‘Group’-based property rights and collective guilt


Full of sententious pathos and power worship, various Australian media outlets repeated the edifying fable of prime minister Paul Keating’s Redfern address on the event’s 20th anniversary last December.

The reverence was familiar for ‘an oration critically acclaimed as Australia’s version of Martin Luther King’s “I have a dream” civil rights speech’, a ‘seminal moment in reconciliation [that] has reverberated for two decades because of the power and poetry of its words.’

If, it was conceded sombrely, subsequent years have not realized ‘our’ hopes of 1992, there nonetheless was abundant consolation in the high values themselves, and in the ‘progress’ of their expression by a mature and enlightened member of the Australian ruling elite.

Here, in the voice of centre-left propriety, spoke the cynicism of the bien-pensant editorial page: pious, evasive, self-congratulatory.

Journalistic effusions find an echo in the world of scholarly ideas. (The workaday proximity of journalists and talking heads to political leaders, alongside the maintenance of a steep social gradient between them, typically spawns infatuations that are both more intense and less durable than the mutual complicities and common enterprises shared by academic clercs, court philosophers and governing elites.)

In his celebrated book The Guilt of Nations (2000), historian Elazar Barkan described the emergence during the 1990s of a ‘new international morality’, now a ‘major part of national politics and international diplomacy’.

This liberal internationalism, given human form in the shape of Clinton, Schröder, Chirac and Blair, had developed between the 1950s and 1970s but only achieved full flowering after the Cold War, when minority sensitivities could be indulged and ‘national self-reflexivity’ afforded.

Under a ‘new globalism that pays greater attention to human rights… international public opinion and organizations are increasingly attentive to moral issues.’

NATO airstrikes in Yugoslavia were one symptom of this ‘growing moral fervour’, founded in a ‘desire for moral politics’ and the ‘growing democratization of political life.’

Collective maturity (here the statements of political leaders presumably stood in for the ‘general will’ of the mass citizenry, much as Washington and Brussels made up the ‘international community’) included a ‘willingness of nations to embrace their own guilt’.

The practice of government apologies was tied, but not necessarily so, to the awarding of monetary reparations, restitution of plundered goods or the recognition of group ownership of property.

This was what Barkan called an ‘emerging political sense’ of ‘neo-Enlightenment morality’. In it, ‘the liberal framework of individual rights’ was supplemented by recognition of group rights.

An ethno-regional group, in other words, could now appear as a subject of right, a legal personality or bearer of substantive entitlements qua group.

Collective rights included those to self-determination, land ownership, communal identity, language and cultural patrimony, equal participation in the professions, etc.

Group rights were distinct from (irreducible to) the rights possessed by individuals who composed the group.

In this ‘negotiation’ between liberalism and communitarianism, the solid ‘inner core’ of liberal rights was swathed and adorned, and thereby enriched, by ‘local traditions and preferences’, the ‘place of the community’ and ‘group cultures’, ‘particularities and identities’.

Yet the existence of group rights had until recently been ignored  not least by the original ideologues of liberalism. Community rights had thereby been violated (recognition of a group’s traditions being one such collective entitlement enumerated by Barkan).

This raised the matter of collective guilt for national wrongdoing.

For, as a bearer of rights might also acquire corresponding duties (e.g. to uphold the rights of others), so collective desert implied the complementary possibility of group liability arising from group violation of rights.

Ideological coherence, rather than logical necessity, thus ensured that the crediting of one nation’s account would be balanced by a matching debit in another national ledger. An entire nation or other group could acquire guilt for having inflicted historical injuries on other nations or ethno-regional groups.

Elazar Barkan - The Guilt of Nations

As one of the few attempts to historically situate the entry of ‘national guilt’ into approved usage, Barkan’s book had several merits.

First, it linked the legitimizing armature of Clinton-era human-rights imperialism abroad (Somalia, Dayton Bosnia, Operation Desert Fox, etc.) with attempts to preserve social stability at home through ‘reconciliation’ with suitable leaders of oppressed groups (in Canada, New Zealand, Australia and the US).

Second, it provided context for the change of tack made by development agencies, policy advisors, donors and NGOs (of which the World Bank’s 2003 about-face was only the most striking and belated) regarding the suitability of group-based property rights in agrarian land reform.

Yet, for all this, it was a complacent and Whiggish piece of a sadly familiar sort.

In attributing the behaviour, public pronouncements and military interventions of state leaders to the diffusion of some new ‘international morality’, a global ecumene of human rights, it gave a Panglossian rendering of contemporary imperialism that bears comparison to Steven Pinker’s recent fluff.

More serious examinations are needed of the ideology of national guilt. (Since Barkan’s book, prominent academic work on the topic has been the domain of psychologists such as Nyla Branscombe and Bertjan Doosje and, in Australia, Martha Augoustinos and Amanda LeCouteur.)

Chimera it may be, but the distorted vision itself requires explanation.

Collective Guilt

Today the concept of collective guilt finds a dedicated and respectable constituency. It adorns the policy submissions, press releases and website banners of left-liberal and ‘compensatory justice’ circles, i.e. lawyers, lobbyists, state officials and would-be ‘community representatives’.

Adherence is also widespread among what Larissa Behrendt calls ‘an educated, professional class’, the ‘new middle class’ that, so Keating has claimed, Labor governments ‘created’ during the 1980s. (Recall that these policy changes of the  Hawke-Keating government required the ideological foregrounding of the national ‘we’.)

What social foundations account for this common currency of respectable thought?

What historical circumstances license the extension of personal blame, incurred for wrongdoing by an individual, to a group or multi-person entity of which that person is a member?

(This is distinct from the question of indemnifying the individual for injurious acts committed ‘under orders’ or as part of a concerted group project.)

Here Barkan’s book, and the example of the limited-liability corporation, provide a clue.

Both provide historical evidence for the adaptability of ideological constructions to institutional changes: any entity may plausibly be characterized as a moral agent after it has been recognized as a legal personality or subject of right.

For example, the evolution of juridical categories has allowed recognition of the corporate enterprise as a legal person, distinct from its owners or those who founded it, persisting after its original members have departed. This status means the corporate enterprise is capable of buying, selling and owning property, entering into contracts, incurring debts, exercising certain rights and acquiring duties, suing and being sued in its own corporate name, etc.

Juridical accommodation, of course, merely granted legal sanction, ex post, to economic ‘facts on the ground’ (i.e. that a business enterprise was an accounting unit, an independent entity that could undertake transactions with external parties, and had its own balance sheet of assets and liabilities).

Economic and legal developments were then quickly filled with ideological content, the three levels bevelling smoothly to neutralize any potential difficulties arising from the institutional change.

Thus the economic subject  the bearer of property rights  could be represented as a natural artifact, as timeless as a person or a household, rather than as the historical product of contingent economic institutions.

Much as capitalism was personified, during more primitive times, in the heroic and risk-bearing individual ‘entrepreneur’, so the corporate firm has been anthropomorphized.

The corporation as an entity has been discovered to share various characteristics with natural persons: it is capable of wrongdoing, entitled to free expression (‘commercial speech’) and due process, etc.

The question of whether the corporate enterprise qualifies as a moral agent has been a topic of reflection, more or less turgid, from the Harvard Business Review to ANU’s Centre for Applied Philosophy and Public Ethics (CAPPE).

The PR nostrums of ‘corporate social responsibility’ and ‘business ethics’ spring from this unpromising soil.

Corporate Moral Agency

With the rise of the corporate enterprise, the depersonalization of property was accompanied by the personalization of the property holder.

Similarly, when one nation or ethno-regional group may be said, for example, to hold title to property, to have a common seal, to endure in perpetuity, and to be capable (via an incorporated entity, trust, etc.) of entering into enforceable contracts with another party for the transfer or use of that property, it may also coherently be said that another nation or group, having long ago (through its agents) unilaterally seized or confiscated this property ‘for itself’, has collectively abrogated the rightful possession of the first party and thereby committed a wrongful act for which it is morally responsible if not legally culpable.

Hence, in his Redfern speech, Keating’s description of colonial plunder persistently used the anonymous national pronoun: ‘We took the land.’

Keating’s notion of non-Indigenous collective responsibility for the destruction of Australian Aboriginal and Torres Strait Islander societies is the flipside to the Australian governing elite’s assignment of group-based ‘land rights’.

Mortmain, belatedly acknowledged, imposes liability on whatever party has infringed it.

Thus Gareth Evans, introducing Keating’s Native Title bill to the Senate in 1993:

We do owe our indigenous peoples, our Aboriginal and Torres Strait Islander fellow Australians, a huge debt for the destruction and dispossession that we non-Aboriginal Australians wreaked for over 200 years of Australian history. I hope that, by passage of this legislation tonight, we have repaid just a little of that debt.

Features of contemporary society are thus projected backwards onto the history that preceded them: groups or nations, having become subjects of economic right in the present day, are observed to have been so all along (the corporate form presumes they live infinitely). And, the distribution and re-distribution of property having been everywhere a bloody affair, this status can be shown to go along with that of moral agency.

The nation, like the corporate enterprise before it, is ‘personalized’. And, with a regretful shrug, it is declared that one nation’s deprivation today follows, obviously enough, from another’s pilfering yesterday.

Ethnicity, Inc

As with the pieties of corporate ‘conscience’, personalization of the ethnos as a collective moral actor is treated, for the most part, as a salutary event. At any rate, its consequences for contemporary ideology and PR are not nugatory. It provides a set of shared premises and underpinning assumptions for polite opinion, and supplies intellectual justification and publicity cloak for official policy.

A vision of the nation as moral agent allows legal scholar Martin Krygier and Robert van Krieken to remark, approvingly quoting Keith Windschuttle, that ‘the debate over Aboriginal history goes far beyond its ostensible subject; it is about the character of the nation’:

We are members of a nation… [We] did come here and we did some things and not others. We must come to terms with what we did.

And thus recent efforts by agrarian reformers, development agencies (e.g. the World Bank), NGOs and imperialist states (USAID) to extend private-property rights into previously un-enclosed domains, by conferring ethno-regional groups with collective title to ‘customary land’, have also allowed, if not generated, the converse notion of national or collective guilt.

(And with that has come a variety of unpleasant paraphernalia, most notably tit-for-tat games of reciprocal plunder in central African ‘ethnocracies’. Here ‘restitution’ or compensation for past wrongs is frequently advanced via collective retribution, criminal sanction, asset seizures or punishment conditioned on ethnic identity, lineal descent or kinship, language or residence in a specific territory.)

Official recognition of ethnically-based ‘group rights’ typically involves the assignment of property rights to land, minerals or other scarce resources. (Meanwhile, culture may ‘congeal into a naturally copyrighted, legally protected collective possession; in other words, into genetically endowed intellectual property.’)

These rights may be used by group leaders to bargain for a share of the rent yielded by production using those resources. Access is exchanged for ‘benefit-sharing’ (as royalty payments, licence fees, etc).

The degree of bargaining leverage, and thus the share of rent captured, may be increased by appealing to nationalism, collective guilt and other supporting ideologies.

The Australian case can stand as an example. Group-based property is vested in a registered trust or other incorporated entity. These bodies are legally administered, ‘on behalf’ of communal owners, by salaried functionaries.

Senior figures enjoy a measure of managerial autonomy. This includes the right to negotiate, on behalf of the ‘community’, ‘informed consent’ deals with mining companies, to grant licences and commercial lease agreements (e.g. Indigenous Land Use Agreements and Native Title Agreements), and thus to strike rent-sharing contracts.

Bargaining power depends on what, in practice, are veto rights over commercial development (though they can be overruled on grounds of ‘national interest’).

Negotiated agreements channel into trust funds a portion of revenue from mining operations. A large share of these payments (>40%) is allocated to administrative expenses (consultants, legal advice, operational budgets, etc.) which the organizations can be expected rationally to maximize.

In 2010-11, for example, the Northern Land Council received a royalty-equivalent payment of $28 million from the Aboriginals Benefit Account (ABA) to cover administrative costs, and $9 million from the ABA for onward distribution to royalty associations.

That financial year the Northern Land Council spent $2 million on consultants and $3.3 million on travel expenses. The Chief Executive Officer received total remuneration (including salary, spending allowance and performance bonus) of $172 000. The five other senior executives each received salaries of $126 000.

This middle class of salaried bureaucrats and contractors absorbs a portion of the social surplus product.

As living standards for the vast, propertyless majority of Australian Indigenous people have stagnated or declined, the transfer of wealth and influence to these functionaries and ‘group representatives’ has been the material basis for ‘reconciliation.’

Aboriginals Benefit Account - royalty equivalents

Indigenous Land Use Agreements

Ideological support for this transfer, on the other hand, comes from various pieces of bienséance that since 1991 have gone by the name ‘reconciliation’.

The latter is an official project to build ‘partnerships’ between Indigenous people and ‘the wider community’ (sic), weaving ties between Aboriginal and Torres Strait Islander ‘representatives’ and ‘government, business, peak organizations and community groups.’

The origin of this enterprise may be dated to the third quarter of the twentieth century, and to policy decisions made by loyal servants of the Australian state from across the partisan spectrum: Hasluck, Beazley, Woodward, Barnes, Coombs, Chaney.

Kingpins of the business establishment  mining companies, banks and corporate law firms  were enthusiastic bankrollers. Behind this, obviously, lay calculations of advantage and expedience.

Suitably repackaged for public consumption in the progressive language of ‘self-determination’, state policy won warm support from the periphery of the political world (lobbyists and well-meaning ‘activists’). It was fortified by the intellectual connivance of eminent academics (anthropologist Bill Stanner and ‘left-wing’ historians Henry Reynolds and Ann Curthoys). Several of the latter were patronized by Kirribilli House and launched by the mainstream media.

The sycophancy with which Keating is unanimously remembered says much about this milieu.

Key flanks secured, the project won the public battle of ideas easily, attracting a nod of legitimacy from editorial sages, press commentators, talking heads and nearly the entire spectrum of respectable opinion. (The noisy opposition of sectional interests, though intermittently useful enough to be given a public airing, was weak; it exercised little independent influence on state policy.)

Tactical disagreements on the scale and destination of disbursements aside, elite comity reigned on the need to share the spoils. With conventional wisdom thus debauched, the broad population was easily disoriented.

Collective guilt forms a central thread in the ideological tangle that Mick and Patrick Dodson like to call, in a telling phrase, Australia’s ‘unfinished business’. The nature of this venture may be gleaned from the elder Dodson’s remarks about the Northern Territory ’emergency response’, made upon accepting the 2008 Sydney Peace Prize.

Hailing the previous day’s electoral coronation of Barack Obama, Dodson declared the ‘need for consultation, negotiation and partnership in dealing with any sector of the Australian community on whatever the issue.’ The NT intervention, in particular, was ‘pre-emptive, non-negotiated… crude, racist and poorly considered public policy.’ The government needed to ‘enter into a dialogue and negotiation over the nature of the engagement’.

Thankfully the Rudd Labor government, like Obama’s incoming administration, was seeking to avoid such ‘administrative disasters’, by recruiting accomplices from within ‘the Aboriginal Community’ to collaborate in ‘planning and implementation’ of such strategies, and in ‘governance delivery.’

‘Aboriginal-controlled organisations’ must have ‘roles in the delivery of the communications, education and social revolution’. Meanwhile aspiring young community leaders should ‘look to where they might maximise their participation in the strategies being put together by Industry and Government’.

The historical pre-condition for the emergence of Barkan’s ‘neo-Enlightenment mentality’  the enlargement of the liberal framework to include ‘the place of community’ and group rights  was a political development whereby national membership came to endow people with ethnically-based claims to wealth (e.g. in which a ‘tribe’ could claim ‘customary’ ownership of a tract of land or other scarce resource).

Since the birth of industrial capitalism, technical innovations have meant a growth in the scale of production. This has been accompanied by gradual ‘de-personalization’ of the holder of title to property (the subject of right).

As the quantity of capital inputs required for production has increased, the asset owner has taken on a succession of more dispersed and ‘abstract’ forms: from the wealthy individual, to the family, the joint-stock company, the state-owned company and the institutional investor (pension or mutual fund).

Not all of these entities possess the attributes conventionally required for an entity to have moral responsibility: the capacity to hold beliefs, form goals, make decisions or undertake actions.

This does present problems for smooth ideological functioning of the existing system. The attempt to align economic, legal and moral categories cannot be supported, except by theoretical legerdemain or speciousness.

Here the categories of moral agency and legal personhood strive vainly for the flexibility of mainstream economics. For the latter, the rational agent may be ‘sometimes an individual, sometimes a household, sometimes a firm, sometimes a nation, and so on, depending on the demands of the problem and modeling convenience.’

Yet, though the nation may be an object of solidarity, affiliation and identification, it lacks any of the features that qualify the category for moral agency.

A business enterprise, on the other hand, may be held vicariously liable for the wrongs of an employee under the doctrine of respondeat superior.

Under the terms of the ’employment relationship’, the employee agrees to surrender, for a specified period, disposition over his labour. Having hired out his capacity to work, the employee must carry out the commands of the employer or managerial agent:

We will say that [the boss] exercises authority over W [the worker] if W permits B to select x [a ‘behaviour,’ i.e., any element of a set of ‘specific actions that W performs on the job (typing and filing certain letters, laying bricks, or what not)’].

That is, W accepts B‘s authority when his behaviour is determined by B’s decision.

In general, W will accept authority only if x0, the x chosen by B, is restricted to some given subset (W’s “area of acceptance”) of all the possible values. This is the definition of authority that is most generally employed in modem administrative theory.

Employees are contractually obliged to obey or comply with the directives issued by owners or their managerial delegates, whose commands have presumptive validity. The owner, who is the residual claimant of the firm’s profit (income net of wage and other input payments), is given the legitimate right to exercise authority and make decisions concerning the use of the firm’s income-generating assets or capital goods.

The administrative hierarchy of other multi-person organizations (e.g. armed forces) is organized according to a similar pyramidal command structure. It is this unified decision-making structure that makes it reasonable to attribute responsibility for actions to the collective entity rather than the individual atoms of which it is composed.

Thus we can say e.g. ‘the German Sixth Army beat a hasty retreat’ or ‘BP fouled up the Gulf of Mexico.’

It is of course possible to attribute causal powers to other types of social aggregates or collective actors  besides military command structures, business enterprises with administrative hierarchies, and incorporated legal persons that can enter into contracts and incur liability.

In some circumstances, the existence of certain institutions (e.g. political parties or strike committees) or a commonality of social position or interest (due to comparable degree of wealth) may give rise to group deliberation and conference, the emergence of decision procedures (whether formal or informal), mutual cooperation, collusion, unitary organization, the concerted exertion of purposeful effort, and joint action in pursuit of shared goals.

Thus it is permissible to say ‘the Pittsburgh Steelers won the Super Bowl’, ‘the German propertied classes turned in desperation to Hitler’, ‘the orchestra played well’, ‘the financial elite demanded that priority be given to low-inflation policies’ and ‘the gang knew they were done for after getting caught burgling the jewellery store’.

On the other hand, the idea, voiced publicly with increasing confidence throughout the 1990s, that a nation or an ancestral or ethno-regional group is a kind of supra-individual actor, a moral agent with responsibility for its actions, is neither philosophically respectable nor long-standing. (Here George P. Fletcher borrows Searle’s concept of ‘we-intentionality’ to argue for the idea).

Sorry book

I’ve devoted several posts here to criticizing the notion of collective responsibility for so-called ‘national’ wrongdoing, of popular liability for ‘acts of the nation itself’ (William Deane).

Conceptually, it leads from the miasma of the Volksgeist and the volonté généralevia the numerus clausus to the postwar atavism of collective reprisals.

Or else, evading obvious bloodletting or race hatred, it strides confidently into political quicksand.

Members of oppressed groups are encouraged to express solidarity with their ‘nation’ or ethno-regional group as the vehicle for salvation and personal advantage.

With the group becoming the primary object of affiliation and identification, broader political alliances based on common social positions are precluded, to the benefit of careerist national representatives. Ethnic tensions displace class antagonisms. Frustrated hopes for economic security and social betterment may then be consoled and redeemed by symbolic victories.

Thus, whatever their obedient publicists in the media and academy may say, group-based rights and the ideology of collective guilt have helped to sustain the widespread misery of Indigenous Australians (mass unemployment, incarceration, absent services, missing infrastructure, low life expectancy), rather than remedying or ameliorating it  or merely failing to do so sufficiently.

The latter deplorable circumstances persist because of them, in part, rather than despite them.

Now officially consecrated in public memory, their emergence in establishment discourse merits no fond elegies.


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