Political Legitimacy and Indigenous People
By Margaret Moore*
Paper prepared for the Demcon conference, University of Victoria, October 2-3, 2004.
This is a rough draft only. Please do not cite without permission from the author.
Indigenous people have marshalled powerful arguments to question the legitimacy of
the (white-majority) state’s political power over them. These arguments are of
various kinds: some have emphasized the fact that they were the original inhabitants
of the land, and that white people’s relationships with them were marred by force and
fraud; others have emphasized the marginalization and exclusion of indigenous people
from the processes of state-creation; and others, the on-going unfair and
discriminatory treatment that indigenous people have suffered at the hands of the
state. Obviously, many arguments appeal to all these facts, and indeed in the case of
indigenous peoples’ relations with states in the Americas and Australasia, all these
elements were present; although they are conceptually separable and presuppose
different theories of political legitimacy.
This paper does not examine these arguments themselves – which are better
made, in any case, by indigenous people -- but, rather, focuses on the conceptual
resources available in mainstream theories of political legitimacy to respond to, or
incorporate, indigenous concerns about state legitimacy.1 This means that, for the
purposes of this paper, a theory of political legitimacy has to pass two ‘tests’: the first
is to be a coherent justificatory argument for the legitimacy of the state; the second is
that the theory’s implicit conception of what would make a state illegitimate has to
make sense in the indigenous context, or, at the minimum, capture some of the
* Margaret Moore, Dept of Political Studies, Queen’s University, Kingston, Ontario email:
moorem@post.queensu.ca
concerns that indigenous people have about the state. The argument of this paper
assumes that a conception of political legitimacy and political illegitimacy is
necessary to make prescriptions about what conditions would have to be met in order
to live in a legitimate political order.
There are at least three types of arguments that could be, and have been, made
to question the legitimacy of the Canadian state in governing over indigenous peoples.
These are lack of consent, unjust usurpation and unjust treatment arguments. The first
has a mainly individualist thrust, but can be extended in a communitarian direction;
the second is directed at the legitimacy of the previous political authority, and so is
inherently non-individualist; the third identifies political legitimacy with rules of
justice, and argues that egregious violations bring into question the legitimacy of the
political order. The second argument, however, does not constitute a full theory of
political legitimacy, but merely sets out one of the conditions of a legitimate state
(that its origin be just). Each of these arguments will be discussed in the three
sections of the paper.
In order to proceed, it is necessary to be clear about the term ‘political
legitimacy’. According to Buchanan’s terminology, “an entity has political
legitimacy if and only if it is morally justified in wielding political power, where to
wield political power is to attempt to exercise a monopoly, within a jurisdiction, in the
making, application, and enforcement of laws”.2 This definition of political power is
deliberately inclusive. It would cover, not only the actions of a just liberal democratic
government that enjoyed wide popular support, but also that of an occupying military
force. This is in order to develop a non-circular conception of legitimacy: it wouldn’t
be appropriate to insert the conditions for legitimacy in the definition of political
power. It is still an open question whether the occupying military force is legitimate
or not.
This definition of political legitimacy also collapses questions of the
justification of the state and that of the legitimacy of the state. In much contemporary
political philosophy – such as that deriving from Rawls and Kant – to show that a
state is justified and to show that it is legitimate requires the very same kind of
argument. For others, however, these are two quite different sets of questions: this
was true of Locke’s argument, which justifies the state in natural law terms, and
legitimates the exercise of its political authority in terms of individual consent. In an
important book, A.J. Simmons emphasizes that arguments that bear on the state’s
justification (e.g., whether it achieves moral goods) often fail to show that the state
has the kind of special moral relationship with particular subjects that confers on it
political legitimacy in the sense of a right to rule them For Simmons, questions of
the justifiability of the state are connected to a comparative assessment of whether a
state is better than no-state (in response to the anarchist objection); whereas questions
of the legitimacy of the state focus more directly on the moral relationship between
the state and those people subject to its laws.3 The argument of this paper is agnostic
between the sides to this debate, in the sense that it ignores it when identifying
arguments that purport to bear on political legitimacy.4 It considers arguments of the
first type to be, potentially at least, arguments about the political legitimacy or
political illegitimacy of the state.
1. Consent Arguments.
At the centre of liberal democratic political theory is the idea that all people are
naturally free and that government authority has to be justified by the free consent of
the people who are governed by it. In 1690, John Locke expressed this doctrine and
the link between natural freedom and citizen consent in the following terms:
Men being, as has been said, by nature, all free, equal and independent, no
one can be put out of this estate, and subjected to the political power of
another, without his own consent.5
Three hundred years later, indigenous leaders in Canada appealed to the same idea,
emphasizing both the exclusion of indigenous people from state-creation, and the lack
of indigenous consent to the current political order.
In 1864, the descendants of the people who arrived here five hundred
years ago took it upon themselves to forge a constitution without us. It
became the British North America Act of 1867. In this Act, the federal
government gave itself the power over ‘Indians and lands reserved for
the Indians’. It did not ask us if we agreed; it just assumed power over
our peoples. We were not even there when the decision was made….
We must ask ourselves, ‘By what right did they get that power…?
-- Ovide Mercredi, National (Canadian) Chief for the Assembly of
First Nations 6
On the face of it, then, it appears that a consent theory of political legitimacy might
connect indigenous discourse about the state with a standard conception in liberaldemocratic theory. On this view, some version of a consent theory of political
legitimacy represents an area of possible shared agreement in concepts and values
between indigenous and non-indigenous people. The fact that the white majority state
was established without the consent of indigenous people, and, further, that the state
continues to exercise power over them without their consent, is not a result of
different cultural understandings of the conditions of political legitimacy. It is due to
at least two things: first, that normative ideas are often contested, even within cultural
communities and traditions; second, and more seriously, there is often a gap between
what is justified, moral or legitimate and the actual practices of particular people in
societies, who may be motivated by ignorance and/ or self-interested greed.7
In this
view, resurrecting some version of a consent theory of political legitimacy is a first
step towards outlining a legitimate state that both indigenous and non-indigenous
people could accept, and thereby putting indigenous – non-indigenous relations on a
more appropriate footing.
This view is subject to several problems, however. First, standard consent
theory, as articulated in Locke, is individualist: the consent in question is that of
individuals; and the moral relationship that he refers to is between the state and
individuals. This is in contrast to the view that the relevant consent is that of
indigenous people as peoples or as political communities. Towards the conclusion of
Part 1 of the paper, I will consider the possibility of adapting consent theory is a more
communitarian direction.
Another, more serious problem with consent theory is that it is extremely
problematic as a theory of political legitimacy: it fails to pass the first ‘test’. It is
historically important, and still exercises a powerful grip on the modern political
imagination, because it is the theory most consonant with liberalism. It promises to
reconcile political power not only with individual freedom but also with equality
(because it explains why some people have authority, and unequal political power
over others, while, at the same time, arguing that we are all morally equal).8 However,
as many critics of consent theory have noted, it is utopian in the worst sense: there is
no existing government, nor any conceivable government in the foreseeable future,
that is likely to satisfy the demanding conditions of consent theory.9 This is not only
a problem of political practice, referring to the non-existence of any mechanisms to
secure consent. There is the deeper problem that, regardless whether what is
consented to is the system as a whole, or the process for generating laws, or the
particular laws themselves, some people will simply not consent.10 This has
relevance not only to the usefulness of the theory in general but its usefulness in
explicating indigenous concerns about the state, namely, this rigorous form of consent
theory fails to capture the particular problem that indigenous people have with the
Canadian state. It is so demanding that even members of the white Anglo majority,
who benefited enormously from the establishment and subsequent policies and
practices of the state, did not consent to it. In other words, the theory fails to capture
what is different about the non-consent of indigenous people and the non-consent of
all other people who are subject to the coercive rules of the state.
In order to address the criticism above, concerning the demanding nature of
explicit consent as a condition of political legitimacy, consent theorists have
traditionally relied on the notion of tacit consent or some other analogue of it. Locke
raised the question of “what shall be understood to be a sufficient declaration of a
man’s consent, to make him subject to the laws of any government” and then
distinguished between express and tacit consent.11 He wrote:
The difficulty is what ought to be looked upon as a tacit consent, and how
far it binds, i.e. how far anyone shall be looked on to have consented, and
thereby submitted to any government, where he has made no expressions
of it at all. And to this I say that every man that hath any possession, or
enjoyment, of any part of the dominions of any government, doth thereby
give his tacit consent, and is as far forth obliged to obedience to the laws
of that government, during such enjoyment, as anyone under it; whether
this his possession be of land, to him and his heirs for ever, or a lodging
only for a week; or whether it be barely travelling freely on the highway;
and, in effect, it reaches as far as the very being of anyone within the
territories of that government.12
.
In Locke’s view, simply remaining within the territory of the state is equivalent to
‘consenting’ to it. Although he does not elaborate the terms in this way, the
underlying idea may be that obedience to the laws is the implicit requirement for
remaining within the territory of the state. As many have pointed out, however, this
fails to consider adequately the conditions of valid, i.e., free exit. It may be so
difficult to leave, and there may be so few places in the world willing to accept you,
that staying in place might simply be a reflection of the enormous costs of exit rather
than consent to the state and its terms.13 Further, it is counter-intuitive to suppose that
the mere fact of residence within the claimed territories of a particular just state could
give rise to any particular duties of support and compliance. Indeed, there does not
seem to be much emphasis on participation in cooperative schemes or the kind of
meaningful interaction with the state that makes loyalty seem morally obligatory.14
A third problem with the idea of ‘tacit consent’ has been articulated by
Simmons and Wellman.15 They argue that, in the absence of an explicitly formulated
statement of consent, we would need to be clear about what counts as ‘tacit consent’.
But in order to know what counts as tacit consent, we would have had to agree to, or
have established, an authoritative body to make that determination. Hence, they
argue, the notion of tacit consent is circular because it presupposes the very thing that
it is supposed to explain.16
It is possible, however, to interpret the appeal to ‘tacit consent’ in such as way
as to emphasize only the moral notion of benefit. On this view, Locke is abandoning
the notion of consent, straightforwardly construed, and appealing to it only in a
metaphorical way: the crucial moral notion is that of benefit. In the passage cited
above, it is clear that the person benefits from the law and order provided by the state,
and it is the fact that the individual benefits from the goods provided by the state that
grounds the person’ s obligation to obey the state (a crucial component of political
legitimacy). On this analysis, the notion of ‘tacit consent’ moves beyond Locke’s
justificatory argument for the state in terms of natural law, by emphasizing the precise
relationship between individual citizens, the state, and the enforcement of natural law.
However, as Simmons has argued, the problem with this type of argument is that the
mere fact of (unsolicited) benefit, even if that benefit was more clearly explicated by
Locke, is not sufficient to generate an obligation.17 Suppose that my neighbour plants
a tree on her property, and the shade of the tree benefits me greatly, providing me
with shade, encouraging birds that l like to look at, making a nice environment for my
hostas plants. It does not follow that I am obligated to fertilize the tree or pay for its
upkeep, simply because of this unsolicited benefit. Of course, in that example,
property relations, and a whole system of rights and obligations, are assumed, but it
still makes the point that unsolicited benefit does not seem to function at all in the
way that consent functions – as a basis for an obligation to obey.18 In any case, this
type of argument is no longer a standard consent argument; indeed, it bears a strong
resemblance to the (more philosophically compelling) arguments considered in part 3
of this paper, which conceive of politically legitimate state as one that confers
substantial benefit, namely, the protection of human rights.
The various problems with traditional consent theory are, it seems to me,
fatal: it does not represent a coherent, philosophically attractive theory of political
legitimacy. Moreover, liberal democratic consent theory is concerned with the
consent of individual subjects (or citizens), whereas the kind of consent, or nonconsent, typically invoked by indigenous peoples, concerns their lack of consent as a
people, or political community. This does not represent a full or comprehensive
theory of political legitimacy, since it presupposes that we already have legitimate
political authorities or legitimate political representatives of indigenous people whose
‘consent’ was not obtained, but it invokes at least one plausible condition for a
legitimate political authority -- that it not be the product of unjust usurpation of a
previously existing legitimate authority.
2. Unjust Usurpation Arguments
At the heart of the claim that unjust usurpation violates one of the conditions of
political legitimacy is the view that legitimate political authorities should be protected
from overthrow, and the political powers that over-throw them cannot themselves be
legitimate.
The link between injustice and usurpation, justice and legitimacy, in ‘just war’
theory, has been clear in the West at least since the Christian and natural law
traditions, and were developed from the Roman period through the work of Cicero,
Augustine and Vitoria.19 The main component of the just war doctrine is that war is
legitimate if it is defensive in nature, or, in its early versions, if it is in pursuit of
compensation for an alleged act of aggression. There was however some debate about
whether it might be legitimate to engage in war “on account of the personal tyranny of
the barbarian’s masters towards their subjects.” This defence, most famously put
forward by Vitoria, suggests that a just war might be extended beyond a defensive
war to involve a conception of humanitarian war. Such a conception would need to
specify what constitutes an “offence against the innocent” . Vitoria put forward this
idea in the context of allegations of human sacrifice and cannibalism among natives in
the Americas, but it is obviously subject to abuse, because there is a latent danger that
it will be used as a pretext for a particular rulers’ (or peoples’) expansionist aims.
Most modern political and legal theories – liberalism and international law –
oppose conquest as a means of acquiring territory and, in clear cut cases, have
vigorously resisted it. Conquest by its very nature violates the rights of sovereignty of
the political community whose territory is invaded – a point of particular concern in
international law – but also relevant to liberal theory, in so far as liberalism places a
great value on due process and the rule of law. While it is difficult to justify conquest
using liberal principles, and implicitly, to regard a state that emerged through
conquest as exercising legitimate political authority, it is important to distinguish
between theory and practice, for liberals have historically used something resembling
conquest in the building of empires by liberal states. This was not conquest in the
clear, international law sense of one state attempting to take over the territory of
another state by force. It more typically involved the creation of forms of political
authority where no such authority existed, or where political authority was either
deficient or extremely weak.20 John Stuart Mill, the most famous liberal thinker,
echoing Vitoria’s justification of rule over indigenous people in the ‘New World’,
presented liberal imperialism as necessary to bring about net improvements in the
lives of those people who were currently living under barbaric regimes, and as a
stepping-stone to full liberal rights and representative government, which were not yet
possible in these areas, given the stage of culture and political development of these
communities. Contemporary liberals rarely speak in these ways nowadays, but it is
important to note that liberal imperialism was a central plank in the European
empires, and still, arguably, a component of any universal theory that assesses
legitimacy in terms of the application of its principles, rather than what is thought and
believed by the people subject to its rule.
Nowadays, most liberal-democratic theorists, and international law specialists,
not only reject conquest as a means of acquisition of territory and control over people,
but also the liberal ‘civilizing’ mission.21 They accept that the process by which the
states in the New World were created was morally unacceptable, and a blot on the
moral fabric of the newly-created (white-majority) political communities.
Specifically, they acknowledge that this process involved the destruction of the selfgoverning regimes that indigenous peoples had established prior to colonization and
their forcible incorporation into non-indigenous political systems. Although some
elements in the historical story are contested, there is now broad agreement that the
process by which indigenous people were colonized and subject to non-indigenous
political rule involved silencing and excluding them, and stripping them of the
institutions of self-government that they enjoyed prior to colonization.
Prominent international law specialists have indeed argued that the loss of
sovereignty experienced by indigenous people is comparable in many respects to the
loss of sovereignty of the three Baltic republics and their forcible incorporation into
the U.S.S.R. in 1940-41.22 According to the international law treatment of historic
sovereignty in the case of the Baltics, the sovereignty of these areas could be revived
in international law and their place in the world community of states could be restored
to them. The parallel with indigenous people is quite striking, for they too were
denied their institutions of political self-government and forcibly incorporated into the
states that had wreaked such injustice over them. Although there are important
differences between the two kinds of cases, particularly in the problem of ‘restoring’
the original legitimate governing authority of indigenous people, both cases count as
‘conquest’ and in neither case can the conquering state thereby acquire any legitimacy
in governing over the conquered people.
There are three possible lines of arguments against this view of unjust
usurpation, two of which focus on the moral problems connected to the long passage
of time between the original unjust usurpation and the present.
One objection to the argument, especially in its formulation by Kingsbury, is
that the analogy between indigenous communities and the states of Latvia, Lithuania
and Estonia in the inter-war period is not sufficiently precise: the self-governing
indigenous communities were not ‘sovereign’ in the same way. This objection points
to an ambiguity in the term ‘legitimacy’, which indeed is used in a number of
different senses. The conception of legitimacy that is often advocated and accepted
by social scientists and international lawyers views states as legitimate if they achieve
certain kinds of international recognition and are accepted into the community of
nations. The Baltic states were legitimate in the international law and international
relations sense – these political communities were ‘recognised’ by other states; they
had been parties to international treaties, subject to international law, and generally
accepted into the international community of states. None of this was true of the
political communities established by indigenous peoples.
This is not the place to discuss the general cultural biases of international law,
nor the privileging of certain kinds of political communities in the field of
international relations. It is possible to concede that this objection is, as far as it goes,
correct – indigenous people didn’t enjoy legitimacy in the international law sense23 –
and yet argue that the international law or international relations sense of legitimacy is
not what is at issue. What is at issue is legitimacy in the sense described at the
beginning of the paper, with whether the political entity in question (the state) is
morally justified in wielding political power over a people, in making, applying and
enforcing its law within a jurisdiction. The two notions of legitimacy – political
legitimacy and international law or recognitional legitimacy -- are not clearly related.
Indeed, it is a sad fact that many states that are legitimate in the international relations
sense fall far short of the standards of a legitimate state. Sudan, for example, is a
member of the Untied Nations, a member of the community of nations – at least in so
far as that is defined in terms of membership in international organisations such as the
UN – but may well be a politically and morally illegitimate state, for it is currently
practicing genocide on its black population in Darfur. From the point of view of the
question of the moral legitimacy of political authority, there is, as Kingsbury has
argues, a striking parallel between the cases of indigenous peoples and those of the
Baltics and Tibet and East Timor at the time of its forcible incorporation into
Indonesia. This is not simply the violation of international law, and legitimacy in the
international relations sense, but a common moral argument: the basis on which
independence was lost was morally suspect, and the basis on which the whitemajority state exerted its authority over indigenous peoples was morally unclear.
Indigenous peoples, like those people in the Baltics (and Tibet and East Timor) have
an account or a memory of an earlier era of political independence and rightly regard
the basis on which this independence was lost as morally suspect.
A more difficult objection to the argument is that, while unjust usurpation
does indeed bring into question the authority or legitimacy of the state in its dealings
with the conquered people, such historically-based arguments are generally subject to
a statute of limitations. There are probably a number of reasons for this, principally
connected to the fact that the moral quality of relationships may alter with the passage
of time. One consideration is whether the state, with less than illustrious origins, can
then engage in behaviour and establish relations with the conquered people that would
restore to it political legitimacy. The unjust usurpation argument, outlined here, does
not constitute a full account of the conditions for political legitimacy; focussing only
on the failure the meet one of the conditions, but it would seem at least plausible that
over time, the character of the state might alter in a fundamental way; the state could
become associated with the provision of important moral goods, not simply with the
original (unjust) acquisition of power.24.
Unjust usurpation cannot fix forever the
illegitimacy of the state: there is the possibility that the state might reconstitute itself
on other terms, and gradually acquire legitimacy in the exercise of its power.
Another problem with purely retrospective arguments, which has been pointed
out by Jeremy Waldron, is that the passage of time affects the various possibilities for
restoration of the injustice.25 In Waldron’s opinion, even if it is the case that the
origins of the state are clouded in injustice and exclusion, still, the injustice that was
perpetrated might have fundamentally altered the character of the society and its
moral relations, so that any move to the status quo ante is deeply problematic. Any
substantive (rather than merely symbolic) policy to rectify historic injustice or move
to the status quo ante will involve committing even more injustices. This is because
people build a pattern of expectations and attachment to land and goods that they are
in possession of, and to the political communities that they live in. Restoring this land
or these goods to the original owners may create new, equally serious kinds of
injustices. Of course, this would not be a problem if the perpetrators of the injustice
and the victims of the injustice were still alive, for the perpetrators would not be
entitled to these expectations, and the victims would be entitled, by a basic principle
of justice, to the restoration of what they have lost. In the case of multi-generational
reparative justice arguments, of which this is an instance, the situation is quite
different. The new structures of political authority, which are the direct result of the
destruction of the original political authorities, might have moral relationships with
some of the people who live there, and it is not possible to ignore this fact (without
committing even more injustice). Moreover, the original structures of political
authority have been irredeemably destroyed. In the case of indigenous peoples, this
problem is quite acute: unlike the process of decolonisation in Africa and Asia, where
the European population was frequently very tiny, and political control could be
returned to the people who had been deprived of it simply through a process of
making these territories independent, in Australia, New Zealand and the Americas, the
settlement of Europeans was more complete, and the decimation of the original
population, more serious. This means that any attempt to restore collective selfgovernment to indigenous people has to take account of the interdependent nature of
the indigenous and non-indigenous populations, and the relatively small capacity for
self-government that many indigenous peoples now have This is not an argument to
do nothing, as Waldron seems at times to suggest: there are things that can be done to
make amends for past injustices, but it means that a purely retrospective argument
rarely can justify a return to an original, unblemished state of affairs. 26
There is, however, another reading of the narrative of forcible inclusion and
imposed authority, which is not primarily a backward-looking argument for reparative
justice. It is a forward-looking argument, in which the constitutional ideal of
democratic agency, in which people delegate power that rests on their shared
sovereignty as a people to the government, is held up as an aspirational ideal. The
imposed authority of the British Crown, inherited by the Canadian state, falls far short
of that ideal. The historical facts about conquest and exclusion are relevant, because
they suggest that we should aspire to put the relationship between indigenous and
non-indigenous people on a more equal and reciprocal footing, and to recognise each
other as citizens with shared concerns and responsibilities.
The historic injustice involved in the destruction of the self-governing
communities of indigenous people and the subsequent imposed authority of the
British Crown and the Canadian state is a useful reminder of the fact that there was, in
this country, and in the various settler societies of the Americas and Australasia, no
defining constitutional moment that set out terms of ongoing peaceful coexistence and
shared political life. This history points to the moral case for redeeming the terms of
our political life through our agency, through creating a political structure governed
by mutuality and reciprocity. It also suggests – in a non-individualist fashion – that
we need, not simply to define principles that bind all of us together under a single
order of law, which is consistent with a unitary constitution, but terms and principles
that protect the various groups that were marginalized and excluded from peoplehood
in the original constitution. Although the usual story about democratic agency and
sovereignty ends up including people as equal and undifferentiated citizens, the
history of forcible exclusion and authority suggests that what is needed is inclusion as
the people who were excluded.
3. Unjust Treatment Arguments of Political Legitimacy
The above account of unjust usurpation did not spell out fully the basis of the state’s
legitimacy, but only discussed what kinds of actions might de-legitimate a state. In
other words, it presupposed a fuller conception of what justice is, and is relation to
political legitimacy. Moreover, many who discuss unjust usurpation of political
authority in the context of indigenous people also emphasize that the original
conquest was then followed by a litany of problems in their relations with the state,
including unfair, discriminatory and even murderous treatment. For example, in the
passage immediately following Ovide Mecredes’ discussion of the lack of (collective)
consent of indigenous people in the Canadian state, he emphasizes not only the
question of origin -- “We must ask ourselves not only how they came to have this
power” – but, crucially, “ how they have used it?”27 It is necessary therefore to
expand the argument considered in section 2 above, to consider whether a justicebased account of political legitimacy might be both philosophically coherent and
relevant to the situation of indigenous peoples.
On the second issue – of relevance – it is clear that a justice based account of
legitimacy should be extremely relevant to an account of legitimacy of the state in its
relations with indigenous peoples.. Indeed, the evidence of unjust treatment
perpetrated by the white majority state on indigenous peoples is nothing short of
overwhelming. The very assumptions of cultural and racial superiority (of
Europeans), which justified the original conquest continued to govern the relations
between indigenous and non-indigenous peoples after the establishment of regular
forms of political authority. Indeed, the tutelary relationship implicit in the relations
between indigenous and non-indigenous peoples can properly be seen as a localized
version of a global phenomenon in which European powers such as Britain, France,
Portugal, the Netherlands (and, before 1918, Germany) controlled non-white peoples
everywhere.28 These European empires extended throughout Asia and Africa, and
operated on the premise that European civilization was superior to other cultural
forms and practices; that power was merited in some way -- a result of the Darwinian
competition in which the fittest tend to rule; and skin colour was highly correlated
with power, and, by extension, civilization and progress.29
The assumption that indigenous peoples were culturally backward and their
assimilation into the white society was both in their interests, and an inevitable result
of the Darwinian competition among cultures, permeated almost all the policies made
by white settler majorities over indigenous peoples. In almost every respect, and
every policy decision, indigenous peoples were described as wards and treated like
children. As John A. Macdonald, Founding Father of Canada, and its first prime
minister, claimed in 1887: “The great aim of our civilization has been to do away
with the tribal system and assimilate the Indian people in all respects with the
inhabitants of the Dominion, as speedily as they are fit for the change.”30
Further, the assumptions of cultural and racial superiority (of Europeans)
affected the process of treaty-making. Although the very act of treaty-making implies
recognition of the need for mutual respect and mutual consent, this process in the
indigenous case was infected by assumptions of European cultural and racial
superiority. This led to a situation where indigenous peoples were offered treaties that
were manifestly unfair, and many indigenous peoples were reluctant to sign them, or
signed them only when many members of the indigenous communities were sick or
starving or otherwise reduced partners. This meant that many treaties did not
represent a fair or just basis for inter-communal relations.
Even when treaties were in place, the ideas of (European) cultural and racial
superiority meant that there was a (putatively justified) basis for unilaterally
abrogating the treaties, and this is exactly what happened in many cases. There is a
long history of broken promises in the relationship between indigenous and nonindigenous peoples31: the New Zealand treaty of Waitangi signed by Maori chiefs and
British colonists was declared a “simple nullity” in 1877 (although its status has very
recently been reinterpreted);32 the language and land rights guaranteed to the Métis
under the Manitoba Act of 1870 were rescinded by white anglophone settlers, once
they became a majority. Other treaty rights, of small communities, have never been
honoured.33 Obviously, any society that is based on the principle of the rule of law
has to take seriously the evidence that indigenous people have legal claims to land or
resources that are currently not being honoured. But this is not the only source of
injustice, since most conceptions of justice incorporate the idea of fair treatment, or
equality, and this has not historically characterized indigenous – non-indigenous
relations.
The related assumptions of the cultural inferiority of indigenous peoples and
the merits of assimilationist policies, which underlay the abrogation of treaties, has
also disastrously affected the policies of the state with respect to indigenous peoples.
Inuit communities in Northern Canada were forcibly removed from their homes and
relocated thousands of miles at the recommendation of distant bureaucrats who
claimed to want to more efficiently direct services to scattered indigenous
communities, but also as a method to establish sovereignty over the High Arctic by
populating parts of it.34 Indigenous children in Canada and Australia were forcibly
removed from their families and sent to live with non-indigenous families or in nonindigenous residential schools, where they were sometimes physically and sexually
abused and, even when they were not, they were stripped of their indigenous culture,
forbidden to speak their language.35 The old culture was forgotten -- because not
taught -- and the new white culture was perceived as foreign or alien, and
inconsistent with native identity. This was not surprising: it is hard to adopt the
culture and identity of the group that engaged in large-scale theft and sometimes
murder of your forefathers and foremothers. The result, of course, was that
indigenous children were left with very few cultural resources, having been deprived
of one culture and unable to adopt another. In short, white monopoly on policy over
indigenous peoples, based on the assumption of white superiority and indigenous
inferiority, has led to a legacy of failed programmes.
This history of unjust treatment is relevant to political legitimacy because it
suggests that the state cannot be justified on one of the traditional grounds in Western
liberal-democratic theory, viz., that it upholds justice. If a state is not justified (in
relation to a baseline in which there is no state at all), it can hardly be thought to
exercise its authority legitimately. However, it fails to demonstrate the reverse – that a
justified state is also a legitimate one. There is typically thought to be a difficulty
with justice-based accounts of political legitimacy, which do not apply to consent
accounts of political legitimacy (though those accounts are, obviously, fraught with
other kinds of difficulties). Justice might justify a state -- a state might be justified
because it is consistent with justice -- in relation to a situation of no-state; but this
does not yet tell us why we should obey it. That is to say, there is typically thought to
be a logical gap between justifying a state and demonstrating the legitimacy of the
state. This is, in fact, a slightly different variation on the problem discussed above –
that unsolicited beneficent action doesn’t show that people have obligations of
obedience.
This brings us to the point where it is possible to discuss an argument that
bridges the gap between justification and legitimacy, by demonstrating that a just state
is legitimate state. Although the basic structure of the argument is the same, there are
two distinct versions: one put forward by Christopher Wellman; and a stronger,
justice-related account, by Allen Buchanan. In Wellman’s version of the argument,
which was expounded first, consent is not deemed necessary if the state is necessary
to protect people ‘from peril’ and this is grounded in a natural duty of justice to
protect other persons from peril. In this way, Wellman argues that there is no need to
legitimate the state through a consent argument: consent is not needed to establish
relations of authority when justice is present, because people already have a moral
duty of justice to protect other persons from peril (so long as doing so is not
excessively costly).36 Buchanan’s argument proceeds in parallel steps.
1. Every person has a robust Natural Duty of Justice (This in turn is grounded
in the more foundational principle that all persons are to be accorded equal
concern and respect.)37
2. If one has a duty of justice, then one has no right not to be coerced to do X.
3. Therefore if the state coerces person in order to protect justice, then the
state does not violate anyone’s rights.
This argument suggests that the prerequisite for a legitimate state is a just state, and
that injustices de-legitimate a state. There are, of course, questions about the precise
relation between injustices perpetrated by a government, which could be rectified by a
change of government, and when such injustices infect the basic constitutional
structure of the state, but it would seem that the long train of abuses and injustices at
the hands of a number of different governments, suggests that the problem is not
simply a particular government, but something endemic in the state order (as the
element of racism suggests).
The principal difficulty for this justice-based account, however, from the perspective
of indigenous people, is that the abuses of human rights and basic minimums of
decent treatment certainly seem to de-legitimate the state, but do not really address the
fact that it was indigenous people who experienced them, and indigenous people who
suffered at the hands of the state. That account does not target indigenous people in
particular: the evidence of injustice (perpetrated over citizens) does not show that its
authority over indigenous people, in particular, is illegitimate; rather it suggests that
any exercise of its authority is illegitimate. This account does not address the moral
quality of the relationship between the state and indigenous people. The justice-based
argument, if successful, suggests that the state is not legitimate for anyone, because
the only appropriate goal of state coercion is the upholding of justice.
This means that, while this argument goes some way to indicate the conditions
of legitimacy and the source of its illegitimacy, it does not fully address the issue of
the relationship between the state and particular people within the state. There is a
parallel here with liberal-democratic arguments relating to popular sovereignty.
These are able to identify that a wrong is committed when (some) people are excluded
or denied the capacity of self-government; but there is little capacity in liberaldemocratic theory to distinguish between people within the state, and to explain what
good is lacking in the conception of self-government of a particular people.
Democratic theory, resting as it does, on the importance of political equality, and
having an equal say on the collective conditions of our existence, has no trouble
identifying the wrong of exclusion. But it is consistent with most versions of western
democratic theory that can be corrected by a regime of full inclusion in the political
system , as equal individuals, but not necessarily as one’s own political community.
Similarly, this justice-based account of political legitimacy has no difficulty
recognising the importance of justice; and indeed, making justice the primary end of
state action and the central component of a conception of political legitimacy. But
this is consistent with a regime in which people are treated as equal individuals,
treated the same under the law, and subject to no discrimination. This is certainly
superior to what occurred in the past, but it fails to capture the targeted nature of the
injustice and the full destruction of their political community.
Indeed, the only resource within the liberal-democratic tradition that is able to
go some way towards dealing with this group-based concern is that of
constitutionalism, understood as a tradition in which institutional design is undertaken
in order to resist certain tendencies in the state. Liberal constitutionalism, in
particular, involves a pre-commitment to resisting certain undesirable tendencies,
which mainly takes the form of designing various protections into these institutions.38
Thus, we build certain institutional protections for free speech because we recognise
the tendency of majorities to attack unpopular views at the heat of the moment. We
have a pre-commitment to certain institutional protections against the aggrandizement
of the armed forces, the security forces, and the executive arm of the state because we
recognise the tendency of war to jeopardize individual liberty. We build in procedural
protections for those people who are accused of crimes because we recognise the
pressures on the police to make an arrest and the serious power imbalance between
the individual person and the state. Likewise, we should think seriously about
extending the constitutional tradition to include minority rights for those groups who
have a long history of victimhood at the hands of the state.
In this tradition, the fact of persistent, egregious unjust treatment directed at a
particular group in the state cannot be ignored. It suggests the need to build in
protections for indigenous people, to design institutions that will protect people from
future injustices. The historical story is relevant but principally in a future-oriented
way: because it is indicative of a tendency of which we should be aware. It is the
demonstrated propensity for unfair and unjust treatment –and indeed, sometimes just
disastrously bad policy-making – that underwrites our sense that indigenous and nonindigenous people need a new political arrangement,. This might involve
constitutional protections for cultural rights, some self-governing powers, possibly
powers of nullification and/or veto vested in minority representatives. This is
indicated, not really by the justice-based account above, but by recognition that, given
this history, the constitutional order should be designed to protect against future
injustices, future state violence against minorities, future persecution aimed at
assimilation and forcible inclusion.
Conclusion
This paper has examined three types of arguments relevant to the relations between
indigenous and non-indigenous peoples, in Canada particularly, but also to the pattern
of relations in other settler societies, such as Australia and the United States. It then
assessed the conceptual resources available in liberal-democratic tradition of political
legitimacy to respond to these arguments. It found the liberal-democratic tradition
remarkably unhelpful. Consent theory is philosophically problematic, but not helpful
for indigenous peoples, in any case, because its bar is so high that all existing states
fail to meet it. Non-indigenous and indigenous people are in a similar situation with
respect to lack of consent. Unjust usurpation is generally accepted in international
law, but there are problems relating legitimacy in an international law or international
relations sense to legitimacy in the moral sense that is used here. Further, liberaldemocratic theory has enormous difficulty accounting for multi-generational
injustices. Finally, this paper explored unjust treatment arguments. This type of
argument is philosophically coherent and certainly applicable to indigenous people,
although the problem attached to past injustice remains. The principal difficulty with
this argument, however, is that it seems curiously unable to distinguish citizens within
the state. A state that has perpetrated injustice is not legitimate, and this means that it
is not legitimate for anyone, indigenous and non-indigenous alike, and this fails to
capture the special difficulty in the moral relationship between indigenous people and
the state. Justice theory, at least as it is usually developed, is not able to recognise the
problems that attach to regimes of full (even if unwelcome) inclusion in the state, and
universal application of individual justice norms.
The paper concluded by arguing that the tradition of liberal constitutionalism
has the conceptual resources to recognise the fact of historic injustice as a problem,
and then argue for protections and institutional arrangements to protect against future
injustice, on the assumption that the past injustices demonstrate a propensity to
problems of this kind. This is not fully satisfactory, in part because its futureoriented nature fails to address the sense that moral wrongs that occurred should be
righted, and not simply protected against for the future, but it is, I believe, the most
promising component in the liberal-democratic tradition for addressing indigenous –
non-indigenous relations.
1
The project here is not to find the appropriate justification for the exercise of
political authority and to see whether indigenous people fit. That might be subject to
Taiaike Alfred’s criticism that it is “ridiculous that the original inhabitants of a place
should be forced to justify their existence to a crude horde of refugees from another
continent.” T.Alfred, p. 58.
2
Allen Buchanan, “Political Legitimacy and Democracy”, Ethics 112 (July 2002),
689-712, at 689-690.
3
A. John Simmons, Justification and Legitimacy. Essays on Rights and Obligations
(Cambridge: Cambridge University Press, 2001).
4
This debate cannot be ignored entirely, however, because it is relevant to the
assessment of the justificatory argument for political legitimacy. In many cases, of
course, the distinction does not matter, since the question of how to justify the state
(in terms of the goods it provides) can be re-formulated in terms of the moral quality
of the relationship with other members of the political community. That is to say: if
a state is not justified, because it failed to provide the necessary goods that we would
expect, it would also have reflect the moral quality of the relationship between the
state and the citizens, as one characterized only by force, exclusion or exploitation
5
John Locke, Second Treatise of Government, ed., C.B. Mcpherson (Indianapolis:
Hackett, 1980 [originally published 1690], p. 52, ch. VIII, para. 95.
6. Ovide Mercredi and Mary Ellen Turpel, In the Rapids. Navigating the Future of
Canada’s First Nations (Toronto: Viking, 1993), 6.
23
7
For a very clear and helpful discussion of the problems in exploring the ‘values’ or
a community or tradition, see Joseph Carens, Culture, Citizenship and Community; A
Contextual Exploration of Justice as Evenhandedness, 111-113. See also Allen
Buchanan and Margaret Moore, “Introduction” to Nations, States and Borders;
diverse ethical theories, eds., Allen Buchanan and Margaret Moore (Cambridge
University Press, 2003).
8
Thomas Christiano, The Rule of the Many: Fundamental Issues in Democracy
(Boulder, Colorado: Westview, 1996).
9
Relatedly, Allen Buchanan has argued that consent theory is ill suited to politics in
the most fundamental sense: that politics is connected to the practices and policies
that it is appropriate to adopt precisely when people do not consent to them. See
Buchanan, “Political Legitimacy and Democracy”, 700.
10
These distinctions are from Buchanan, “Political Legitimacy and
Democracy”,700.
11
John Locke, Second Treatise of Government, ch.VIII , para. 119.
12
Ibid.
13
This argument is made by David Hume. Refs??
14
Simmons, Justification and Legitimacy, p. 137.
15
A. J. Simmons and Christopher H. Wellman, “Liberalism, Samaritanism and
Political Legitimacy”, Philosophy & Public Affairs, 25 (1996), 211-37.
16
In an interesting discussion of the Wellman-Simmons criticism of consent theory,
Allen Buchanan considers whether there might be a natural act of consent, analogous
to a Natural Act of Promising. His argument against this is that he cannot imagine
what that would be – other than possibly lying prostrate in an act of submission before
a sovereign. But that would indicate a relationship of utter subordination rather than
the appropriate relation between a legitimate state and citizens. The reason why it is
difficult to imagine a ‘natural act’ of this kind is that political consent is
extraordinarily complicated: it wouldn’t’ be rational to consent to a political authority
unless it were clear exactly what one was consenting to – the scope and limits of the
authority, the duration of its governance, the means of removing it, and so on.. And
that of course brings us back to Wellman’s and Simmons’s point that we would have
had to have some authoritative structure in place to make the determination. See
Buchanan, “Legitimacy and Democracy”, 700-01.
17
A. J. Simmons, Justification and Legitimacy, pp. 138-9.
18
This is a variation of Simmons’s example of a corporation that provides benefits,
but does not result in any kind of moral obligation toward that corporation.
19
Richard Tuck, “The Making and Unmaking of Boundaries from the Natural Law
Perspective” in Allen Buchanan and Margaret Moore, eds., States, Nations and
Borders (New York: Cambridge University Press, 2003), 143-170.
20
David Miller, “Liberalism and Boundaries” in Allen Buchanan and Margaret
Moore, eds., Nations, States and borders; diverse ethical theories,
21
. This view of the relationship between political legitimacy, on the one hand,
and forcible incorporation and denial of collective self-government, on the other, is
also generally accepted in the political theory literature on the ethics of secession.
One very prominent line of argument – advanced by Buchanan and Norman, and,
from an international law perspective, by Lea Brilmayer, -- is that forcible
incorporation of a territory and people grounds an important, retrospective right of
secession. The argument for this is that conquest is a violation of the collective
sovereignty of the people living there, and a violation of the international legal norms
concerning the territorial integrity of states. There is therefore no burden on the part
of the secessionist group to demonstrate that their secession is justified: it should be
regarded as the return to political sovereignty, which had been wrongfully denied.
Implicit in this right of secession is a view of political legitimacy: conquest and
usurpation are illegitimate exercises of political power, and the usurping state has no
legitimate authority over the people it rules.
22
Benedict Kingsbury, “Reconciling Five Competing Conceptual Structures of
Indigenous Peoples’ Claims in International and Comparative Law”, in Peoples’
Rights, Philip Alston ed. Academy of European Law, European University Institute:
Oxford University Press, 2001), 100.
23
There is, however, a lot of evidence that many in the ‘western’ – at that time,
Christian -- world were prepared to regard native leaders as equivalent to European
kings. Vitoria, for example, argued within a neo-Thomist tradition that settlement in
the Americas should be rejected, because the Indians “undoubtedly possessed as true
dominion, both public and private property as any Christian…. [Western ‘discovery’
of the Americas] provides no support for possession of these lands, any more than it
would if they had discovered us.” Francisco de Vitoria, “On the American Indians”,
2.3 in Vitoria Political Writings, eds., Anthony Pagden and Jeremy Lawrance
(Cambridge: Cambridge University Press, 1991).
24
One might regard the British conquest of the French at the Plains of Abraham as a
crucial moment in the pre-Confederation period, but one that did not constitute a
permanent ‘blot’ on the relations between the two communities in a fairer federal
order.
25
Jeremy Waldron, “Superseding Historic Injustice”, Ethics, 103 (October 1992), 428
26
This concern about purely historical arguments in political theory may explain why
even the leading exponent of group-differentiated rights today, Will Kymlicka, who
refers to the fact that indigenous people were excluded and marginalized from the
process of state-creation as a fact, as a way to distinguish their trajectory from that of
(stateless) national minority groups, does not go on to draw on conclusions about the
relative legitimacy of the political power of the state over them. Will Kymlicka,
Politics in the Vernacular (Oxford: Oxford University Press, 2001), 122.
27
Ovide Mercredi, Against the Rapids, 23.
28. Alan Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State
(Vancouver: UBC Press, 2000), 17.
29. The point is made in Cairns, Citizens Plus, 14-56 . However, curiously, he does
not connect that historical story at all with the solutions that he proposes in the bulk of
the book.
30. Quoted in Cairns, Citizens Plus, 57.
31. See C. E.S. Franks, “Indian Policy: Canada and the United States Compared” in
Curtis Cook and Juan Lindau, eds., Aboriginal Rights and Self-government, 221-263,
at 227.
32. See Roger Maaka and Augie Fleras, AEngaging with Indigeneity: Tino
Rangatiratanga in Aotearoa@, in Duncan Ivison, Paul Patton and Will Sanders,
Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge
University Press, 2000), 89-109.
33. Mercredi and Turpel, In the Rapids, 59-79. See especially the moving discussion
of Cree leader Big Bear’s signing of Treaty 6 in 1882, and the subsequent
imprisonment of Big Bear and abrogation of the treaty only six years later.
34. Royal Commission on Aboriginal Peoples, The High Arctic Relocation. A Report
on the 1953-55 Relocation (Ministry of Supply and Services Canada, 1994), 71-77,
115-132.
35. Andrew Armitage, Comparing the Policy of Aboriginal Assimilation. Australia,
Canada and New Zealand (Vancouver: UBC Press, 1995), 236-7; 106-13.
36
The problem with this argument, as Buchanan points out in a footnote, is that it
only seems to justify a minimalist Hobbesian state (because peril implies a threat to
physical security).
37
Buchanan, “Political Legitimacy and Democracy”, 707-8.
38
For an excellent discussion, on which I draw, see Jacob T. Levy, “National
Minorities without Nationalism” in Alain Dieckhoff, The Politics of Belonging.
Nationalism, Liberalism, and Pluralism (Lexington Books, 2003), 155- 173, at162.