Political community and historical injustice

Australasian Journal of Philosophy ISSN: 0004-8402 (Print) 1471-6828 (Online) Journal homepage: http://www.tandfonline.com/loi/rajp20 Political community and historical injustice Duncan Ivison To cite this article: Duncan Ivison (2000) Political community and historical injustice, Australasian Journal of Philosophy, 78:3, 360-373, DOI: 10.1080/00048400012349651 To link to this article: http://dx.doi.org/10.1080/00048400012349651 Published online: 02 Jun 2006. Submit your article to this journal Article views: 318 View related articles Citing articles: 6 View citing articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rajp20 Download by: [University of Sydney Library] Date: 29 October 2017, At: 01:53 Australasian Journal of Philosophy Vol. 78, No. 3, pp. 360-373; September 2000 POLITICAL COMMUNITY AND HISTORICAL INJUSTICE I Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan Ivison But all these supposedly good intentions cannot wash away the stain of injustice in the means used for them. Someone may reply that such scruples about using force at the beginning, in order to establish a lawful condition, might well mean that the whole earth would still be in a lawless condition; but this consideration can no more annul that condition of right than can the pretext of revolutionaries within a state, that when constitutions are bad it is up to the people to reshape them by force and to be unjust once and for all so that afterwards they can establish justice all the more securely and make it flourish. 2 Although almost everyone accepts there is some connection between the injustices of colonial domination and the disadvantages indigenous peoples suffer from today, the exact nature of this connection is contentious. Is it causal or moral (or both)? If it's the latter, then in what way are the connections between past injustices and present-day justice morally relevant? Many argue that concentrating on the historical nature of colonial wrongs is misplaced. 'Backward looking' claims of injustice focus too narrowly on the allocation of blame, so the argument goes, and not enough on addressing contemporary disadvantage. If fights or primary goods are to be distributed impartially, then what has the particular history of relations between peoples got to do with it? Indigenous peoples deserve special rights, on this line of argument, because they suffer from contemporary disadvantages such that the granting of rights is a justifiable means of addressing those disadvantages (that they are 'special' is an important aspect of this mode of justification). The nature of disadvantage itself is established with reference to the goods of liberal justice. The fact that the claimants are 'indigenous', or signed an agreement in the distant past that entitled them to a specific piece of land, is less relevant than the fact of contemporary disadvantage. So there is scepticism in contemporary debates (both academic and public) about the value of focusing on historical injustice as the most appropriate means of addressing I am grateful for helpful and in some cases detailed comments from Tom Baldwin, Andrew Mason, Matt Matravers, David Owen, Paul Patton, Ross Poole, Paul Redding, two anonymous reviewers, audiences at Macquarie and Southampton Universities and above all, Sue Mendus. Immanuel Kant, The Metaphysics of Morals, in Allen Wood (ed.), Mary Gregor (trans.), Kant; Practical Philosophy (Cambridge, Cambridge University Press, 1996), p. 490. 360 Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan lv~on 361 the claims of indigenous peoples. 3 The basic intuition here, which is the main focus of this paper, is that the historical nature of the wrongs committed against indigenous people is not ultimately relevant to considerations as to how best to address the injustices they suffer from today. Compensation and reparations may be due for certain specific wrongs but cannot by themselves carry the burden of rectifying the kind of systematic injustice suffered by indigenous peoples. At most, historical injustices call for symbolic gestures of public 'reconciliation' or atonement, rather than more substantial distributive measures. Consider, for example, the influential argument made by Jeremy Waldron. 4 He offers two possible grounds for compensating indigenous peoples for past injustices. The first is a counterfactual approach, where the aim is to try and bring the present state of affairs closer to those that would have obtained had no injustice actually occurred. The second approach is more straightforward. Instead of trying to reconstruct a counterfactual case for compensation, we simply ask if the entitlement that was violated all those years ago survives. If my tribe or community was entitled to land unjustly taken hundreds of years ago, why shouldn't it be so today? Both approaches fail, according to Waldron, because of the difficulties raised by the change of cast and circumstances. What if returning land involves expropriating it from innocent third parties (such as recently arrived immigrants) who had no knowledge of, or connection with these past injustices? And what if the descendants of those against whom the original injustice was committed are not, in fact, substantially disadvantaged? Returning land or making substantial compensation payments might harm others more than it helps the particular people in question. The historic injustice, in other words, may have been superseded. 5 Waldron accepts, however, that although 'genuine' or 'full' reparations are ruled out by his account, something is due: namely, forms of symbolic recognition and public remembrance. 6 'Like the gift I buy for someone I have stood up', writes Waldron, a symbolic payment 'is a method of putting oneself out, or going out of one's way, to apologize'. The analogy points to the idea that addressing historic injustice falls outside of the register of liberal distributive justice proper, however much it might overlap with A considerable part of the philosophical literature focuses on the problems with entitlement theories of justice in general. This debate is not the main focus of my paper. For fitrther discussion see Peter Laslett and James Fishkin (eds.), Justice between Groups and Generations (New Haven, Yale University Press, 1992); George Sher, 'Ancient Wrongs, Modern Rights', Philosophy and Public Affairs 19 (1981), 3-17; David Lyons, 'The new Indian claims and original rights to land', Social Theory and Practice 4 (1977), 249-72. Christine Korsgaard, 'Kant on the right to revolution' in Andrews Reath et al. (eds.), Reclaiming the History of Ethics: Essays for John Rawls (New York, Cambridge University Press, 1997), p. 306; Claus Oft'e, 'Homogeneity and Constitutional Democracy: Coping with Identity Conflicts through Group Rights', Journal of Political Philosophy 6 (1998), 113-141; Andrew Sharp, Justice and the MaorL Second Edition (Auckland, Oxford University Press, 1997), pp. 125-77; A. John Silmnons, 'Historical Rights and Fair Shares', Law and Philosophy 14 (1995), 149-84; Onora O'Neill, 'Rights to Compensation', Social Philosophy and Policy 5 (1989), 149-84. 'Superseding Historic Injustice', Ethics 103 (1992), 4-28. Waldron's argument is discussed in greater detail by Janna Thompson in this Issue. Waldron, 'Superseding Historic Injustices', pp. 13-19. Waldron, 'Superseding Historic Injustice', p. 7. Waldron is mistaken to suggest that the choice is between 'full' reparations and 'symbolic' payments; there are surely options in between. Furthermore, it is not clear why forms of compensation that do not involve transfers of land suffer from the same problems Waldron identifies. Moreover, if he thinks the historical injustice 'superseded', why is an apology required? These two aspects of Waldron's argument seem to run in opposite directions. Downloaded by [University of Sydney Library] at 01:53 29 October 2017 362 Political Community and Historical Injustice contemporary disadvantage. 'It is the impulse to do justice now that should lead the way', argues Waldron, 'not the reparation of something whose wrongness is understood primarily in relation to conditions that no longer obtain'] Is this the best way of addressing indigenous peoples' claims for land and selfgovernment? I shall argue it is not. Indigenous peoples' claims rest, in part, on the recognition of the historical injustices carried out against them by various colonial powers. Downplaying the relevance of historic injustice for consideration of their claims risks misidentifying the nature of the moral wrong at stake, especially from the perspective of indigenous people, and thus potentially the legitimacy and efficacy of those institutions and distributions meant to address them. Indigenous peoples' claims ha countries such as Australia and Canada are not only about compensation or reparations, but also about the terms of association between them and the colonial state. The injustice of expropriation of Aboriginal lands, for example, is not only about the dispossession of property, or the violation of negative rights of non-interference, but a violation of just terms o f association. 8 Thus, if the institutions within which the benefits and burdens of society are to be distributed are said to be unjust--perhaps because they do not acknowledge alternative conceptions of property, or coordinate jurisdiction over a territory--then it is not clear how the imposition or perception of that injustice has been superseded in the manner argued by Waldron. Insofar as it remains unaddressed (which it is by almost all those cited above in n.3), the moral rupture that occurred in the past persists in the present. For it is clear that many indigenous people see recognition of the past, and especially of the injustices of the past, as important not only with regard to possible compensation, but also as informing the normative structure of relations in the present. 9 The history of these relations remains vivid because it is a crucial part of the articulation of indigenous demands in the present; it permeates their reasoning for collective action and their culture. Addressing present claims means addressing the past. In other words, the distinction between 'forward-looking' and 'backward looking' justice is much more difficult to maintain than is usually suggested, especially when the aim is to address political and cultural disadvantage. 1° My aim in this paper is to try and reconnect the historical dimension of indigenous claims to matters of distributive justice. The good of citizenship, whatever else it involves, includes the capacity to participate effectively in the shaping and interpretation of a community's political morality and 'ethos' as manifested in its social practices and institutions. Ensuring the conditions for the equal participation of citizens in the public culture of the state is an obligation citizens owe to each other. The facts of historical injustice come to bear on the content of these obligations and responsibilities through the practices of 'public reason'. Thus citizens of ostensibly postcolonial states such as 7 Waldron, 'Superseding Historic Injustice', p. 27. 8 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge University Press, 1995); Susan Dodds, 'Justice and Indigenous Land Rights', lnquiry 41 (1998), 187-205. 9 This forms a central theme of the Royal Commission on Aboriginal Peoples (Ottawa, Ministry of Supply and Services, 1996). 10 Arguably, liberals implicitly appeal to historical arguments anyway when justifying special treatment for minorities, including indigenous peoples. See the discussion by George Sher, 'Diversity', Philosophy and Public Affairs 28 (1999), 85-104. 363 Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan Iv&on Australia and Canada have special responsibilities to account for past injustices. (Needless to say, these aren't the only obligations they have). The way a community argues about the scope and limits of justice is affected by its past. The enterprise of democracy rests upon a premise of collective agency, however contestable and fluid that conception of agency is. Citizens must come to accept their own 'authorship' of the procedures (deliberative and otherwise) through which the state reaches its decisions in order to realize their equal freedom and feel 'at home' amongst its institutions and norms. Ix But how a people are able to constitute themselves in this w a y - how democratic institutions are able to remain stable and robust over time in the face of disagreement and political and economic change--is tied, in various ways, to how they are already constituted through their history and 'ethos'. The history of relations between indigenous peoples and liberal democratic states presents a particularly charged and complex example of this interdependence between reason and community. II For John Rawls, public reason denotes the reason of a democratic people: °Public reason is the reason of equal citizens who, as a collective body, exercise final political and coercive power over one another in enacting laws and amending their constitution'. 12 Thus when proposing or debating matters to do with 'constitutional essentials', citizens should appeal only to norms that could be accepted by everyone given 'reasonable pluralism'. This rules out, according to Rawls, appealing to any deep metaphysical or 'comprehensive' grounds when justifying the exercise of public political power. Note that acceptance of the limits of this idea of public reason follows from a prior acceptance of Rawls's 'political conception of justice', t3 Agreement on basic constitutional principles, thinks Rawls, entails the kinds of limits on public debate suggested by the idea of public reason. As I shall characterize it, however, the logic of public reason should run in the other direction. Public reason is the reason of democratic people seeking to justify the basic institutions of society and the exercise of political power lacking any prior established consensus over a basic conception of justice. 14 A crucial feature of the 'circumstances of politics' in the case of postcolonial societies then, is disagreement over the legacy of colonial domination for matters of justice. ~5 I I For two thoughtful discussions of this good see James Tully, Strange Multiplicity, pp. 202-3; and Michael Hardimon, Hegel's Social Philosophy: The Projeet of Reconciliation (New York, Cambridge University Press, 1994), pp. 15~41. See also Andrew Mason, 'Political Community, Liberal-Nationalism, and the Ethics of Assimilation', Ethics' 109 (1999), 261-286; and Robert Post, 'Democratic Constitationalism and Cultural Heterogeneity', Australian Journal of Legal Philosophy, forthcoming. 12 John Rawls, Political Liberalism (New York, Columbia University Press, 1993), p. 214. Cf. now 'The Idea of Public Reason Revisited' in Samuel Freeman (ed.), John Raw&: Collected Papers (Cambridge MA, Harvard University Press), 573 615. ~3 See Political Liberalism, Lecture VI passim. 14 For further discussion see Duncan Ivison, 'Modus Vivendi Citizenship', in Catriona Mackinnon and lain Hampsher-Monk (eds.), The Demands of Citizenship (London, Continuum Publishing, 2000). ~5 The idea of the 'circumstances of politics' is from Jeremy Waldron, The Dignity of Legislation (Cambridge, Cambridge University Press, 1999), pp. 154 5. Curiously, his sensitivity here to the need for political theorists to pay attention to the consequences of disagreenaent is completely absent in his article on the claims of indigenous peoples. Downloaded by [University of Sydney Library] at 01:53 29 October 2017 364 Political Community and Historical Injustice Thus public reason has historical and interpretive dimensions to it. What do I mean by these terms? An interpretive approach to ethics involves a particular ordering or fit between a community's complex of institutions and practices and its scheme of values-an account of what is good about those practices and institutions. On one reading of the interpretive approach, the former is basic. As Gopal Sreenivasan puts it, 'their status as goods is recognized within the organization of that community's ethical life itself'. The validity of these goods, in turn, can't be deduced from any 'independently valid rules or principles'. 16 If the community's concrete conception of the good life is basic, then any adequate account of the goods informing that conception has to be established with reference to the actual complex of practices and institutions that make up that way of life. Thus in interpreting our community's way of life, we are seeking to uncover and/or explain those goods that constitute oux community's ethical life. The interpretive dimension of public reason involves the particular fit between the public discourse of a community and the goods that inform that community's concrete conception of the good life. Public reason, in other words, is always carried out in light of the institutions, practices and understandings that make up that concrete conception. Michael Walzer, for example, argues that if the boundaries of the political and the cultural/historical community do not coincide if there are disputes about the legitimacy of the institutions, practices and understandings of a community's concrete conceptions of the good--then distributive decisions will have to be worked out politically. And precisely how they will be worked out will depend 'upon the understandings shared among the citizens about the value of cultural diversity, autonomy and so on...'.17 'No minimalist account of justice', argues Walzer, 'can specify the precise form of these arrangements... IT]he forms are historically negotiated, and they depend upon the shared understandings of what such negotiations mean and how they work'. Is But this is a worrying suggestion in societies where particular groups, such as indigenous peoples, have either been forcibly assimilated to and/or excluded from national citizenship. Walzer's argument implies that the viability of a minority group's claim for the protection of their cultural norms, or the revision of mainstream norms, will depend in large measure on the shared understandings of the value, say, of cultural diversity or local autonomy--and even about how negotiations about these values should be conducted politically. However taking 'shared meanings' about the nature of local autonomy or cultural diversity at face value, and indeed those about the nature of the political, might entail ignorance about the relations of power that hold between the state and various groups, as well as those that disadvantage minorities 'within' the minority groups themselves. 19 16 Gopal Sreenivasan, 'Interpretation and Reason', Philosophy and Public Affi~irs 27 (1998), pp. 144 5. 17 Michael Walzer, Spheres of Justice: A Defenee o f Pluralism and Equality (New York, Basic Books, 1983), p. 29. 18 Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, University of Notre Dame Press, 1994), pp. 74-5. 19 A problem Walzer is at least aware of: see 'Nation and Universe' in Grethe B. Peterson (ed.), The Tanner Lectures on Human Values' XI (Salt Lake City, University of Utah Press, 1990), pp. 528-9. 365 Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan Ivison So as important as it is to consider this interpretive and historical dimension of public reason, it raises considerable problems. The good of the relations referred to in the concrete conception must be good not only in virtue of being shared, but also in terms of the values and practices that are actually shared. But how do we establish this? With reference solely to the concrete conception, or by giving some independent account of the good? Public reason, as I understand it, moves between these two spaces of reason. The tendency amongst most contemporary theorists of justice is to translate the particularity of claims based on historical and cultural wrongs into more general (i.e. 'independently valid') categories of primary goods and resources. These categories establish a kind of benchmark for entry into the conversation of justice. But unless one thinks of these categories as independently valid in a neo-Platonic sense, the fit between them and the concrete ethical life of a community still matters. For as much as debates about political morality may be oriented around various principles to do with, for example, equality, individual liberty or fairness, they become embodied in particular institutions and practices. Hence we can speak of particular 'registers of justice/injustice'. 2° This isn't to say that the structure of moral experience is determined exclusively from within a specific cultural or historical context. The moral practices of cultures are far more complex and porous than that. But this raises a crucial question for this paper: just what is the relation between the past and a commitment to ethical norms said to be constitutive of the political morality of the state? III [ have claimed that the history of a political association bears on the content of our obligations and responsibilities as members of that community. In other words, we see it as part of our obligations as citizens to take responsibility for the way the past continues to persist in the present in various ways. What do I mean by 'take responsibility for'? Consider two senses of moral responsibility, gathered around the moral emotions of guilt and shame. On a psychological level, there is a tight connection between feelings of guilt and the demand for dorrective justice. We may act or fail to act in such a way so as to elicit the anger or resentment of others and thus feel guilty. Feelings of guilt direct attention to what we have done and thus towards those whom we've harmed. Guilt is most readily discharged through reparation. This is the way many contemporary legal and political theorists understand claims rooted in historic injustice. Not surprisingly, the claims often appear highly implausible, since they appear to fail the evidentiary and counterfactual conditions necessary for the establishment of guilt. But there is always a remainder to these discussions, as for example in Waldron's discussion of a secondary dimension of 'public remembrance'. 2I His suggestion is that if 20 The phrase is from William Connolly, The Ethos of Pluralization (Minneapolis, University of Minnesota Press, 1995), p. 184; see also David Miller's discussion of a community's 'common ethos' entering into the definition of the needs and interests that count when defining basic rights and obligation; On Nationality (Oxford, Oxford University Press, 1995), pp. 74-8, 69-70. el Waldron, 'Superseding Historic Injustice', p. 6. Political Community and Historical Injustice 366 guilt (and thus reparations) about past injustices is out of place, there may be reasons to feel ashamed about them. But this begs the question, since shame is a moral emotion connected to moral responsibility as much as guilt is. Bernard Williams provides an interesting account of the relation between these two senses of responsibility: Downloaded by [University of Sydney Library] at 01:53 29 October 2017 What I have done points in one direction towards what has happened to others, in another direction to what I am... Guilt looks primarily in the first direction . . . . Shame looks to what I am. It can be occasioned by many things--actions...or thoughts or desires or reactions of others. Even where it is certainly concerned with an action, it may be a matter of discovery to the agent, and a difficult discovery, what the source of shame is, whether it is to be found in intention, the action or an outcome . . . . Just because shame can be obscure in this kind of way, we can fruitfully work to make it perspicuous, and to understand how a certain action or thought stands to ourselves, to what we are and what realistically we want ourselves to be. 22 Williams suggests that shame, in particular, is a moral emotion that refers to certain shared ethical attitudes or ideals and forms of life. And that it triggers, in a way that guilt does not, a certain form of self-reflection connected to these forms of ethical life (and not merely fear of punishment or ostracism). ~3 Thus on the personal level, at least, shame seems to indicate a broader and less voluntaristic sense of moral responsibility than that associated with guilt, and more closely tied to a sense of one's own i d e n t i t y - - ' o f who we are and what realistically we want ourselves to be'. Struggling with an imperfect past not entirely of our own making, but in light of the ideals we hold ourselves by is, according to Williams, a form of ethical reflection that can be occasioned by feelings of shame or regret. It is a form of moral responsibility to do with who I am as much as it is with what I have done. And what I am is partly constituted by the historically and culturally shaped 'frameworks of articulation' that I find myself amongst and draw upon in order to articulate what I think of as good or valuable. 24 I am what 1 do, whether or not I have intended or chosen to do all that I have done. Williams puts it thus: ' O n e ' s history as an agent is a web in which anything that is product of the will is surrounded and held up and partly formed by things that are not'. 2s IV Is there a public version o f this kind o f moral responsibility, a sense of public or civic responsibility for the past occasioned by feelings of regret or shame? There is, and it is tied to one's membership in a political community. A political community embodies various conceptions of membership, and thus a sense of political identity and continuity 22 Bernard Williams, Shame and Necessity (Berkeley, University of California Press, 1993), pp. 92-3. 23 As Williams puts it, 'the internalization of shame does not simply internalize an other who is representative of the neighbours. The internalized "other" is conceived of as one whose reactions 1 would respect, and one would respect the same reactions if directed at him'. Shame and Necessity, p. 83. 24 This phrase is from Charles Taylor, Sources of the Self" The Making of the Modern Identity (Cambridge MA, Harvard University Press, 1989), pp. 26-30. 25 Bernard Williams, Moral Luck (Cambridge, Cambridge University Press, 1981), pp. 29 30. Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan Ivis o n 367 through time. And these conceptions are connected to the practices, institutions and understandings that make up the concrete ethical life of that community, and especially the history of that community. A sense of civic responsibility for the past will be closely connected to the way political membership is conceived. Note that political membership can be understood along two dimensions. Citizenship can denote the fights and obligations that individuals and groups have, but also a certain affective dimension as well, to do with a sense of 'belonging to', or what I referred to above as a sense of being 'at home' amongst a society's practices and institutions. Liberals often argue that individual and group rights provide the best source of allegiance to a political community, or at least, the only source of allegiance worth defending. Critics comPlain that if political membership is defined exclusively in terms of rights, it can distort valuable modes of collective action and self-understanding that depart from the grounds of rights. Another worry is that liberal understandings of rights tend to distort or unfairly assimilate non-European ways of life and modes of belonging, including those of indigenous peoples. This familiar debate between liberals and communitarians is too crude, however, since the more important question is to consider the ways in which norms of belonging and rights conjoin or come apart in particular circumstances. Arguably, rights are only effective in a political culture in which people accept and support the basic institutions intended to realize and then protect them. Rights are often needed most, of course, in contexts where existing norms and institutions, including modes of political belonging, discriminate against people unjustly. The challenge in these contexts is to generate the necessary allegiance to basic norms and institutions that treat everyone equally where the historical and cultural norms have been to do otherwise. But equally, given this interdependence between rights and political culture, fights and discriminatory norms of exclusion (and forcible inclusion) can become fused and embodied in the basic institutions and practices meant to uphold the values associated with rights. The treatment of women and particular ethnic and cultural groups, including indigenous peoples, in various liberal democracies present clear examples of this kind of phenomena. The historical injustices committed against indigenous peoples matter for contemporary practices of public reason. The political morality that informs and shapes those practices is one that was defined, in part, by both the exclusion of indigenous peoples from common citizenship rights, as well as their forcible inclusion to the state based on the denial of the legitimacy of their own cultural and normative orders (including their ability to adapt those orders to changing circumstances). A sense of belonging is a necessary aspect of a people being capable of willing collectively in its own interests, but it has often been encouraged and secured through discriminatory and exclusionary state practices, especially with regard to race. 26 So taking responsibility for past injustices against indigenous peoples isn't simply to wish that things had gone differently, but to Anthony W. Marx, Making Race and Nation: A Comparison of South Africa, the United States and Brazil (New York, Cambridge University Press, 1998); Charles Mills, The Racial Contract (Ithaca, Conlell University Press, 1997); Rogers M. Smith, Civic Ideals: Visions of Citizenship in US History (New Haven, Yale University Press, 1997); John Chesterman and Brian Galligan, Citizenship Without Rights: Aborigines and Australian Citizenship (Cambridge, Cambridge University Press, 1997). 368 Political Community and Historical Injustice accept the ways in which a particular history of exclusion and inclusion is linked not only to the basic institutions of society, but to its present moral character. V There are two ways o f thinking about how collective responsibility for the past might be characterized. On a contractual model, individual members of a political community, having benefited from it in various ways, have prima facie duties to help sustain it. Thus a Downloaded by [University of Sydney Library] at 01:53 29 October 2017 political community is thought of as a collective endeavour, spanning generations, which provides important benefits for its members. Its social, material and cultural infrastructure help make decent lives possibleY On this model, a community might be said to embody certain values or principles, but only to the extent that they are the values and principles held by the particular individuals who make it up. Thus responsibility for 'its' actions would be understood to extend only insofar as they could be linked to the actions o f its citizens and officials one by one. Responsibility for past injustices, on this view, would be grounded on the basis of the specific actions of individuals, or on people having benefited from wrongful actions, or in relation to explicit agreements or treaties struck between particular indigenous peoples and the state. The problem with this view is that although it is undoubtedly a way of conceiving of collective responsibility, it is far too narrow. We routinely talk of people being held responsible for their unintended actions, or for the actions of a group of which they are a member. Moral responsibility can not be reduced to a matter of discerning the intentions of an autonomous agent: intentions have to be balanced against other elements as well. 28 And this is even more so in the case of collective agents. So consider a second way of characterizing collective responsibility. Here the emphasis is less on duties of fair play and more on the relation between membership, identity and well being. Collective responsibility would inhere in the personification of the community as a collective agent, as possessing a 'unit of agency'. 29 As I have stressed, a political community is constituted not only by the actions of those in the present, but also by those in the past, through the attempt to maintain an identity over time. Even on minimalist accounts, a political community must be counted as a unit of agency in order to be differentiated from other kinds of social groupings. Thus 'we', as a political community, are responsible for the past just insofar as it affects the moral character & o u r society, that it has an 'important effect on the claims to value and purpose in our society', and that it has shaped our society in ways both good and bad. 3° Historical injustice, i n other words, is not merely regretful, but demands a response. 27 For a version of this argument see Jeff McMahan, 'The Limits of National Partiality' in Robert McKim and Jeff McMahan (eds.), The Morality of Nationalism (New York, Oxford University Press, 1997), pp. 107 38. 28 For further discussion see William, Shame and Necessity, ch. 5. 29 That is, when citizens have 'adopted a way of resolving conflicts, making decisions, interacting with other states, and planning together for an ongoing future'; Christine Korsgaard, Creating the Kingdom of Ends (New York, Cambridge University Press, 1996), p. 373. 3o Jeremy Webber, 'The Jurisprudence of Regret: The Search for Standards of Justice in Mabo', Sydney Law Review 17 (1995), p. 11; see also Gerald Postema 'On the Moral Presence of our Past', MeGill Law Journal 36 (1991), pp. 1178-80; 'Collective Evils, Harms and the Law', Ethics' 97 (1987), 414~40. 369 Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan lv~on But how can history be constitutive of a political commtmity in such a way so as to have consequences for the obligations citizens owe to each other? Yael Tamir refers to identitybased obligations of the kind mentioned here as 'associative obligations'; obligations towards others with whom we share special relations, including our fellow co-nationals. 31 The basic idea is that we come to value certain states of affairs qua our membership in a community. These values express, in part, not simply what we want but who we are. 32 But it is not the fact that the values are actually shared that constitutes political community, since no such consensus exists in almost any community. Rather, certain 'embodied arguments '33 about values and practices are shared, including particular registers of justice/injustice. It is important to emphasize that it is arguments that are shared, since this makes it clear that any obligations we have in virtue of our membership of a political community will be tied not only to our affective relations with others, but also to practices of argument and reason-giving that reflect upon and criticize these relations. The content of a community's political morality is thus not static. Critical reflection and change is prompted, more often than not, by the struggle of individuals and groups grappling with the mismatch between their sense of the moral harm or injustice they suffer from, and the established registers of justice/injustice within which they must articulate their claims. V! On the second relational model then, collective responsibility inheres in our being a member of a political community and having certain special obligations towards it in virtue of that membership. I want to argue that responsibility for past injustices is a species of these kinds of obligations. It isn't merely that I may be a beneficiary of wrongful actions carried out in the distant past, but that I have an obligation to try and address the past given its effects in the present in relation to matters of basic justice in this community, my eonmmnity. The reasons we have for valuing particular relations with others provides a source of reasons for thinking that we have certain special responsibilities in relation to them. 34 But this presumes that an account of these relations can be given that does not rely entirely on subjective attitudes towards them, since to do so would leave our public practices of responsibility open to abuse. Thomas Hurka, for example, has argued that citizens have special obligations to their political institutions and societal cultures insofar as these institutions and cultures are in fact good. What attaches citizens to them are the historical facts: 'this is the culture they grew up in, that their co-nationals share with them a history of being shaped by, participating in and sustaining this culture'. 35 There is no such thing as special obligations to institutions or cultures that are evil. 31 Yael Tamir, Liberal Nationalism (Princeton, Princeton University Press, 1993), pp. 95-116, 134 9. 32 Postema, 'Collective Evils, Harms and the Law', 426-7. 33 The phrase is from Alasdair MacIntyre, After Virtue (London, Duckworth, 1981), p. 207. For an interesting development of this theme see Jeremy Webber, Reimagining Canada (Montreal, McGill Qneens Press, 1994). 34 Samuel Scheffler, 'Relationships and Responsibilities', Philosophy and Public Affairs 26 (1998), pp. 191 2, 202. 35 Thomas Hurka, 'The Justification of National Partiality' in McKim and McMahan (eds.), The Morality of Nationalism, p. 15 I. Downloaded by [University of Sydney Library] at 01:53 29 October 2017 370 Political Community and Historical Injustice Whatever one makes of this last claim, Hurka's discussion raises an interesting question. If we have special obligations to our compatriots in virtue of the interactions and institutions that produce good, as he argues, are we not also responsible for the wrongs that have been produced, sometimes by the very same institutions seen to be goodproducing? I believe we are. But what if some people reject their identity as citizens precisely because of the morally bad things associated with the history of nation-building? Do they thereby write themselves out of the responsibilities I am arguing go along with such membership? Unless they migrate and renounce their citizenship, a radical step for most people, they do not (and even then there are limits to what people can renounce when renouncing their citizenship). The tension between the associative obligations of membership in a cultural or political community and a commitment to a moral code that condemns various of its practices just is a feature of the relation between ethics and politics. 36 It is inescapable. 'Special' obligations are really only special insofar as we think of them against a baseline of apparently transparent moral and political obligations, underpinned by essentially voluntarist conceptions of responsible agency. These conceptions of obligation and responsibility are connected to liberal ideals of freedom, and especially to a concern for placing limits on the public processes of distributing responsibility (in particular the criminal law). But it is precisely this picture of the relation between ideals of responsible moral agency and the public processes of justice which is problematic. For it seems to rule out, or at least obscure, from the very beginning, consideration of the complex interdependence between a particular ethos of identity and belonging and our ethical attitudes about what we owe to each other and why, including our attitudes about moral responsibility. More explicit consideration of this interdependence often leads, in turn, to a re-evaluation of the ideals of freedom and political, social and legal power that underpin, as I have suggested, our extant public practices of responsibility. 37 So if citizens have general obligations towards each other grounded on fairness or equal consideration, they also have associative obligations grounded in the history of the political relations they value. 3s Normally we think of citizenship~along both dimensions of rights and belonging--as providing the recognition and capacity not only to participate (directly or indirectly) in the shaping of laws and policies that shape me, but to pursue as effectively as possible my own conception of what is good or valuable. What distribution or arrangement of rights and modes of belonging then, i.e. of the goods of 'critical See the discussion in Tamir, Liberal Nationalism, pp. 1015; Connoliy, Ethos of Pluralization, pp. 41 74; An interesting example of this dilemma is discussed in David Dyzenhaus, Judging the Judges: Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford, Hart Publishing, 1998). 37 I don't consider these wider questions of freedom and power here. For further discussion see Duncan Ivison, The Self at Liberty (Ithaca, Cornell University Press, 1997). 38 There is considerable debate as to whether or not if special obligations are merely derivative of general obligations of fairness or impartiality, they are all that special. Or, on the other hand, that associative-type obligations are often implicitly appealed to anyway by liberals, given the need to explain why we owe the bulk of our duties of justice to our fellow citizens as opposed to anyone else. My point is that the tension between these two views is built into any plausible account of political obligation, and cannot be dissolved or transcended. See Tamir, Liberal Nationalism, pp. 95 116; and Samuel Scheffler, 'Liberalism, Nationalism and Egalitarianism' in McKim and McMahan (eds.), The Morality of Nationalism, pp. 204-5. 36 Downloaded by [University of Sydney Library] at 01:53 29 October 2017 Duncan lvison 371 freedom' and the means of 'being at home' in the world, are required to meet the aspirations of contemporary indigenous peoples? It is here that a idea of public reason capable of recognizing the fact of historical injustice is required. Hence my departure from Rawls's discussion. Instead of being guided by a conception of justice suspended from metaphysical, cultural and historical moorings, and upon which citizens are conceived to have already converged, a critical public reason will have to be constructed out of these very materials. For the task is to try to justify the basic structure of a society to a people amongst whom for some, the experience of the basic structure has been nothing less than as a set of relations of force and little else. This calls for a form of impartiality in the public sphere, but one conjoined with an acute historical awareness. Impartial consideration of the claims of indigenous peoples is connected necessarily to consideration of the particular social, cultural and historical contexts of their relations with the colonial state. Working out, in other words, what a coara,aitment to equality means will entail taking into consideration the facts of historical injustice. The content of what is 'reasonable' should be thought of as a fimction of the working out of public reason itself, rather than as derived independently of it. Thus pursuing questions about 'constitutional essentials' in the public sphere without an acknowledgment of the historical injustices that gave rise to them risks undermining the possibilities for their just resolution along both dimensions of rights and belonging. What risks being undermined is the legitimacy of the basic institutions meant to address social and economic disadvantage, and the social trust that is crucial for mutual coexistence in deeply diverse political communities. In other words, what are at risk of being undermined are the conditions under which certain members of the political community could ever feel 'at home' amongst its basic institutions and practices. The reasonableness of 'indigenous rights'--the extent to which they could become the object of collective willing--can not be established independently of the facts of the history of relations between indigenous peoples and the colonial state: How does the past persist in the present and thus engender a special responsibility on our part to account for it? Historical legacies are publicly 'remembered' when they are taken to present particular 'problems' that present-day political actors have to address. So the past doesn't literally determine present day policies, but interpretations of the past are used to support or deny various possibilities in the present. In Australia, for example, colonial settlement was premised on the very denial of the legitimacy of indigenous conceptions of land-holding and, ultimately, self-government. These premises became embodied in the common law of Australia. To argue that they are unjust and should be rejected--as the High Court began to, at least in relation to 'native title' in 1992--is to do more than simply try to slip 'Native title' into an existing structure of Australian property law. 39 Rather, it is to initiate a process of reinterpreting the grounds of mutual interaction between indigenous and non-indigenous Australians that have hitherto been in place. It is to force reconsideration of the relation between a country's See Jeremy Webber, 'Beyond Regret: Mabo's Implications for Australian Constitutionalism' in D. Ivison, P. Patton and W. Sanders (eds.), Political TheoG and the Rights of Indigenous Peoples (Cambridge, Cambridge University Press, 2000); also Duncan Ivison, 'Decolonizing the Rule of Law: Mabo ~' Case and Postcolonial Constitutionalism', Oxford Journal of Legal Studies' 17 (1997), pp. 253-279. Downloaded by [University of Sydney Library] at 01:53 29 October 2017 372 Political Community and Historical Injustice past and its commitments embodied in law and the practices and procedures of its 'basic structure' and 'constitutional essentials'. It is, in other words, to revisit the ethical basis of these relations. The point is not to will shame about injustice where none existed before, a project doomed to failure and likely to induce ethical backlash more than anything else. Rather, it is to suggest that a purely voluntaristic or intentional account of moral and political responsibility won't do, either as an ideal to govern the distribution of responsibility in politics, or practically, as a way of understanding how our attitudes about responsibility actually work in all kinds of social, legal and political contexts. The less voluntaristic and slightly obscure (i.e. heteronomous) character of those ethical attitudes associated with a sense of shame and our affective relations to others, can at least begin to point to different and perhaps more fruitful ways of conceiving of responsibility politically. At the very least it points to how ideas of who 'we' are, both individually and collectively, and who we want to be, are connected to our ethical attitudes about what we owe to each other. Moreover, it points to how political identity, both individual and collective, is inherently contestable; constituted as much by relations of power, culture and history as it is by ideals of autonomy and authenticity. In politics, of course, a public view on matters of justice has to be arrived at and decisions made in the midst of persistent disagreement. So a paralysing sense of shame (or indeed guilt) with regard to the past is worse than useless; it can undermine the collective capacities of members of a political community to address the injustices that continue amongst them. In the case of indigenous peoples, the political questions that must be addressed are of enormous moral and practical importance. They include: Are 'native title rights', defined according to the customs and practices of Aboriginal law as opposed to Anglo-Australian law, compatible with existing forms of property holding and citizenship rights in general? Is it reasonable for Aboriginal customary laws to have jurisdiction over criminal and other matters on Aboriginal lands, or disputes involving Aboriginal parties? Are either kinds of 'rights' compatible with existing Anglo-Australian discourses on rights? Are they conducive to fostering just and effective modes of political belonging to the political community as a whole? Thus any appeal to ethical attitudes connected to a sense of shame in helping to articulate a plausible conception of collective responsibility must indeed be forward looking, as much as they are necessarily backward looking, if such questions are to be addressed adequately. But there is no such thing as purely forward looking justice in this case. Hence my focus on the practices of public reason. The challenge of mutual coexistence between indigenous and non-indigenous communities (as well as within them) involves differences over accounts of Right, and thus there is no option but to try and work them out politically, and that means through some form of public reason. We need an idea of public reason, I have argued, that doesn't presume, a priori, that the parties already share a basic conception of justice, but rather one premised on the very absence of such a shared conception. Mutual coexistence requires impartiality, but one that respects the different sources of normativity and belonging in a polity. A sense of impartiality also helps underwrite a framework of mutual negotiation and cooperation between and within these different ethical and normative orders. But a political impartiality must be seen to be rooted in politics itself, and not be allowed to drift too far from its moorings. This does not entail Duncan Ivison 373 being overly sanguine or romantic about the possibilities of politics, as critics of impartiality often are. 4° But if impartiality is an indispensable aspect of justice, then wherever the 'circumstances of politics' are most explicitly and honestly acknowledged, justice has the greatest chance of being done. And this means, as I have been arguing, trying to account for the continuing presence of the past in the way we live now. Received: June 1999 Revised: March 2000 Downloaded by [University of Sydney Library] at 01:53 29 October 2017 University of Sydney 40 Cf. Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca, Cornell University Press, 1993).