Wednesday, August 25, 2004

Equivalence is not Equality

I have to agree with Marilyn Waring. The Civil Unions Bill has nothing to do with equality. According to a strangely written story in The Herald yesterday,
Professor Waring… called for amendments to the 1954 Marriage Act and the 1995 Births Deaths and Marriages Registration Act to allow for same-sex marriages [saying] "Equivalence is not equality." The professor in public policy at Massey University, Albany, believes excluding same-sex couples from marriage is discrimination. She claims the bill is "inconsistent with the rights and freedoms contained in the Bill of Rights".

It’s not that I don’t agree that there ought to be something like a civil union arrangement for those who want it. Heck, it might be just the thing for me and my partner. The problem is that I am a heterosexual. Part of the dominant culture. Heterosexuals don’t need to struggle for respect and recognition of their relationships. Gays do. The fact is that they are being discriminated against, and the Civil Unions Bill does nothing to change this.

True, many of the people who support the Civil Unions Bill have been clear that the Bill doesn’t go far enough. Many people have understood from day one that the Bill achieves nothing but equivalence. But emotionally, psychically, the fight to get the Civil Unions Bill through Parliament has been all about equality. That's what the debate has been all about.

My feeling is, if you are going to fight for something, fight for it. Especially when the environment is right, and particularly when it appears that the rest of the world is slowly coming around to the fact that preventing homosexuals from marrying amounts to discrimination.

It’s been a perfect issue for Labour. By proposing a civil union, they have been able to position themselves as progressive, attracting the support of all the people who they will need to have on side as the next election looms closer. These might be the same people who lost faith in Helen after her reactionary stand toward Maori over the foreshore and seabed.

At the same time, they have given themselves waffle room. Because they can then stand up and say that the Civil Unions Bill has nothing to do with marriage. Hopefully that will deflect some of the fire coming from Labour’s socially conservative centre. It’s classic bad faith. And it’s classic politics.

It’s just a pity that so many good people have had to fight so hard to defend apartheid for homosexuals.

Wednesday, August 18, 2004

Welfare, Left and Right

In my opinion, Just Left is writing some of the most important stuff in the New Zealand blogosphere at the moment. His latest entry is a coming to grips with questions posed by Colin James about the kinds of presuppositions that different political perspectives bring to welfare and welfare policy. Unfortunately, Colin James’ article, like much of his recent writing, is nearly irrelevant in its mushiness and dwells on ground that has been covered over and over again: moral differences deployed by the left and right in the field of welfare policy seem to have lost their traditional definition. It's typical of the wise triumphalism that many right-of-centre commentators have indulged in since the demise of the USSR. Though it is, perhaps, a little out of date.

Listen to statements like these:

…the left focuses much more on the horror childhood than on ownership of misdeeds and redemption. It reaches for state instruments to wash away the sins and create a new life. But this presumes the state can change the inner person, without which there is no absolution and renewal. The state can do that only incidentally through individual action by gifted or insightful state servants and teachers, not through systems.
Excuse me? Let's leave aside the obscurity of 'absolution and renewal' for a moment. It is the welfare state that puts systems like schools and social workers in place to ensure that gifted and insightful state servants and teachers have the opportunity to interact with the people who need help. And while it may be true that there has been a lack of moral definition between left and right in the last several decades, it’s a mistake to think that this process has only worked one way: that only those on the left have migrated to wiser moral climes. The politics of the welfare state have not left conservatism and the right unaffected. And in a very real sense, the welfare state itself has provided the political and social basis of right-wing and liberal economic activity, even if this connection has not always been explicitly stated in the writings of analysts like James. Seeing this point clearly helps us to think about the politics of the welfare state in a more nuanced way.

A good example of the right travelling to the traditional moral ground of the left is the recent emphasis on early childhood education and intervention. For years, conservative and right-wing social policy directed at children had held parents and their moral life as ultimately responsible for the success (or otherwise) the child. But in the last few years, studies and policy work have shown that life chances of children improve significantly if there are systems put in place to help parents with the work of parenting. Early childhood education programmes, parental education and support programmes are commonplace now and importantly enjoy widespread support.

But for James, the welfare state is all about welfare. About benefits for bludgers. There is an odd anachrony in James' writing, as though he had accidentally cut and pasted something from an article written years ago. Implying gently that the left is responsible for growing welfare rolls, James writes:

What is not commonsense is to palliate ever-growing welfare rolls. That is not sustainable, fiscally or politically. The left is beginning to grasp this but has not yet worked out what to do. If it doesn't, one day its core supporters will desert it for politicians who say they can.
Now, I don’t know if James has actually been paying attention to economic indicators lately, but it seems clear to me that the left has grasped this for some time, and they have indeed worked out what to do. It’s true that, due to the Lange government’s reforms, Labour in New Zealand took some time to get to the same place as Blair in Britain or the various social-democratic regimes in Europe, for example. It took the clear break of Helen Clark and Michael Cullen for New Zealand Labour to finally dispense with the political and economic disaster that was Lange. But let me spell it out: those who James would define as left have been focussing on economic growth and low unemployment. And they have been using the welfare state to do it.

This would seem to fly in the face of much conventional punditry these days. After all, hasn’t the welfare state been fatefully undermined by neo-liberalism and globalisation? Listen to Ulrich Beck:

The premises of the welfare state and pension system, of income support, local government and infrastructural policies, the power of organised labour, industry-wide free collective bargaining, state expenditure, the fiscal system and ‘fair taxation’ – all this melts under the withering sun of globalisation and becomes susceptible to (demands for) political moulding. Every social actor must respond in some way or another; and the typical responses do not fit into the old left-right schema of political action
Dire stuff. But Beck seems unable to swallow his own medicine about the mutability of left-right distinctions. More specifically, he makes the mistake of seeing the mechanisms of the welfare state solely as creations of the left. Arguments about the end of left-right politics are always posed in the context of the vanishing welfare state and the irresistable power of globalisation. The assumption is that the welfare state has nothing to do with free markets and global capital. It ignores the role that the welfare state has played in the development of modern capitalism, and in the development of globalisation itself. Other theorists are more careful. In his article Global Markets and National Politics, Geoffrey Garrett writes that

…in a world of capital mobility, there is still a virtuous circle between activist government and international openness. The government interventions emblematic of the modern welfare state provide buffers against the kinds of social and political backlashes that undermined openness in the first half of the twentieth century – protectionism, nationalism, and international conflict.
Citing the work of Polanyi and J.G. Ruggie, Garrett argues that the welfare state compromise really was a compromise, in that the mechanisms of the welfare state helped to embed economic liberalism. For too long we have seen only one side of the deal and have failed to recognise the extent to which the welfare state supported the development of open international trade and economic liberalism. The failure to see the double-sided nature of the welfare state can lead to a politics of nostalgia best seen in the work of Bruce Jesson and Jane Kelsey.

Garrett writes:
…the embedded liberalism compromise of the Bretton Woods period combined an international regime of trade openness, fixed exchange rates and capital controls with the domestic political economy of the Keynesian welfare state. The final observation that should be made about this combination is that many analysts believe that embedded liberalism was most prominent and worked best in countries characterised by strong and centralised (corporatist) labour movements and powerful social democratic parties. Centre-left parties are more likely to be sensitive to the political demands of short-term market losers. Corporatist labour movements have incentives to tailor wage growth to benefit the economy as a whole…
Now that’s not a story you read too often.

Saturday, August 14, 2004

A Response to Critics, or, The Law is an Ass that tells Great Stories

The questions posed earlier about the relationship of the Treaty of Waitangi to issues of sovereignty and the legitimacy of the state generated some interesting comments in the New Zealand blogosphere.

Just Left propelled things forward by usefully distinguishing two different versions of New Zealand’s constitutional history in current circulation. Version 1 is similar to the one I’d offerred earlier. The plot of this story is that the Crown was unable to exercise sovereignty in New Zealand until its agents had obtained a treaty which effectively transferred aboriginal rights to the Crown. But more on this later. Just Left summarises version 2 like this:

There's another version, which one might call Version 2. In this version, the British Crown acquired sovereignty by right of "conquest" (the North Island) and "discovery" (the South Island), as gazetted in London in October 1840. The Treaty of Waitangi did not have any impact on this, which is why in judicial decisions in the latter part of the 19th century, and into the 20th, it was often declared to be a "simple nullity." In this version of our history, the Crown has been sovereign since it asserted its sovereignty, and no legal obstacle exists to it continuing in that mode. Aboriginal title was, arguably, extinguished by the English common law that arrived with the Crown.

The problem as I see it with this version is signalled in the last sentence. Where the British empire expanded into regions inhabited by indigenous peoples, the common law dictated that aboriginal rights of sovereignty pre-existed the right of the Crown. Sovereignty could be transferred by force or by treaty, but it had to be transferred. That’s why the British were so keen to establish treaties. It took a great deal less work than pure force, and it provided great optics. Of course, individual circumstances might mean that this process was not scrupulously followed. Take, for example, the situation that occurred in Australia, where the land was declared "terra nullius" – a land without people and therefore without a pre-existing right of sovereign power.

However, the legal "story" of a pre-existing right provided the constitutional basis for another story: the right of the Crown through the transfer of sovereignty. And it’s that story that has supplied the basis for aboriginal peoples’ struggles for self-determination within the different common law jurisdictions in which they found themselves. When I say story, I am speaking of the complex of legal concepts that make up a given tradition. I’m talking about the nature of law as a tradition that employs certain tropes and characters: things like inalienable rights and sovereignty. Both Greyshade and Reading the Maps criticise my emphasis on the narrative nature of the sovereignty story. Greyshade rightly comments that:

Sovereignty is not a delegation of authority from history but a contemporary question of fact. The states of Israel or Jordan were created by a UN resolution but exercise their sovereignty today without any reference to the UN or anyone else.

Of course, this is correct. But I think both of critics have misinterpreted what I have been trying to get at. To begin with, both Israel and Jordan were created out of different story-telling traditions: there is no one-to-one relationship between international law as it developed in the post World War II environment and the internal law of different common law countries. More importantly, although sovereignty is indeed a question of fact, its legal self-description is based on a constellation of definitions and objects, many of which are necessarily fictive. You cannot enter a courtroom and argue a case without in some way employing and referring to these fictions. You can't argue a case without without entering a story. We all seem to know that laws and constitutions are based on great stories, even if practioners in the legal and juridical sphere don't. As legal theorist Peter Brooks writes:

If the narrativity of the law seems obvious to the outside observer, the law itself does not recognize narrative as a category of its thinking.

Moving on, No Right Turn challenges my assertion that the Treaty of Waitangi is the legal basis for Crown sovereignty, arguing that:
the Treaty is obviously not the legal basis of the crown's sovereignty, for the simple reason that there can be no such basis. Sovereignty does not flow from law; it flows from popular consent.

There are two problems here as I see it. The first is that in my copy of The New Zealand Politics Source Book it says right at the beginning of Part 1 that:

The legitimacy of the political system as a whole in now generally considered to rest on a compact, the Treaty of Waitangi, signed in 1840 between representatives of the British Crown and many of the Maori tribes.

Secondly, it's not as though I don't agree with Idiot at No Right Turn about where the real basis of sovereignty ought to lie in a perfect world. I am no legalistic Tory willing to die on my sword for fictive constructions such as the sovereignty of the Crown or the surrender of sovereignty. Idiot's argument about the sovereignty of the people is consonant with his essential liberalism. I am, however, a marxist social-democrat. And for me, saying things like the people are sovereign comes close to identifying the state with "the people" - an amorphous concept and a dangerous one. In fact, I like the language of Crown and Right inasmuch as it makes explicit the fact that the people are not sovereign: in a society such as ours real power lies elsewhere.

What I am arguing is that if we read New Zealand's legal and constitutional history consistently, following its own internal logic, we arrive at a contradiction between the obligations set out in the Treaty of Waitangi and the legal basis of state power in New Zealand. It's a productive contradiction because it sets out in clear relief the fact that so-called "parliamentary sovereignty" is a fictional object that is no longer desirable. Such a "reading" exposes the fact that in the Treaty of Waitangi we have a partial constitutional document without a legal means to enforce it: the state, now synonymous with parliament is in breach of its obligations. But it cannot be called to account.

I think that as a result of the Treaty, parliament needs limits to its authority in the form of a separation of power. But because legal thinkers have theorised New Zealand as a unitary state, they have been unable to justify the establishment of a supreme court which might have the power to limit parliamentary authority. The problem is that to theorise in this way makes the Treaty of Waitangi invisible. There is, in my opinion, a case to be made that New Zealand is not a unitary state: rather, the obligations of the Treaty form a limit to the authority of the state in the same way that a constitution does.

The Treaty represents an authority that de-stablises the "unitary state." If this is the case, then two points follow: first, there must be a court capable of judging the interested nature of government's realtionship to its Treaty obligations, and second, the partial and limited nature of the Treaty of Waitangi invites all New Zealanders to embark on the work of completing this country's constitutional environment. The task opened by the Treaty of Waitangi is to build a real supreme court and a constitution for everyone.


Sunday, August 08, 2004

Waitangi and the Separation of Power

In the controversy surrounding Haami Piripi's submission to the Seabed and Foreshore Bill, it seems that an important point has been lost. What captured everyone's attention was Mr. Piripi's warning to New Zealanders that
This country could be brought to its knees by internal conflict and perhaps civil war over the coming decades as a direct result of this bill.
But Mr. Piripi said a few other things as well, and in light of the current war of words between the Clark government and the new Supreme Court judiciary, it might be well worth taking a closer look at what Piripi's comments can tell us about the relationship of the Treaty of Waitangi to questions of judicial independence and the doctrine of the separation of powers. Interested?

According to the Sunday Star Times,
the submission says the foreshore bill, which puts the coastline in Crown ownership and prevents Maori seeking title to it, "destroys any confidence we might have in parliament and in government to govern fairly in this country.
For the record, I'm inclined to agree with Mr. Piripi. I think that the Foreshore and Seabed Bill represents the expropriation of customary rights and the denial to Maori of due process under the law. Such an arbitrary and clearly unjust law naturally erodes confidence in the ability of parliament to legislate fairly. And it calls into question the extent to which the Crown is fulfilling its obligations to Maori under the Treaty of Waitangi. No less an authority than the Watangi Tribunal itself warns that the Clark government's Seabed and Foreshore policy is fundamentally flawed. In its Report on the Government's Foreshore and Seabed Policy, the Tribunal comes down hard:
These are fundamental flaws. The policy clearly breaches the principles of the Treaty of Waitangi. But beyond the Treaty, the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination.
Let us remind ourselves what is at stake. The Treaty of Waitangi is not like any other treaty. It is the legal basis of Crown sovereignty in New Zealand. If the Crown fails to honour the Treaty, it puts the rule of law and parliamentary sovereignty itself into question. The problem is that many New Zealanders have conveniently forgotten that New Zealand's legal authority to pass laws is constituted by the Treaty, and believe instead that Parliament is magically sovereign. They forget that Parliament had first to become sovereign, and under the common law, that could only happen as the result of a treaty with those in possession of the originary aboriginal title. Sovereignty, we are told, was transferred.

The question is, can Parliament be a fair judge of its highly interested relationship to Treaty obligations? I'm not sure that it can. If it is true that the Treaty of Waitangi is a treaty between two sovereign peoples, then there must be an independent authority capable of judging Parliament's fulfillment of its responsibilities. It's clear that the Waitangi Tribunal is not that authority:
Our jurisdiction is recommendatory only, and power to govern resides with the Government. We have no say in how much or how little regard is paid to our views. As a quasi-judicial body standing outside the political process, we proceed in the expectation that governments in New Zealand want to be good governments, whose actions although carried by power are mitigated by fairness. Fairness is the value that underlies the norms of conduct with which good governments conform - legal norms, international human rights norms, and, in the New Zealand context, Treaty norms.
Of course we know that the new Supreme Court will not have the capacity strike down legislation that it considers illegal or unjust. Responding to questions from the U.K.'s Constitutional Affairs Committee on the new Supreme Court, Justice Sian Elias commented that
It is a court of general jurisdiction and not a constitutional court so that does not change... We can make declarations about compatibility with our equivalent of your Human Rights Act... indeed our legislation, as you are aware, affirms parliamentary sovereignty and the rule of law. Parliamentary sovereignty is a concept that has been developed by judges, by judicial determination, so this system is not going to give us the power to strike down legislation.
In text-books of politics, the doctrine of parliamentary sovereignty is seen as the appropriate form of power in what is called a unitary state, that is, a state in which there is only one source of legitimate authority. New Zealand is, it seems, just such a country. This country's parliament does not share power with a federation of provinces or states and, like Britain, has no written constitution to which all laws must conform.

Or does it? Surely, if the Treaty of Waitangi forms the basis of the New Zealand Crown's legal authority to govern, then the obligations set out in the Treaty must actually function as a kind of constitution, in so far as the failure to execute these obligations puts the sovereignty of the Crown into question. The problem is that as a quasi-consitutional document, it is limited to the obligations of the Crown to Maori. All the other questions of rights and limits to authority live in the amorphous miasma that passes for a constitution in this country. My feeling is that this is becoming less and less tenable. The advent of a new supreme court without the ability to actually check parliamentary power is becoming more problematic. And pressure to change this is mounting, partially as a result of the government's own actions. John Hopkins of Waikato University wrote a piece the other day in which he criticised government reaction to comments made by Justice Elias on the subject of judicial independence:
The reaction appears to stem from the Government's decision to portray creation of the Supreme Court Act as a measure devoid of significant constitutional implications. Such an approach allowed it to drive the bill through Parliament without lengthy debate. It also meant, however, that many difficult questions were left unanswered in the legislation. The Government has only itself to blame. The highest court in any democratic jurisdiction is not an ordinary court. It is the defender of the constitution and champion of the rule of law. Within these limits, its word is final. This is a role that often makes such courts unpopular with governments, and in many countries this function is handled through a separate institution.
There's a difficult conjunction going on here. On the one hand we have a new Supreme Court without real independence and without the kind of legal authority that most democracies take for granted. On the other hand, there is a deepening chasm between Maori peoples and the government that calls into question the legal arrangements of the New Zealand state. In a country that is wary of dramatic political change, Labour sought to modernise the judiciary by tinkering. Unfortunately, events have begun to reveal that tinkering was not the best solution.