Tackling the race ruckus   17 Sep 2014

In a speech entitled ‘Race has no place in the law’ given at ACT’s Waikato Conference on July 26, 2014, the ACT Party Leader, Dr Jamie Whyte, a philosopher, advanced the proposition that ‘Maori are legally privileged in New Zealand today, just as the Aristocracy were legally privileged in pre-revolutionary France.’ This meant, said Whyte, that ‘[a]fter the coming election, ACT’s MPs will work to have all race-based laws repealed.’ That process, apparently, would include the longstanding ‘Maori electoral roll and Maori Seats’.

Four days later, on 3 News, Maori Party co-leader, Tariana Turia, called Whyte’s comments ‘“straight racism”.’ In an article published in The New Zealand Herald later that day, New Zealand’s Race Relations Conciliator, Dame Susan Devoy, a four times world champion squash player, had this to say: ‘Equating Maori New Zealanders to French aristocrats who were murdered because of their privilege is a grotesque and inflammatory statement.’ In a speech at a public meeting held in New Plymouth that evening, Whyte complained of the ‘vitriolic hostility’ from various quarters that had greeted his assertions that ‘there is no place for race-based laws in New Zealand.’ The following day, July 31, in an ACT press release, Whyte said Devoy ‘should resign’, claiming that her ‘condemning’ of his ‘speech calling for racial equality . . . would be nothing more than a sign of ignorance if she were still a professional squash player.’ Whyte himself seemed genuinely aggrieved in his New Plymouth speech that his critics had failed to engage with his central argument: ‘By tackling the man rather than the ball, they reveal their inability to show where my argument goes wrong.’ Whyte was convinced that Devoy either had not read his speech or ‘can't think straight.’ On one level, Whyte’s frustration was understandable as his logic is impeccable: an argument to remove the concept of race in law cannot be racist. But the logic of that argument is not where the problems lie.

These problems commonly occur when a speaker or a writer who is advancing a proposition fails to distinguish between (notional) ideas and (material) things, while adding meaning as a predicate to a sentence, or, more broadly, when appending values to the objects of an argument. In this case, Whyte treats notional objects such as ‘personal responsibility’, ‘privilege’ and ‘legal equality’ as ifthey were empirical, stable in meaning and universally understood as he understands them. However, all his speech’s key ideas are semantically insecure and, of course, intangible. Indeed, none are present to consciousness outside a system of (linguistic) differences. Hence, Whyte confuses consecution with consequence, and ‘real’ outcomes with the ideas that caused them.

So let us test this proposition by taking up Whyte’s challenge to tackle the ball, beginning with the one Devoy intercepted: Whyte’s making contemporary Maori analogous with the aristocracy in pre-Revolutionary France. Here we encounter a related and also common problem but one seldom explained: if a multiple singularity such as ‘Maori’ or ‘the French aristocracy’ is not enumerated or otherwise delimited in advance of having a value added to it, it will remain an amorphous group (or set) to which any possible value can be added. In short, what enables Whyte to make these two groups analogous is the value ‘privilege’ he has added to both in the sentence expressing his argument. That is, it is only Whyte’s say-so, literally his ‘speech-act as an act of authority’, that enables him to make this comparison. Thus, while the improbable nature of his analogy has been commented on by critics of his argument, and even touched on by Whyte himself, that is not its fatal flaw. Rather, it is the attachment to both groups of a universal value that can also be attached to any number of groups by anyone, anywhere, that renders Whyte’s argument meaningless in and of itself.

When we tackle the question of race on which Whyte’s broader argument rests, we encounter a similar problem, the treating of race as if it were observable, which Whyte does by anthropmorphizing the law: ‘there are many areas where New Zealand law fails to be properly blind to race.’ But race, of course, has no empirical credentials despite the catastrophic consequences it has had for humanity for over five hundred years.

To elaborate, race as an idea expressing human difference arguably first emerged in European consciousness in connection with the Spanish ‘blood laws’ of the fifteenth century by which Jews and Muslims who converted to Christianity during the Reconquista had the integrity of their professions and therefore their right to remain on the Iberian Peninsula tested on the basis of bloodline. Subsequently, Johann Blumenbach’s Anthropological Treatises of the late eighteenth century proposed a ‘scientific’ basis for human ‘varieties’ or ‘races’ by placing humans beings, according to physical characteristics, into five discrete categories, Caucasian, Mongolian, Ethiopian, America and Malay, the last of which Blumenbach arrived at after studying material, including illustrations of ‘New Zealanders’, Joseph Banks had collected during Captain James Cook’s first voyage of discovery (1768-1771). In the nineteenth century, anthropologists and ethnographers rushed to taxonomize ‘racial’ difference at the outer edge of empire as Europeans expanded their geopolitical influence around the globe, thereby further elevating the concept of race as a science, and eventually into a twentieth-century political ideology with its own catastrophic outcomes.

The destructiveness of race was made clear in a statement published by UNESCO in 1950, the draft of which had been prepared in Paris by a team of experts including New Zealand’s Professor Ernest Beaglehole:
The biological fact of race and the myth of “race” should be extinguished. For all practical social purposes “race” is not so much a biological phenomenon as a social myth. The myth “race” has created an enormous amount of human and social damage. In recent years it has taken a heavy toll in human lives and caused untold suffering. It still prevents the normal development of millions of human beings and deprives civilization of the effective co-operation of productive minds. The biological differences between ethnic groups should be disregarded from the standpoint of social acceptance and social action’ (8 §14).

Finally, the Human Genome Project (1990-2003) put an end to the possibility that race had any scientific basis: ‘DNA studies do not indicate that separate classifiable subspecies (races) exist within modern humans. While different genes for physical traits such as skin and hair color can be identified between individuals, no consistent patterns of genes across the human genome exist to distinguish one race from another. There also is no genetic basis for divisions of human ethnicity.’
Given the above, Whyte, the philosopher, would have been better advised to depoliticize race by arguing for its expungement from our politico-legal vocabulary, including its use in the title Office of the Race Relations Conciliator, rather than, as a politician, casting aspersions on Devoy, and describing Turia in his New Plymouth speech as ‘a woman who leads a party with an explicitly race-based agenda’, not least because both women have made valuable contributions to the society that he too hopes to improve.

When it comes to tackling the principle of equality before the law we once again encounter the now familiar problem: the treating of ‘legal equality’, an idea, as if it were stable in meaning and somehow tangible. Whyte achieves this impression by using the ideas of collective and personal responsibility as markers of human progress within historical time, which itself is a cultural construct, the product of early modernity, and likewise intangible. As his argument goes, ‘collective responsibility’ and its corollary ‘“identity politics”’, which have ‘ancient roots in mankind’s tribal history’, have been overcome by ‘personal responsibility’, which, Whyte claims, is not only ‘one of the great achievements of modern civilisation’ but is also responsible for ‘the principle that everyone is equal before the law.’ However, not only is this a Eurocentric narrative in thrall to Hayekian politico-economic theory, which itself espouses the superiority of individualism over collectivism, it is also apparent that personal and collective responsibility are not mutually exclusive ideas but ones that most of us manage in tandem quite happily, as Whyte himself appears to do: he belongs to a collectivity, the ACT Party, through the promotion of which, he, as a personally responsible individual, hopes to make a positive difference to that even bigger collectivity to which he also belongs: New Zealand society. In short, Whyte’s promotion of personal over collective responsibility, code for nationhood over tribalism, of free-market capitalism over socialism, is a rhetorical device serving a political agenda rather than sound philosophical argument.

Interestingly, Whyte’s attempt to authenticate his claim on historical grounds, fails in much the same way that René Descartes’ founding statement of modern subjectivity, ‘I think, therefore I am’, fails to surmount the illusory nature of the subject’s meditating existence: the ruminating ‘I’ needs to know it exists before it can know it is thinking, and, as Eric Idle’s ‘The Philosophers’ Drinking Song’ suggests, any universal activity could have produced the same result: ‘I drink, therefore I am’. Furthermore, while Whyte promotes the beneficence of modern industrial society, based as he appears to believe it to be on the Cartesian ‘I’, he fails to point out that ‘Western civilization has been the site of a massive contradiction between its values and its politics, its philosophy and its action, its creed of equality before the law and its actuality of inequality before the fact.’
Whyte’s reliance on ‘the image of Lady Justice’ in his Waikato speech is also instructive: the image, intended by way of personification to make equality before the law seem real or possible, is as mythical as the law’s foundation is mystical. That is, the law is not so much predicated on ideas such as equality and justice as it is on violence, both linguistic and physical. To explain, because the law cannot precede itself, it depends for its authority on an ‘anterior legitimacy’ and therefore cannot come into existence except by way of ‘a coup de force’. Put otherwise, in order for the law to validate itself it must treat its current circumstances as if they existed before it came into being, which it can only do interpretatively after the event. Thus the need for the law to establish its authority prior to its existence marks the limit of the law and the beginning of its mystical authority. Hence concepts such as legal equality and justice, admirable though they may be, are in essence unpresentable and in that sense always to come, making any (perceived) experience of them illusory. In regard to the second form of violence, that is readily explained by the phrase ‘“to enforce the law”’, which tells us that there can be no justice without enforceability.

Thus we can see on both counts that Whyte’s argument for ‘legal equality’ is not only fraught but impossible. This is apparent in the effective replacement of Maori customary law by English common law, an act of violent displacement that is itself the very essence of inequality: not only did the latter succeed by making the former, its juridical other, unequal through force, it also declared a ‘nullity’ in October 1877 the February 1840 treaty that had acted as the Crown’s instrument of cession, and did so on the basis that tribal societies were unequal with nation-states because they were incapable of possessing and ceding sovereignty (Wi Parata).

Space does not permit the formation of a ruck around Whyte’s tackled ball, the narrow claim in his Waikato speech that ‘the Treaty of Waitangi gave Maori property rights over the land they occupied’, except to say that even on a conventional reading of the two Treaty texts it is apparent that Article Two of Te Tiriti o Waitangi, the te reo version most rangatira signed, also gave tangata whenua absolute authority and power, that is, sovereignty, over its lands—‘te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa.’ This position is not only in keeping with Maori’s then vastly superior numbers but is also consistent with the independence announced in He Whakaputanga o te Rangatiratanga o Nu Tireni five years earlier. Indeed, that rangatira even signed Te Tiriti o Waitangi compellingly suggests that they only did so on condition that sovereignty was retained, not ceded as the largely unsigned English-language text purports at Article One.

Likewise, when Whyte points to ‘the Maori electoral roll and Maori seats’ and ‘the Resource Management Act’ to argue his case for Maori privilege in contemporary New Zealand law, he elides from his argument the Crown’s ‘usurpation of cultural and political power’ and the numerous examples of tangata whenua’s apparent inequality before the law post-1840, including the so-called Ruatoki Terror Raids of 2007 when the New Zealand Police terrorised innocent Tuhoe children and families, denying them basic human rights after setting up a roadblock along the line of demarkation where, in 1866, Tuhoe lands had been divided off and confiscated by the Crown and near where, in 1916, the Tuhoe prophet, Rua Kenana had been arrested on dubious grounds and one of his sons and another Tuhoe member killed.

Accordingly, it would seem that ACT’s current slogan, ‘“One country, one law”’, is not so much about equality as it is about power. If his genuine goal were equality before the law rather than the continued ‘cultural colonization’ of New Zealand, Whyte, at the least, would be advocating coextensive juridical systems so that laws could be determined by and applied within their respective cultures where a greater possibility for equity no doubt lies. Were he to do so, ACT would need only to change one word of its mantra to reflect this more equitable view: ‘One country, two laws’.

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