Friday, February 12, 2010

We the People(s)

This week I attended a superb conference organized by the New Zealand Centre for Public Law (Victoria University). The conference title was “We the People(s): Engagement and Participation in Government”. The list of speakers included Matthew Palmer, Harold Koh (via teleconference), Margaret Wilson, Dean Knight, Peter Cane, and Jeremy Waldron. I enjoyed all presentations, as well as the discussions that followed. I would like to very briefly refer to Professor Waldron’s presentation, which was both interesting and challenging (and extremely clear and engaging, which was very impressive when you take into account the jet lag).

Professor Waldron’s presentation was titled “People Participating as Peoples: Interests, Ideas and Identity”, and examined the topic of groups of individuals participating in politics under particular national, ethnic, or indigenous auspices. In one of the most interesting parts of his presentation, Professor Waldron challenged the premises of the letter he received from the conference organizers inviting him to the conference. The letter of invitation suggested that in countries like New Zealand, in which indigenous people’s acceptance of the authority of government was questionable at certain moments during the state-building process, the idea of providing special opportunities for the participation of peoples as peoples (e.g. as indigenous or national groups) is fundamental in order to secure their consent to be governed.
Professor Waldron attacked this idea via a rejection of consent theory: for Waldron, as for other contemporary political philosophers, submission to law and government is a moral necessity (part of a duty to cooperate with those around us), not a matter of choice or option (e.g. not a matter of consenting to be governed). In one of the most provocative parts of his presentation, Professor Waldron argued that what mattered was “engaging with actual circumstances here and now --the circumstances of justice or injustice that affect living people in the present conditions of life". He added that it "is not a matter of looking over our shoulders to some historic event of the giving or withholding of consent, as though --absent some special deal-making-- the historic withholding of consent could be grounds right now for a determination to take no responsibility for the polity and play no part in making things better”.

I think that I mostly agree with this, but still wonder what would happen if the “withholding of consent” occurs not hundreds of years ago, but a week ago (say after a military coup or military occupation in which after a short period of military rule, the military government calls for open and 'democratic' elections). Is there something objectionable about a particular people refusing to recognize the authority of the new government in such a situation? If not, what happens if that “resistance” extends to several generations?


  1. Joel, I wish I would have known about this conference. I would have tried to attend.

    Your post brings to mind a situation that is at once analogous and contrary. Consider what happens following a military coup, when the usurpers seek judicial validation for their actions. They go to court, present their case before a judge, and request a declaration of the legitimacy of their coup.

    The judge, for her part, faces a constrained choice: she must recognize the legitimacy of the illegitimate government (it is illegitimate because a coup can very rarely give rise to regime that is anything but illegitimate) or she must refuse to declare the new regime legitimate, in which case she will likely soon thereafter be relieved of her duties. The usurpers will then find or appoint another judge to clothe them and their regime with legitimacy.

    This may be an instance in which resistance, from the perspective of the judge, is futile.

  2. Ah, Rich, would have been great if you made it. Great conference. Waldron's paper was definitely provocative and interesting, as usual.

    Harold Koh was great too -- funny, self-deprecating, and highly informative.


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