Liberalism: New Arguments for the Original Position (part 3)

Politics for the New Dark Age offers a robust defense of a libertarian socialist approach to politics and governance, embedded in a liberal political and social framework. It explicitly makes use of social contract theory, a shared myth that all members of a society have an implicit agreement that establishes the ground rules for their future interaction. The social contract is of course only a thought experiment, but the fact that it's merely a convenient fiction is irrelevant if it is useful for ordering society. The 'veil of ignorance' is a particularly important element of Rawlsian liberalism. The veil provides a selective structure for social contract-based ideologies by specifying the process through which social rules can be considered just. 

In Part 1 and Part 2 of this series, I showed that recent developments in both evolutionary psychology and evolutionary game theory offered new ways to justify the veil of ignorance story. Today's blog post will offer a third approach, borrowed from the related field of cultural evolution. 

The Imitation Game

In many evolutionary models, individual actors do not calculate their optimal strategies on the basis of observations about their surroundings, but instead employ heuristics by which they imitate the strategy of other agents. When individual learning is costly or error-prone, and the strategic environment is unpredictable, imitation offers an efficient, reliable way for individuals to do no worse than their contemporaries. Those interested in a fulsome (albeit lengthy) digression on the topic should read Richerson & Boyd's "Not by Genes Alone: How Culture Transformed Human Evolution." While heuristically imitating others may not seem like it should lead to optimal social organisation, the discipline of cultural evolution argues that natural selection operates on strategies to increase the frequency of adaptive variants and decrease the prevalence of maladaptive ones, creating social equilibria which we call 'culture'.

But which heuristics do actual human beings employ? Game theory makes predictions about the general categories of decision-rule which produce cooperative equilibria, and fortunately we know from several decades of work in behaviourial economics and evolutionary psychology that humans do in fact possess biological biases which implement these rules. The simplest are kinship- and proximity- biases, through which an individual copies the behaviours of those genetically related to themselves or in close physical proximity. These rules are clearly important for animals and children, but aren't the whole story. If cultural evolution was restricted to tight kin-groups, behaviourial variation over time would be minimal: culture would be reliably replicated, but not very adaptive to changing circumstances or useful in organising large-scale societies.

Cultural transmission may also demonstrate two other biases: payoff-dependent bias (i.e: imitate the most successful strategy) and conformist bias (i.e: imitate the most frequent strategy). Frequency-dependent imitation, or "When in Rome, do as the Romans do" is a useful heuristic for most human societies: not only is conforming with the traditions of the majority likely to be adaptive in terms of environmental fitness, but non-conforming may signal belonging to an out-group and invite ostracism and punishment. Well known experiments by Stanley Milligram and Solomon Asch have demonstrated that we are a conformist species, although the conformist propensities of individuals of course vary and some of us are preferentially drawn to imitate less-frequent behaviour and desire non-conformity. 

Imitating more successful actors is also a useful learning heuristic, albeit a more complex one. On first blush, preferentially imitating strategies with the highest payoff is likely to lead those strategies to spread throughout a population, increasing the general welfare. But gathering information on payoffs is more difficult than one might think, particularly when it creates incentives for actors to provide false information about their payoffs. Do we imitate actors who were successful in the immediate past, or those whose ancestors have been succesful for generations?  Can we reliably remember and compare the reputations of thousands of people simultaneously (Dunbar's number suggest we can't), or should we rely on symbolic representations of success and status, such as ostentatious consumption or wealth? For this reason, payoff-biases are often conflated with prestige-biases: i.e. it's not objective measures of fitness which matter, but socially-constructed measures of prestige. 

Back to Rawls: The "Imitative Veil"

And that brings us back to our new formulation of Rawl's veil of ignorance: legitimate social rules, norms and institutions are those to which individuals would give their consent as if they did not know their own learning rule, or how possible learning rules are distributed in society once the veil is lifted. In other words, in designing the rules, norms and institutions of a liberal society, we must be blind to whether individuals preferentially copy the behaviours of their kin; or to what extent they demonstrate conformity with social rules; or the extent to which they prioritise individual learning over the instructions of those with a higher place in the social hierarchy. Social norms must be robust against the possibility of a population employing a different mixture of imitative rules, and should not privilege one set of rules over any other.

In Part 1 of this series, I argued that traits that were universally shared by all humans (such as the abhorrence of physical harm and the fairness bias) could be made subject to universal rules, but where individuals differ, Rawlsian rules must take those differences (such as regarding loyalty and respect for authority) into consideration. For for instance, if it turns out that we all preferentially copy the strategies of our close family, we might adopt universal norms that limit social intervention in early childhood but which counteract its potentially negative long-term effects, such as through universal public pre-school and primary education. 

Those who are familiar with Chapter I of my book, might now be able to see the shape of where I'm going with this. People may employ frequency-biases with varying levels of strength (either due to genetic, developmental of cultural variation): some might preferentially conform with the the prior behaviour of the majority (conservatives), others might be relatively more open to new cultural variants (progressives). People may also employ prestige biases in different ways: some will preferentially comply with the behaviours of high-status individuals (authoritarians), others will prefer self-discovery and individual learning (libertarians). Because the progressive-conservative and authoritarian-libertarian axes encompass normal individual variation in how individuals learn and adapt their behaviour, these axes are subject to political contestation in a democracy and not governed by universal philosophical principles. 

Built for speed, not for comfort

Boyd & Richerson make a further observation about the implications of imitative transmission for cultural evolution: there is a necessary trade-off between the efficiency of imitation and the vulnerability of a social system to exploitation by maladaptive or parasitic behaviourial variants. In other words, the less discerning we are about where we copy from, the more we are prone to error. The less information individuals collect about the relative fitness of potential strategies, the more likely it is that they will imitate a strategy that is not fitness-enhancing. Dawkins and the "new atheists" tend to see a great deal of culture, especially religion, as maladaptive variations that are parasites on our cultural capabilities. But this is an gross oversimplification. Firstly, it is extremely difficult to determine whether behaviour sets are actually adaptive or maladaptive. Secondly, the possibility of exploitation is a necessary trade-off for a cultural system that is capable of learning and adapting over human timescales. 

In Chapter IV of my book, I argue that there is a third important component of political personality: an individual's willingness to change and adapt their beliefs in light of changing circumstances. Although essentially speculative, I believe that an evolved capacity for cultural evolution might have created a psychological toolkit to make judgements about when to critically examine beliefs, and that that there is almost certainly likely to be (for biological, developmental and cultural reasons) a distribution of valid values that psychological trigger can be tuned to. To bring the discussion back to Rawls again, political systems (but especially democracies) should be blind to the possibility of variation in individual's willingness to compromise: they must be robust to the possibility of both centrist preferences and polarised politics. The corrollary of this, since I do so enjoy undermining centrists, is that techncratic centrism cannot be utilised as a universal principle of governance. 

Cryptocurrencies: It's a bubble, dummies

Chapter XIII of my book, "Politics for the New Dark Age: Staying Positive Amidst Disorder" defines an economic bubble like this:

"Bubbles are deviations from the long-term trend in the value of particular assets where their rate of return exceeds the underlying productivity growth of the capital."

From a policy perspective, bubbles are undesirable and difficult to manage, but they're also a useful diagnostic tool: the presence of a bubble indicates that an economy is unbalanced, and that there's an excess of either supply or demand for capital or labour going unused. 

Crypto-currencies are currently experiencing a bubble. Take a look at the price chart for bitcoin, the founder and standard-bearer of this new type of digital currency:

That's a more than 17-fold increase of value of bitcoin assets in a year, creating a total market valued at about US$280 billion. Other digital currencies are performing similarly. Ethereum, the third most significant cryptocurrency by both value and volume traded increased by more than ninety fold. Perhaps better capturing the irrational exuberance of the bubble, companies are doubling or quadrupling their share value overnight by adding 'blockchain' to their company name, and new currencies are being created and attracting venture capital at an staggering rate. More annoyingly, semi-informed elites are kvetching non-stop about way blockchain technology is going to save the world: honest-to-god, I attended a public lecture recently on how blockchains could be employed to monitor human rights abuses. 

We've seen this scale of bubble before: the best fit is the .com bubble of the late-1990s, during which tech companies posted similarly insane gains before crashing back to earth. I'm not saying the value of bitcoin has always been illusionary (all currencies are illusions, one way or another). Bitcoin has been around for a while now and found genuine niche uses in online (and black-market) transactions. It has developed a reputation as a meaningful unit of exchange, and attracted financial infrastructure investments to improve the efficiency of its operations. In the same way that the .com bubble didn't mean the internet was a failed technology, a cryptocurrency bubble doesn't mean that bitcoin and its peers are useless: merely that their current valuations grossly exceed the underlying productivity of the asset class. 

Why now?

Let's be clear. The value of cryptocurrencies isn't miraculously increasing because blockchain is the future of money. Cryptocurrencies cannot repace fiat money because they operate on the same principle as gold or other precious materials: they are resource-constrained prestige assets privileged by some consumers but unsuitable as a universal medium of exchange. Why are cryptocurrencies resource constrained? Well, the fact that bitcoin mining currently consumes more electricity than the Republic of Ireland gives a clue. While digital currencies themselves may be unlimited, the computing power required to cryptographically process blockchains consumes a scarce common good (electricity) and produces waste (heat and carbon dioxide). When the prices of these inputs and outputs are taken into consideration, cryptocurrencies will face natural limits to growth, much as the value of gold is constrained by the accessiblity of the mineral in the Earth's crust. Fiat money is not limited in the same way: assuming trust in public institutions, it's a more efficient solution for creating an unlimited medium of exchange.  

So why is the cryptocurrency bubble happening now? Let's take the productivity of bitcoin as a given and look at why more capital might be flowing into the market. First, most digital currencies have in-built inflationary drivers: there is a mathematical limit of 21 million bitcoins that will ever be created, and even currencies that are unlimited in the same way exponentially slow the creation of new units of currency over time. In other words, the longer cryptocurrencies exist, the more stable and predictable the supply of coins becomes. Secondly, several events in 2016/17 significantly improved the regulatory certainty of the major digital currencies. Ethereum famously split into multiple versions in 2016 as a result of attacks on its value, whereas the bitcoin market changed some of its internal rules in 2017 without splitting. A stable asset pool with regulatory certainty is a good de facto target for market speculators. 

But the core reason for the timing of the cryptocurrency bubble is that there is just too much capital sloshing around the financial system right now without anything productive to invest in. The same factors that are pushing the US stock market higher are creating, at miniature scale, the digital currency bubble. That is: obscence rates of corporate profit, the promise of debt-funded tax cuts by irresponsible conservative governments, stagnant wage growth and rampant inequality. Supply-side economics when there is a glut of capital supply does not work. Capital availability does not make capitalists invest in low-productivity, low-return activities: it increases their tolerance of high-risk, high-reward assets. In other words, it drives speculation and bubbles. Whereas the Bush tax cuts were invested in speculation driving up the price of housing and food (which was bad enough), the Trump cuts are being invested in bitcoin, share-buy-backs and an increasing concentration of corporate monopolies. 

Three Futures

Overall, I'm not very concerned by the cryptocurrency bubble. It's a warning sign that things are seriously wrong elsewhere in the economy, but not a problem for public policy-makers per se. Unlike housing, food and superannuation, cryptocurrencies are not (yet) essential to the provision of essential public goods and services, and so there's little reason for governments to be concerned about their prices (by analogy: why bother controlling the price of expensive art?). To that end, I see the cryptocurrency bubble ending one of three ways:

1) In the first (and most likely) scenario, the market for cryptocurrencies crashes without significant consequence for the broader economy. Lots of people take a haircut, and a bunch of financial instrastructure investment is effectively wasted, but cryptocurrencies continue to be used and develop at their underlying growth rate - as happened to tech companies after the .com bubble. The bitcoin crash may come about either on its own, or as a consequence of a broader systemic financial crisis: either way, no one will really take notice except the speculators who were playing the bitcoin game. 

2) The second scenario is that the bitcoin bubble crashes and creates negative feedback for the real economy because of the overexposure of key financial institutions (including pension funds and banks) to cryptocurrency risk. This is far less likely. US$280 billion may seem like a large asset pool, but it's a drop in the ocean in terms of global financial markets. While I have little faith in the market's ability to handle systemic risk, I'm marginally more confident that institutional investors will be warier of cryptocurrencies than they were of mortgage swaps. 

3) The third, and least likely scenario in my mind, is that there is in fact a positive feedback between the cryptocurrency market and the broader financial world. In this scenario, amidst a broader systemic market crash, in which the faith of investors and consumers in national currencies is shaken, trust and confidence in crypocurrencies actually leads to their increased use in market transactions, such that cryptocurrencies ultimately help stabilise the real economy. Think of people hoarding gold during the Great Depression to get an idea of how this would look. I refer to this as a the "Mr Robot" scenario (spoilers for season 3), and it's the preferred vision of the techno-libertarians who have the most faith in bitcoin. It's an extremely unlikely outcome for the forseeable future, but an interesting possibility nonetheless. 

A 'Voice' for Indigenous Australians (Part 4): The Egalitarian Alternative and Conclusion

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

Is showing material disadvantage necessary?
Although political representation has intrinsic value, claims for differential treatment are often (at least for most liberals) predicated on the demonstration of material harm caused by the neutral application of law. The numerous ways in which indigenous Australians are materially disadvantaged has been catalogued in detail by the "Closing the Gap" reports: Child mortality for indigenous Australians is more than double the national average; educationally, indigenous children are judged on average to lag more two years behind their peers at age fifteen; in 2014-15, indigenous employment rates were twenty percentage points below the national average; and indigenous adults die on average 10 years earlier than their peers.

Although Australia lacks the overt history of enslaving minority communities in the manner that occurred to First Nations and African-Americans in the United States, the overall contemporary pattern of systemic racism is similar. A July 2017 report by the Australian Law Reform Commission (‘ALRC’) found that indigenous Australians are massively overrepresented in the prison population (27% of the total). Aboriginal men are eleven times more likely to be incarcerated than the national average, and Aboriginal women fifteen times. The ALRC found that indigenous offenders were more likely to be sentenced to jail time for minor offences as the rest of the population, and noted the disproportionate impact of alcohol prohibition laws, access to justice issues and juvenile detention on remote indigenous communities.

Prima facie, these differential social and economic outcomes establish a case for special representation for indigenous Australians. That is particularly the case given the extensive federal power over indigenous communities (particularly post-intervention) and the direct correlation between past and present government policies and these differential outcomes. However, there is an alternative view. One that argues that group representation rights are not sufficient to prevent these differential outcomes, which are infringements of fundamental economic and social rights on their own terms. The remainder of this entry will be dedicated to that argument, while standing by and ultimately re-affirming the ‘in principle’ position that adequate political representation requires special indigenous representation. 

An Egalitarian Alternative . . . ?

The left-leaning British philosopher Brian Barry has argued against Kymlicka’s multicultural compromise, instead favouring greater direct recognition and enforcement of second-generation economic and social rights. If indigenous peoples experience systematic racial discrimination, or their rights to housing, education or adequate healthcare are not being adequately met, he would no doubt agree that they have a genuine claim for rectification. But this claim arises from the way in which the state and society more broadly fail to uphold the access to economic rights and privileges that members of the majority culture enjoy. The social purpose of the two arguments – improving outcomes for indigenous Australians – are similar, but their reasoning differs. For Barry, if these material differences cease to exist (and they should), then the need for differential treatment would also expire. 

He writes:
“[W]e have to qualify the statement that classical or ‘difference-blind’ liberalism cannot countenance any deviation from universal rights. For there may be cases where a system of group-based rights for those suffering from systematic disadvantage will be a way of helping to meet the egalitarian liberal demand . . . However, special treatment for members of disadvantaged groups is justifiable only so long as the inequality persists. The objective of special treatment for disadvantaged groups is to make the need for that special treatment disappear as quickly as possible."

Barry’s argument has both specific and general consequences for the Australian case. In the first instance, persistent evidence of indigenous deprivation in terms of well-established economic and social rights calls for what Levy’s typology of claims labels ‘special assistance’ – additional resources to help a minority community achieve the same standard of living the majority can access unaided. Indeed, this has largely been the approach of sympathetic Governments in Australia: additional welfare spending, assistance for housing construction, incentives for doctors and teachers to work in remote areas, and a focus on indigenous economic development. Yet this public investment over many decades has seemingly done little to change the fundamentally unequal place of indigenous Australians in public life. 

But his position has another, more general, implication for Australia. Barry would argue that if a neutral law does not produce egalitarian outcomes then it’s the law, not the outcomes, that needs reform. Australia is both politically liberal by custom and, compared to the OECD average, rather economically egalitarian. But this implicit goodwill disguises many pockets of both authoritarian policy and deep economic inequality. The purpose of a Bill of Rights is not to guarantee rights that the majority already enjoys as a matter of custom, but tools through which marginalised groups can challenge and claim equal treatment from society.

I agree with Barry’s premise that if Australia instituted a comprehensive Bill of Rights, which included robust protections of economic and social rights and institutional machinery to ensure compliance, much (but not all) of the disadvantage experienced by indigenous Australia could be levelled. A (de minimis) constitutional prohibition on racial discrimination, for instance, would improve the law for all Australians, even if it did end up benefiting indigenous Australians disproportionately. 

Yet that would not answer the case as to whether differential representation was appropriate. Advocates for ‘second generation’ rights such as Barry often say that that human rights must be understood as a cohesive whole; but we can turn this argument around and note that improved living conditions for indigenous Australians would be meaningless without effective political representation. Liberalism recognises the autonomy of the individual not only as a right but as an intrinsic good. It holds that, given equal material circumstances, the non-autonomous individual is worse off than a free one. Indigenous Australians suffer from many material disadvantages: a legacy of state oppression and family disruption, economic and geographic marginalisation, and prejudicial attitudes from the minority culture. But what they have now told us, in no uncertain terms, is that they want their autonomy back as well. They want a Voice and they want to have that Voice heard. 

Conclusion: Towards a multinational Australia

Ultimately, I come down on the side of supporting special representation rights for indigenous Australians, even if there were no material disadvantage shown (contra Barry) and even if negotiating reasonable accommodations for indigenous interests imposed additional governance costs and risks. Barry is partially right: there are other things Australia can do and should do: a binding prohibition against racial discrimination, a comprehensive Bill of Rights, additional financial assistance for remote communities. But the history of Government support for, and intervention into, indigenous communities in Australia has demonstrated that no amount of additional financial assistance nor paternalistic control is able to sustainably resolve the systematic and structural disadvantage faced by those of indigenous heritage. 

On the facts, there are persistent features of indigenous communities in Australia – their small size, geographic dispersion and economic marginalisation – which prevents their members from securing meaningful political participation and representation of their interests. Self-determination would not be a magic bullet. But democracy demands that those who are affected by collective decisions get to have a say in making those decisions. We have no other choice. 

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

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

“No such country”

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

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

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

Other Objections

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

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

Rights for whose benefit?

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

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

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

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

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

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

Understanding rights claims

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

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

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

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

Liberal Multiculturalism

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

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

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

Making the Case: The Social Thesis

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

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

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

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

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

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

Representation as a collective right

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

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

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

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

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

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

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

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