Natural law, historiography, and Aboriginal sovereignty

From the 1970s onwards the juridical and political cultures of common law settler societies — Canada, New Zealand, and Australia — witnessed a wave of activity focused initially on claims to native land title and latterly on a broader array of indigenous rights placed under the umbrella of indigenous sovereignty.1 This activity was driven by the post-war decolonising agendas of international law, national land rights movements, revisionist academic work on colonialism, and constitutional and juridical reconsideration of the forms in which indigenous peoples had been dispossessed of their lands during the period of European imperialism and colonialism. In the Australian context a particular style of historiography provided significant impetus for the juridical construction of native title rights by aiming to overturn what was claimed to be the historical misunderstanding on which the earlier failure to recognise native title was based. Embodied most forcefully in the writings of Henry Reynolds, this historiography sought to expose the error involved in the legal category under which the British annexation of Australia was supposed to have taken place, terra nullius: variously, land uninhabited, belonging to no-one, or without a sovereign

The history of theory

Do you see now why it feels so good to be a critical mind? Why critique, this most ambiguous pharmakon, has become such a potent euphoric drug? You are always right! When naïve believers are clinging forcefully to their objects ... you can turn all of those attachments into so many fetishes and humiliate all the believers by showing that it is nothing but their own projection, that you, yes you alone, can see. But as soon as naïve believers are thus inflated by some belief in their own importance, in their own projective capacity, you strike them by a second uppercut and humiliate them again, this time by showing that, whatever they think, their behavior is entirely determined by the action of powerful causalities coming from objective reality they don't see, but that you, yes you, the never sleeping critic, alone can see. Isn't this fabulous? Isn't it really worth going to graduate school to study critique

Religious Offences and Liberal Politics: From the Religious Settlements to Multi-Cultural Society

In this paper I will argue that some of the key features associated with modern liberal political orders - particularly in the areas of religious toleration and cultural pluralism - are the result of specific political and legal arrangements arrived at by European states in order to contain religious civil war at the end of the seventeenth century. As such, liberal political and legal regimes contain features which are irreducible to their main modern forms of philosophical justification, some indeed which conflict with such justifications. One can of course respond to this state of affairs by declaring the actual historical arrangements to be merely factual or "non-ideal" in relation to the normative or ideal domain of political or moral philosophy. To do this, however, is to risk overlooking the normative dimensions of the historical arrangements themselves - in this case the early modern religious settlements. But it is also to risk a kind of philosopher's self-delusion, in which it is imagined that political norms arrived at through rational introspection have an intrinsic moral force, regardless of their capacity to engage the historical political-legal order and the personae engaged in its day-to-day operations. This paper explores the contrary course. It offers a sketch of the political and legal order established by some of the early modern religious settlements, and then argues its salience for understanding the character of multi-religious and multi-cultural governance in certain modern liberal states, with particular reference to such religious offences as sacrilege and blasphemy. The post-Kantian political philosophies developed by John Rawls and Jurgen Habermas can be cited in passing as prime examples of modern philosophies that fail to engage the political and legal orders arising from the early modern settlements, except to declare them in need of philosophical reconstruction or historical supercession. Rawls and Habermas are not topics of discussion in the present paper, and they are mentioned here only to illustrate the gap between modern justifications for liberal-democratic politics and the forms in which liberal political orders first emerged from the settlements that brought an end to religious civil war at the end of the seventeenth century. Despite important differences in method, Rawls and Habermas both assume that the heart of liberalism lies in justice, understood in terms of principles of political and social rights grounded in the rational consent of democratic citizens. On this view, the political and legal arrangements imposed by early liberal orders - toleration measures, church-state separation - will not be properly legitimate until they have been freely chosen by rational individuals who will see them as necessary for their own exercise of reason (Forst 2003). Yet, as Raymond Geuss has pointed out, the central norm of much early modern political thought was not justice but security or social peace (Geuss 2002). Further, many early architects of religious toleration regarded the notion of a single universal reason not as the foundation but as a threat to the cultural pluralism required for toleration, which they sought to ground in a suitably de-confessionalised political and legal regime, regardless of whether this was democratic (Hunter 2004; Thomasius 2004). If modern philosophical liberalism is significantly disengaged from the historical architecture of toleration and pluralism, however, then its communitarian critics are even more so. This is because they take Rawls at his word and assume that he is indeed the philosophical architect of the liberal political order, so that in attacking his philosophical discourse they are attacking something called liberalism. Catholic and Communitarian philosophers have thus taken it on themselves to attack something called liberal individualism, by treating this as the unfortunate product of the fracturing of communal moral identity during the Reformation (MacIntyre 1981). They have also criticised the supposed rational neutrality of the liberal conception of justice, in particular its attempt to ground religious freedom in the exercise of free rational choice, rather than in the right to pursue a substantive good characteristic of a group moral identity (Sandel 1998; Galeotti 1999). And finally they have attacked the presumed neutrality of key aspects of the liberal order itself, specifically the separation of church and state, arguing that this is simply a disguised moral commitment, similar to the commitment to theocracy, and that only full democracy can resolve the question of which commitment should determine the political order (Bader 1999). If, however, the emergent liberal order was not grounded in a conception of justice - Kantian or Aristotelian - then much of the communitarian critique of liberalism is beside the point, regardless of its standing as a critique of Rawls. Further, if security and social peace did indeed play a key role in motivating and justifying liberal arrangements for toleration and the separation of church and state, then it is idle to attack early liberalism for lacking substantive norms, even if these norms are not those of a moral community, are quite unlike Aristotelian conceptions of an inherent moral telos, and could not possibly have been arrived at through democratic deliberation. The reason that early liberalism looks so unlike that which Rawls defends and the communitarians attack is that it was not based in a set of arguments about the nature of human reason and morality. Rather, it was based in a set of political and legal measures designed to address a particular historical situation characteristic of central and western European states during the sixteenth and seventeenth century. This situation was that of religious civil war in France and England, and, in the German Empire, a mix of two kinds of religious war, civil and inter-state. In what follows, it is argued that the key elements of early liberalism - varying degrees of toleration and church-state separation - formed part of the religious settlements that brought these wars to an end, a symptom of which was the increasing redundancy of such religious crimes as heresy, witchcraft and blasphemy. These settlements, it is argued, laid down the central cultural, political and legal protocols for the liberal governance of multi-religious societies. And if we are to understand the role of these protocols in the governance of emerging multi-cultural societies, then we must attend to their historical gravity and force, rather than to their philosophical defence or critique. To do this, I will begin by briefly looking at the context in which religious offences operated in pre-liberal confessional states, then sketch the manner in which such offences were displaced by the terms of the religious settlements, before concluding by looking at recent discussion of the crime of blasphemy in the context of multi-cultural societies

Arguments over obligation: Teaching time and place in moral philosophy

The paper concentrates on two questions: first, the problem of how to introduce students to philosophical argument in a contextualised and pluralist manner; and, second, the question of what kind of texts such a pedagogy requires at its disposal. The two questions are of course intimately related, as the dominance of the single-aim present-centred approach brings with it a highly selective publication of the archive, in editions typically suited to the aims of rational reconstruction rather than historical investigation

English blasphemy

Some have seen the desuetude and final abolition of England’s blasphemy laws in 2008 as the belated triumph of a liberalism grounded in individual rationality and consent. Postcolonial scholars, though, have interpreted the decriminalisation of blasphemy as symptomatic of the ideological role of liberal individualism, acting on behalf of a secularised nation-state, in repressing immigrant communities committed to the political exercise of religion. In showing that modern English blasphemy laws arose with the formation of the Anglican confessional state, forming part of its political theology and jurisprudence, this article argues that the abrogation of the laws signified neither the victory of rational individualism nor the triumph of a repressive secular state, but the final undoing of the Anglican settlement by an opposed political theology and jurisprudence

Theory time: on the history of poststructuralism

When something called theory first announced its presence in the 1960s humanities academy it did so by demanding that an array of disciplines — initially ‘English’, history, and sociology — recover the hidden conditions of empirical experience and knowledge. During the 1980s this mutated into a demand that identities locked into various kinds of intellectual closure should be opened through exposure to protean fluidities: linguistic différance, unprescripted ‘events’, unsettling ‘others’. For a long time these structuralist and post-structuralist demands have been thought of as justified by the hidden realities that they appear to bring to light. This lecture heads in a different direction. Rather than approaching theoretical self-interrogation in terms of what it reveals beneath empirical activities, it treats this self-interrogation itself as a particular kind of empirical activity. This is the activity that Peter Brown, Pierre Hadot and Michel Foucault have characterised as a ‘spiritual exercise’, dedicated to intellectual self-transformation, and oriented to reshaping the manner in which a suitably educated elite will accede to knowledge. Once ‘theory’ has been reconceived as an empirical activity in this manner then it becomes possible to constitute it as an object of contextual intellectual history. One can ask what acts are accomplished through this activity, to what ends, and in accordance with what cultural and political programs. In providing some indicative answers to these questions, the lecture outlines an approach to the intellectual history of post-1960s humanities theory

Parliament and Prayer

Not all Parliaments in Australia have said Parliamentary prayers since their establishment. But the practice gradually became established and is now the norm. As I will outline, this practice didn’t meet universal approval when first instituted – and it is increasingly being brought into question in modern times