Waitangi tales

Australasian Journal of Philosophy

Volumn 78, Issue 3, 2000, Pages 309-333

  Goodin, Robert E ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 4544240322     PISSN: 00048402     EISSN: None     Source Type: Journal    
DOI: 10.1080/00048400012349621     Document Type: Article

References (52)

1. Multicultural Citizenship (Oxford: Clarendon Press, 1995), p. vii
2. This is emphasised in both Article Two, and again in the final clause, of the Treaty of Waitangi; Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi, ed. I. H. Kawharu (Auckland: Oxford University Press, 1989), pp. 316-8. The Secretary of State for War and Colonies, Lord Normanby, was insistent on this point in his formal instructions to the British negotiator, Captain Hobson; W. David Mclntyre and W. J. Gardner, eds., Speeches and Documents on New Zealand History (Oxford: Clarendon Press, 1971), pp. 10-7 at p. 14
3. Lord Nottingham, Maynard v. Moseley [1676] 3 Swan. 651, 655, 36 E.R. 1009, 1011. In fact, of course, that is broadly what Courts of Chancery and the law of equity did throughout the ages; P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), pp. 148 ff
4. Vattel, The Law of Nations, bk. 2, ch. 12. See similarly Wolff, The Law of Nations, sec. 407
5. William Shakespeare, The Merchant of Venice, Act IV, Scene I
6. I refer here specifically to the practice of putting day-to-day social relations on a contractual footing ('contractualism', in contemporary jargon). It remains perfectly possible that practices which are not themselves contractual in form might nonetheless have some deeper 'contractarian' foundations. See David Gauthier, 'Political contractarianism', Journal of Political Philosophy, 5 (1997), 132-48
7. Keith Sinclair, A History of New Zealand, 3rd edn (Harmondsworth, Mddx.: Penguin, 1980)
8. Orange, Treaty of Waitangi, pp. 259-60
9. A useful comparative analysis of the two texts by I. H. Kawharu is contained in Waitangi, ed. Kawharu, pp. 316-21. The differences are discussed more fully in Section IV below
10. Knowing that, they still appeal surprisingly frequently to precisely these treaties, insisting we govern relations in accordance with them. See Russel Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980); Prucha, American Indian Treaties, esp. ch. 17; James Tully, Strange Multiplicity (Cambridge: Cambridge University Press, 1995), esp. pp. 116-39; and Robert A. Williams, Jr., 'The algebra of federal Indian law', Wisconsin Law Review, (1986), 219-99; and, on the role of the Treaty of Waitangi in recent Aotearora/New Zealand political debates, Sharp, Justice and the Maori
11. Shaw, Title to Territory in Africa, pp. 38-45. Note that the whole of chapter 5 ('On Property') of the Second Treatise of Government is 'organized around a contrast between Europe, where appropriation without consent is not permitted because political societies exist, and America, where appropriation without consent is permitted because it is in a state of nature'; Tully, An Approach to Political Philosophy, p. 145. These arguments were used to the particular disadvantage of Australian Aborigines, as discussed in Section III below
12. As suggested by Kawharu, Waitangi, p. 319, insistently translating 'kawanatanga' as meaning merely 'government'. See further J. G. A. Pocock, 'Law, sovereignty and history in a divided culture: the case of New Zealand and the Treaty of Waitangi', McGill Law Journal 43 (Oct 1998), 481-506
13. Sinclair, A History of New Zealand, pp. 20-1
14. Maud Wilder Goodwin, Dutch and English on the Hudson (New Haven, Conn.: Yale University Press, 1920), pp. 36-7
15. Michael Paul Rogin, 'Liberal society and the Indian question', Politics & Society 1 (1971), 269-312. Prucha, American Indian Treaties, ch. 7
16. For a fuller specification of exploitable vulnerabilities, see Robert E. Goodin, Protecting the Vulnerable (Chicago: University of Chicago Press, 1985), ch. 7 and Reasons for Welfare (Princeton, NJ: Princeton University Press, 1988), ch. 5
17. Henry Sumner Maine, Ancient Law, 17th edn (London: John Murray, 1901)
18. Jean-Jacques Rousseau, A Discourse on the Origins of Inequality, in The Social Contract and Discourses, trans, and ed. G. D. H. Cole (London: Everyman/Dent, 1913), pp. 27-114, the quotation from the opening lines of pt. 2, at p. 76 of this edition
19. The Sexual Contract (Oxford: Polity, 1988)
20. McHugh, 'Constitutional theory and Maori claims' and 'Crown-tribe relations', pp. 205-8. The analogy in view is between 'individuals subjecting themselves completely to other individuals' and 'groups/peoples subjecting themselves completely to other groups/peoples'. Individually of course we are all the time subjecting ourselves to groups, taking 'oaths of allegiance' and such like. Most of us recognise the practical inevitability of living under some government or another. There is however no corresponding inevitability or practical necessity of one group of people being ruled over by some other
21. Hobbes, Leviathan, ch. 20. Locke, Second Treatise, secs. 23-4. Earlier writers such as Aristotle, Politics, trans. and ed. Ernest Barker (Oxford: Clarendon Press, 1946), bk. I, ch. 6 foreshadowed this argument, among others; and even Grotius, Law of War and Peace, bk. 2, ch. 5, secs. 27-30 was inclined to treat the just enslavement of captives as just a special case of slaves justly swapping liberty for sustenance, under force of necessity. Cf. Rousseau, Social Contract, bk. 1, ch. 4 and Discourse on Inequality, pt. 2, p. 95
22. In the words of Vattel, Law of Nations, bk. 2, ch. 12, p. 168. See similarly Wolff, Law of Nations, secs. 399-403
23. 'Duties of nations to themselves', discussed below, apart
24. Enshrined, some international lawyers might say, in the Charter of the United Nations, Articles 1(2) and 55. For an international law discussion, see Brownlie, Principles of Public International Law, ch. 24. For some recent philosophical treatments, see: Brian Barry, 'Self-government revisited', The Nature of Political Theory, ed. David Miller and Larry Siedentop (Oxford: Clarendon Press, 1983), pp. 121-54; Allen E. Buchanan, Secession (Boulder, CO: Westview, 1991);
25. Avishai Margalit and Joseph Raz, 'National self-determination', Journal of Philosophy, 87 (1990), 439-61
26. Grotius, Law of War and Peace, bk. I, ch. 3, sec. 8, paras. 2 and 1 respectively
27. Wolff, Law of Nations, sec. 80. Wolff, of course, insists that this is permissible only if it is 'not strong enough to protect itself against the wrongs done by other nations'
28. Second Treatise, sec. 23
29. Joel Feinberg, however, defends the notion of posthumous harm to individuals; 'The rights of animals and unborn generations', Rights, Justice and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980), pp. 159-84, and Harm to Others (New York: Oxford University Press, 1984), ch. 2. In any case the identity and even existence conditions of a nation are radically distinct from those surrounding individuals; Robert E. Goodin, Political Theory and Public Policy (Chicago: University of Chicago Press, 1982), ch. 11. The upshot is that it is possible for interests to survive the 'extinguishing' of one state and its replacement by a successor state; Brownlie, Principles of Public International Law, ch. 28
30. See Goodin, Political Theory and Public Policy, ch. 3 and sources cited therein
31. They are surveyed in Robert E. Goodin, Utilitarianism as a Public Philosophy (Cambridge: Cambridge University Press, 1995), ch. 9.1 say 'most' in this and the following sentences, because the final argument surveyed there, of course, is precisely the Mill argument introduced and defended below
32. Feinberg, 'The rights of animals and unborn generations'
33. John Stuart Mill, On Liberty, ch. 5
34. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, Conn.: Yale University Press, 1923)
35. Though in a Separate Opinion in Barcelona Traction (Second Phase), International Court of Justice Reports (1970), 286-333 at 304, Judge Ammoun did allude to principles of self-determination as among those 'peremptory norms of general international law'-although the only authority he quoted in support of that claim consisted merely of a speech by UN Secretary General U Thant
36. Thomas C. Schelling, The Strategy of Conflict (Cambridge, MA: Harvard University Press, 1960), p. 43.
37. Russell Hardin, 'Exchange theory on strategic bases', Social Science Information 21 (1982), 251-72, at pp. 260-2
38. Gerald C. MacCallum, Jr., 'Legislative intent', Yale Law Journal 75 (1966), 754-87
39. In what follows, I use the English text and the more colloquial version of the two Maori translations found in Kawharu, Waitangi, pp. 316-21. For further discussions, see Richard Mulgan, 'Can the Treaty of Waitangi provide a constitutional basis for New Zealand's political future?' Political Science 41, # 2 (Dec. 1989), 51-68, at pp. 55-6; and Pocock, 'Law, sovereignty and history in a divided culture'
40. Canadian Royal Commission on Aboriginal Peoples, Restructuring the Relationship, ch. 2
41. Antonin Scalia, 'Originalism: the lesser evil', University of Cincinnati Law Review 57 (1989), 849-65 is a conspicuous exception here. More representative are, e.g.: Sunstein, After the Rights Revolution and 'Five theses on originalism', Harvard Journal of Law and Public Policy 19, #2 (Winter 1996), 311-6; William N. Eskridge, Jr., 'Public values in statutory interpretation', University of Pennsylvania Law Review 137 (1989), 1007-1104 and Dynamic Statutory Interpretation (Cambridge, MA: Harvard University Press, 1994); and Ronald M. Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), ch. 5. See, more generally, the 'Symposium: originalism and the Constitution', Harvard Journal of Law and Public Policy 19, #2 (Winter 1996), 237-525
42. Canadian Royal Commission on Aboriginal Peoples, People to People, Nation to Nation (Ottawa: Ministry of Supply & Services Canada, 1996), ch. 2
43. Holmes, in Missouri v. Holland, 252 US 416, 433 (1920). Quoted in Sunstein, After the Rights Revolution, p. 126
44. Jeremy Waldron, 'Superseding historic injustice', Ethics 103 (1992), 4-28 at p. 9. See similarly David Lyons, 'The new indian claims and the original rights to land', Social Theory & Practice 4 (1977), 249-72
45. David Lyons, 'The new indian claims and the original rights to land', Social Theory & Practice 4 (1977), 249-72
46. Richard Mulgan, Maori, Pakeha and Democracy (Auckland: Oxford University Press, 1989) and 'Can the Treaty of Waitangi provide a constitutional basis for New Zealand's political future?'
47. A 'history' that is of course itself changing; see Pocock, 'Law, sovereignty and history in a divided culture'
48. Robert Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974), p. 160
49. Atiyah, Rise and Fall of Freedom of Contract; Cass Sunstein, 'Lochner's legacy', Columbia Law Review 87 (1987), 873-919
50. Mark Tushnet, 'Plessy v. Ferguson in libertarian perspective', Law & Philosophy 16 (1997), 245-58
51. Goodin, Political Theory and Public Policy, ch. 5. See similarly Avishai Margalit, The Decent Society (Cambridge, MA: Harvard University Press, 1996)
52. Bruce Ackerman, We, the People (Cambridge, MA: Harvard University Press, 1991)