The question 'where do rights come from?' is as important as it is boring. Therefore, as many Star Trek analogies as possible will be incorporated into this unplanned but obligatory political-philosophic-follow-up to Keith's last post.
Spending the better part of last evening talking to Keith to figure out his objections to the Treaty of Waitangi's 'contemporary relevance' as per our Symposium panel brief, was seriously complicated by Keith also not believing in:
- rights as deriving from anything but guns;
- rule of law;
- constancy of the historical principles of democracy, or value in looking for any;
- natural justice, natural law or natural rights.
...So far so Hobbesian/pre-Federation Klingon.
But here's the killer. He also doesn't appear to believe in:
- the relevance of any law passed, right accorded, or treaty signed prior to the parties involved attaining the universal franchise (presumably in a Western liberal-democratic modern nation-state mold - you know, like a civilisation that has acquired the warp drive)
And at the same time, he does believe in:
- the current principles of democracy;
- and that they should be enshrined in law in the form of a written constitution;
- thereby guaranteeing us our rights;
- and providing us with a better basis for national identity than the Treaty of Waitangi.
The obvious addendum would be:
- although the written constitution, rule of law, and the guarantee of our rights would provide as little guarantee as anything before it, if we didn't have enough guns to enforce it.
This seems to be a kind of unstable approach. It's kind of like the ambivalent, fragile foundations of the initial peace between the Klingon delegation and the Federation in Star Trek VI: the Undiscovered Country, the gappy accommodation between brute-force and a brand-new foundationless shine of Federation democracy. Here's the crux of his argument:
“Nobody believes that our right to be in New Zealand is derived from Her Majesty, right?...the government gets its right to rule from the people, not the other way around… So why then should we take seriously the idea that our right to be in New Zealand comes from the Maori chiefs who signed the Treaty?... The idea of the Treaty of Waitangi as the source of our rights as citizens contradicts the reality of our political system...”
The whole 'irrelevance of laws passed by unelected leaders now dead' line is pretty difficult to take seriously at all from a legal perspective. Since Keith brought it up again, the Magna Carta was signed by 13th century English feudal lords, arguably governing far less democratically than 19th century rangatira. From what I can tell, it is the basis of our contemporary legal right to be free from the absolute rule of Kings. Is that a contradiction of our modern democratic system or its very beginning?
Why do people hate common-law constitutions so?
What's the problem Tuvok? What are these rights that we Aliens have derived from this Treaty?
Although Keith seems to have conflated them rather... illogically ...there is a difference between
a) how 'the Crown' accessed the right to govern New Zealand
b) the way we acquire/d the right to have citizenship in general and whatever rights citizenship gave you at the time
c) the way we accessed our right to control the government as democratic citizens.
a) Governing rights
The Crown accessed the right to govern through the Treaty of Waitangi. Legally, that's what happened. If Keith wants to say it was a 'legal fiction' because only guns and/or democracy matter now and the 'Crown' has no real power, then we might as well be doing Star Trek metaphysics about whether it's possible for Riker to have real feelings for his imaginary holodeck girlfriend who was programmed on a real person somewhere but she died down a wormhole in the Delta Quadrant (probably trying to leap away from his horrible saxophone playing).
b) Citizenship rights
I suppose the Treaty of Waitangi enables the successor of the British Crown to govern citizenship in a land that is no longer Britain. If that is indirectly the source of the right of the government to grant New Zealand citizenship, so what? What's the problem? You can't just colonise a country without getting consent from who was there first, unless you're Australia and pretend that no-one was there.
But Keith equates citizenship with the right to participate in government, possibly sees it as a fundamental human right (depending on whether he's feeling Hobbesian or Liberal) and due to a weird understanding of the purpose of law itself, 'feels' miffed and alienated that this inviolable right actually appears to be 'sourced' in some dead Maori chief, rather than in, say, a written constitution (which would inevitably include the same dead Maori chief).
Okay then. Who believes laws and rulers are fountains from from which rights spurt as if from heaven? Anyone? Now, who believes that rights and freedoms are fundamental to our understanding of our own nature as human beings in human society, and that laws are made to express that? What's wrong with interpreting how we should deal with each other's rights from historical laws and treaties signed by people who were expressing ideas about their rights that are not remarkably different from our own ideas?
Is the past not only another undiscovered country, but another planet? Are our ancestors, in fact, aliens?
c) Democratic rights
I think Keith is barking up the wrong tree here, because citizenship doesn't necessarily give you access to the right to participate in government, unless the citizens have managed to get that access. The way Tangata Tiriti accessed our right to control the government though elections as democratic citizens was not through the Treaty of Waitangi. It might have been a mixture of guns and withholding sex. I don't think Maori claim to have given it to us. Elections that is, not sex.
Keith wants a 'national identity document' that encapsulates all of the ways we get our rights - ie, a written constitution. Fine, but why just bag the Treaty? It's kind of funny and alien-like that Keith finds these rather pedantic concepts about the irrelevancy of the Treaty to be personally relevant to his life, although we both agree that the audience at the Symposium would probably find it totally boring and irrelevant, and so we probably won't talk about it there in our 'relevancy of the Treaty now & in the future' segment. With regard to the Treaty, I'm more interested in the ways we can use it than the ways that we supposedly can't, or the things that it supposedly isn't. I don't think it's so crazy to think the principles of active protection, partnership, mutual recognition, engagement and reciprocity are rather useful for building a culturally-deep civil society. I am also going to include pictures of graff-painted skateboards in my Powerpoint presentation on 'Asian Youth' opinions. I think that will also help with the cultural depth, and with the pretense that I am young.
The other in-depth disagreement Keith and I had during our discussion, was over who was funnier, him or me. I thought that we were probably about as funny as each other. Keith was certain that he was way funnier than me. Here's something to agree on though: this is probably the most boring post I've ever written.