedom if they had had a real choice." (Waldron 1992, 9). This, however, is difficult: "We make predictions all the time about how people will exercise their freedom. But it is not clear why our best prediction on such a matter should have moral authority in the sort of speculations we are considering." (10)

I suggest that the distinction indicated above between hypothetical and actual consent lays some of these worries to rest. Hypothetical choice indicates the constraints on legitimate order, while actual choice binds participants to a particular morally binding agreement. Contractualist arguments about hypothetical acceptance primarily indicate the limits to valid treaties or outcomes of settlements: that indigenous peoples would not have entered into a bargain which left them very much more badly off than they would be in the absence of threats of sanctions, and that circumstances that yielded such bargains are such that consent is not morally binding. On the other side, considerations of hypothetical consent may indicate that ceding certain land rights and political power sharing with newcomers may be required in times of need or migration. Thus contractualism may conclude that the claims of indigenous peoples may be stronger regarding certain uses of the land. Indigenous minorities had established a community on land later included in the current state often by unjust means. This lack of choice strengthens the claims of indigenous minorities to remain somewhat autonomous.

This background may support claims by the indigenous minority to enjoy continued political control over land, but shared with other affected parties. Furthermore, it lends support to the view that indigenous peoples claim rights which secure their prospects for maintaining their culture, while other groups only entertain claims to non-intervention by the state with regard to the minority's efforts at maintaining their culture. A fair agreement from the position of de facto social control over the territory, would surely provide the indigenous population with more than the claim laid out above - the ability to control changes in their own culture. In a negotiation among free equals, there would be no reason for the indigenous minorities to renege control over resources and political autonomy, receiving nothing in return. Past control over territory suggests that the present rights of indigenous minorities should include not only control over the integration of their culture into the mainstream, but also powers to ensure the maintenance of their culture and indigenous decision-making institutions (I defend this view in Føllesdal 1996).

The moral case is, of course, worse where treaties were entered into, but later unilaterally violated by the invading community - and in situations where there was no attempt at coming to agreement but where newcomers simply wandered into areas previously controlled by an indigenous group.

The details of how an alternative actual chain of bargains would have unfolded is unavailable to us. However, this is not relevant for the main point of the contractualist argument, namely identifying constraints or principles which institutions and practices must satisfy - including the scope of the institution of treaty-making, bargains and market trading.

Thus we can agree with Waldron that "broader conclusions may be available. An important challenge to a counterfactual approach is how to disentangle and deal with systemic effects. I suggest that under such circumstances the scope of repairable injustices must be limited to those with traceable effects. This consideration leads us to focus on only some consequences of agreements or transfers of control.

Waldron also notes another problem in explaining the different normative significance of voluntary risk-taking vs. hypothetical choice. He who "actually loses his land in a reckless though voluntary wager and who accepts the justice of the outcome may be entitled to wonder why, in the attention we pay to aboriginal reparations, we insulate people from the possibility of similar vicissitudes." (Waldron 12)

Again it seems sufficient to point to the distinction between hypothetical consent as indicating constraints on permissible institutions - including those involving wagers and contracts, and actual consent as binding individuals to particular outcomes, where actual choice under appropriate conditions is central.

b A note on the significance of actual choice

An important objection to consider is that certain kinds of past injustice may stand in no need of being corrected because the parties somehow consented eg to a transfer of resources, goods or control - a transfer that may have been unfair due to ignorance or coercion (Thucydides' Melian dialogue), or with unforeseen detrimental consequences to one party (trading Manhattan for beads). To some extent, some may say, the consequences must be accepted because of consent at the time.

Liberal Contractualism, of course, holds that there are limits on what one may validly consent to. With Rousseau, against Grotius and Wolff, we may agree that slavery cannot be agreed to:

To say that a man gives himself gratuitously is to say something absurd and inconceivable. Such an act is illegitimate and null, if only because he who does so is not in his right mind. To say the same thing about an entire people is to suppose a people of madmen. Madness does not make right.

Even if everyone could alienate himself, he could not alienate his children. Their freedom belongs to them; no one but themselves has a right to dispose of it."

(Rousseau 1762, bk. 1 ch 4)

Certain goods and controls may in principle be unalienable. As an example, sovereignty over one self or over central elements of one's well being may not be signed away completely. Thus jus cogens norms, "peremptory norms from which no derogation by treaty is permitted." (Schachter 1982, 339; cf. the Vienna Convention on the Law of Treaties Art. 53.) One might argue that some contracts lock up too many future options, e.g. those which compromise a 'way of life', and that such contracts should be void.

Furthermore, the process may violate conditions of sufficient freedom and range of alternatives - thus we may disagree with Hobbes, who argues that consent extracted under the guns of the victors justify despotic domination (Hobbes 1968, ch 20).

c Burdens of reparation

A second implication of the focus on systemic effects is relevant for the responsibility for reparation: when, as is sometimes the case, benefits of injustice are broadly dispersed, it would seem plausible that the burdens of reparation should also be broadly shared -- thus the surrounding society in general may most plausibly be held accountable, providing economic compensation etc through taxes.

The not illegitimate expectations of present generations living on land unjustly acquired may be better respected in this way, eg. by buying them out rather than eviction. Thus when costs can be broadly distributed they should be. Burdensharing is more difficult when the best resolution involves partial political control by an indigenous minority, where other residents on the land must often lose such control - if only over certain kinds of use.

This response illustrates a strength of those contractualist theories which focus on systemic and structural features. However, it is a mistake to assume that contractualist approaches are fundamentally unable to address more 'local' problems of distributive justice. But the holistic approach does not seem to be a 'deep' feature of contractualism.

d Instability

It is important to indicate how liberal contractualism determines the bounds to valid contracts, as compared to some other views. One important challenge to escape clauses in contracts, treaties etc. is that if contracts cannot be used to permanently transfer control or block options, the practice becomes a sham. No one will resort to contracts if descendants can always overturn what was contracted. Rather, what one seeks is permanent transfer of control, so as to facilitate long term projects and secure expectations.

Thus Goodin (1997) holds that it is the substantive fairness of a treaty that gives it moral weight to be followed today. The present day distribution of health and welfare suggests that in Australia, Aborigines would not have consented to the treatment they have been subjected to.

There are two kinds of worries concerning this position. Firstly, easily reversible property may make the institution of contract useless. Secondly, changes in the institutional practices of property and transfer by contract threaten individuals long term expectations.

The former of the two seems most problematic in terms of maintaining expectations on the contractualist view. Property rights and contracts are of severely limited value if agreements are open to nullification on a case-by-case basis, as Goodin's act utilitarian suggestion indicates. However, the concern to justify practices by their effects in various cases does not prevent having some restrictions on property and transfer which may kick in at specified times - eg. by reference to acts of God, or unduly severe hardship on third parties etc. Such general clauses may warrant transfers by consent or forceful occupation, on the basis of present suffering of indigenous minorities - but also support claims to power sharing made on indigenous minorities by descendants of newcomers who find themselves in severe poverty or unable to exercise fair control over their surroundings. However, single case deviations from established institutional practice are more difficult to defend within the contractualist framework.

The second issue, the slowly changing or evolving institution, seems less worrisome in terms of respecting expectations. Thus we may allow that institutional practice may have to be changed. With Lyons (1977) and Sher (1981) we may agree that the institution of property -- or transfer - need not be completely stable across other social change. Thus the interests of new arrivals may justify changes in the practice of property, e.g. leading to distinctions between use-rights and transfer rights over property, or distinguishing between compossible rights to graze and rights to access (cf. Australian High Court decision Wik 1996, Goodin p. 32 n. 78) .

It seems reasonable to hold that practices of control over property must in principle be mutable over time - since our interest in maintaining expectations and securing interests through property and agreement are only some of several interests at stake in the institutions of property and transfer.

e Cohesion matters more

A final note, in response to other worries about granting rights to indigenous peoples.

One might object that even though past injustice matters, current social cohesion matters much. This might be taken to suggest that nation-state nationalism must rule the day, and if minorities such as indigenous groups are granted special rights based on past injustice or other grounds, compatriots cannot be seen as having a special claim (cf David Miller 1995 for a view which might yield such a worry).

In response, one may of course firstly challenge the normative significance of nationhood developed by Miller and others, and instead focus on shared institutions in ways closer to the contractualist approach. Furthermore, however, we may note that among the common interests that define nationhood on this view, some may be more weighty than others, and Miller suggests that those interests that divide -- eg. between indigenous and other members of the society - must be less weighty. So it is quite possible that there is "more" in common even though there are conflicting views about fair claims.

Moreover, and perhaps more important: The point suggested by my contractualist argument is that certain past injustices must be corrected, because the shared and important value of justice is violated. Thus views stressing the importance of shared national interests may agree that past injustices must be repaired.


References

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[Date of publication in the ARENA Working Paper series: 15.04.1998]