Sticking to a deal

The election result has left New Zealand First holding the balance of power. One of its policies is to remove all mention of the Treaty of Waitangi from New Zealand law.

Such a policy is sometimes defended on the grounds that the treaty was made so long ago that it is no longer relevant. Since the circumstances of the mid-19th century are so different to those of today how can a document from then matter to us today?

This thought is sometimes reinforced by pointing out that people today are not obligated to make up for wrongs committed by their ancestors. If my great-grandfather insulted your great-grandfather, I do not owe you an apology. So how can it matter to New Zealanders today that the treaty was not adhered to after it was signed?

This line of argument is mistaken but the response often given to it by defenders of the treaty is equally mistaken. That response is to say that the treaty somehow embodies principles for biculturalism that are still relevant today for regulating interaction between Maori and Pakeha.

This is open to the criticisms that it is far from clear what the principles embodied in the treaty are, that figuring out what they are involves much creative interpretation, and that the result will be confusion and judges having too much power.

And these, of course, are precisely the problems that New Zealand First's policy is intended to address. Even if all these difficulties could be overcome, there is still a further problem with the response: if these are good principles for Maori-Pakeha relations then what does it matter whether they are embodied in a 165-year-old treaty or not? Good principles are good principles, so even if the treaty had never occurred the principles should be applied anyway. So what relevance is the treaty?

In contrast to this principle-based answer, a better response to criticisms of the treaty is to make a contract- based answer. Contracts are not merely legal arrangements, they are moral ones too. If I suddenly found myself on another planet with another being whom I did not share any legal system with, it would still possible for us to agree to help each other out and this agreement would create rights and obligations for both of us. Parties to a contract are morally bound to the terms of the contract.

Contracts also bind over time and as circumstances change. If two parties agree to exchange resources several years from now, it is no good if, when the time comes, one of the parties says "but that was several years ago – what does it matter today"?

Part of the point of agreements is that they enable people to make arrangements that persist over time.

Similarly for changed circumstances. If I agreed to give you a lift in my car I ought to do so even if something else I'd rather do instead has arisen in the meantime.

Associations can also be parties to contracts. A Doctor Who appreciation society might make an agreement with a Star Trek fan club to support each other so that a low-point of popularity for Star Trek during a Doctor Who revival, or vice versa, need not spell doom for either. This agreement remains binding even when one side perceives that it is shouldering a greater burden than the other.

The crucial point is that the agreement remains even though the individual members of the clubs change. This then is the relevance of the treaty today. It is an agreement between several associations to establish a common authority while at the same time limiting the power of that authority. Since these associations persist over time, members of those associations today should keep to the terms of the agreement.

Affirmative Action at TPM

The Philosophers' Magazine has an interesting and well-argued article up on the topic of affirmative action, written by our very own Simon Clarke. Go read it!

After rejecting three common justifications for affirmative action, Simon offers a variant of the 'role-model' argument:

Racial minorities should be given some advantages, even if the beneficiaries of those policies come from the wealthy middle class and even if they are not the ones who can specifically be said to have suffered racial discrimination in the past. They should receive such advantages in order to achieve the conditions for real equality of opportunity. People need to know that they can achieve goals in society. Sending that message helps encourage the belief that opportunities really are open to them, that the rooms that may have once held them captive have been unlocked. It helps bring about real equality of opportunity.

I very much agree with Simon about the importance of people recognizing that opportunities are available to them. When a teacher at Aranui high school asked a student where he thought he'd be in five years time, the student answered, straightforwardly, "Prison." That's where all his older male relatives were, so he didn't see any other options as being genuinely open to him. These social circumstances are tragic, and it would certainly be desirable to change them.

But would Simon's idea really help? It assumes that impoverished Maori will identify with wealthy and successful people of the same race. But is this assumption true? Will seeing the success of upper-class Maori really make the Maori in Aranui think such options are open to them, so long as the real circumstances of the people they know are unchanged? It strikes me as pretty implausible to think that seeing a bunch of rich strangers - even Maori rich strangers - is going to have that sort of impact. We need more widespread, low-level, local reforms to the social structure. Of course, I haven't a clue how to achieve that, or whether it's even possible to achieve through outside intervention. If affirmative action could be shown to have this sort of impact, then that could provide a solid justification for it. But until then, I'm skeptical.

Economic coercion

The legalisation of prostitution last year saw renewed debate on this age-old issue. Among the arguments, one perennial is that most prostitutes are forced into the occupation as a result of economic circumstances. Women from poor backgrounds have few options and so can hardly be said to freely choose to become prostitutes. Hence, so the argument goes, a society that legalises prostitution is allowing a practice that forces women in dire straits to become prostitutes.

This is a particular instance of a general form of argument that appeals to the notion of ‘economic coercion.’ The same form of argument is often made in other areas. The idea of allowing people to sell their blood and organs is often objected to on the same grounds, as are payments for participation in medical research. I’ve even heard the argument made against boxing. The concern in all these issues is the same: that the people who ‘choose’ these activities would most likely be those from poor economic backgrounds.

Is this a coherent objection to these practices? One possible response is to take a more robust view of personal responsibility. Being offered a lot of money when you have very little makes something very tempting but it is hardly the same as having a gun pointed at your head. However, for the sake of argument let’s set this aside and assume that prostitutes from poor economic backgrounds are in some sense forced into that occupation.

A second response is to say that rather than being an argument against prostitution, concerns about economic coercion are reasons to bring about a fairer distribution of wealth in society. If some people are so poor that they’re forced to become prostitutes, sell their organs, etc then something should be done about this extreme poverty so that they will not be forced to make those decisions. Once this is done, no one will be forced into these desperate occupations.

This I think is a good answer but still leave us with the following question: given that a radical redistribution of wealth will not happen anytime soon (Labour and National are currently vying for who can pander to middle-incomes the most rather than helping the worst off in society), what should be done about prostitution, organ-selling, etc in the meantime? The economic coercion argument seems to say that since prostitution is a result of poverty, this a reason for legally prohibiting it. But that can hardly be the correct response. Many people who work in factories have few other job opportunities available to them but we wouldn’t think this is a reason to prevent them from working in factories. Prohibiting prostitution would actually make would-be prostitutes worse off. Society would be saying “your economic circumstances are so bad that you are forced into option X (whether it is prostitution, organ-selling, boxing or whatever), so we are going to block option X.” But this is crazy. Surely somebody in poverty but with option X, which will allow them to make money, is better off than somebody in poverty without option X.

So why is the economic coercion argument such a common one against organ-selling, prostitution, etc? I suspect the answer is that there is an underlying belief that the people involved are forced to make decisions that are ultimately against their best interests. If economic circumstances forces a person into option X, that is bad if option X is bad for that person. This is a highly paternalistic attitude to take towards people. Society would now be saying “your economic circumstances are so bad that you are forced into option X and we know better than you that X is bad for you.”

Now this may not bother some people, since they may think that paternalism is sometimes justified. But it is not clear that it is in the cases we’re examining. If one is in severe poverty it may well be perfectly rational to sell one’s spare kidney for $10,000. After all, one can survive adequately well on one kidney and $10,000 can make a great deal of difference to one’s quality of life. Similarly, it is far from clear that other decisions such as to become a prostitute or agree to try out a new drug for its effectiveness and side effects are irrational if the compensating rewards are large enough.

Economic circumstances may mean that people are forced into certain activities, but this is no reason to legally block those activities.