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Jeremy Waldron’s Partial Kant: Indigenous Proximity, Colonial Injustice, Cultural Particularism

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Polity

Abstract

Over the past two decades, liberal political theorist Jeremy Waldron has frequently cited Kant’s Metaphysics of Morals in order to claim that unavoidable proximity normatively demands that persons from different cultural backgrounds abide by and actively participate in a common legal framework. For Waldron, cosmopolitanism requires engaging with others instead of pressing for any degree of political separatism. He applies his interpretation of Kant to relations between Māori and Anglo New Zealanders. This essay takes a more comprehensive view of Kant’s writings on international and cosmopolitan right. It argues that Waldron misleadingly presents Kant as opposed to cultural particularism, and offers an alternative Kantian interpretation of Māori resistance to unitary sovereignty, one based on distant mutual respect between communities.

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Notes

  1. Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy and Public Affairs 22 (Winter 1993): 14; “Kant’s Legal Positivism,” Harvard Law Review 109 (1996): 1546; “What Is Cosmopolitan?” Journal of Political Philosophy 8 (June 2000): 240; “Cultural Identity and Civic Responsibility,” in Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman (Oxford: Oxford University Press, 2000), 171; “Redressing Historic Injustice,” University of Toronto Law Journal 52 (2002): 136n7; “Who Is My Neighbor?: Humanity and Proximity,” The Monist 86 (July 2003): 349; “Teaching Cosmopolitan Right,” in Education and Citizenship in Liberal-Democratic Societies: Teaching for Cosmopolitan Values and Collective Identities, ed. Kevin McDonough and Walter Feinberg (Oxford: Oxford University Press, 2003), 27; “Settlement, Return, and the Supersession Thesis,” Theoretical Inquiries in Law 5 (July 2004): 246; “Cosmopolitan Norms,” in Another Cosmopolitanism, ed. Seyla Benhabib (Oxford: Oxford University Press, 2006), 92; “Two Conceptions of Self-Determination,” in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), 410; “The Principle of Proximity,” New York University Public Law and Legal Theory Working Papers 255 (2011), «http://lsr.nellco.org/nyu/plltwp/255», accessed April 5, 2012: 19. I cite only the first mention of Kant’s Rechtslehre §42 in each of the above essays.

  2. Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy, trans. and ed. Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 451–52 (Ak. 6:307). I also cite Kant’s Toward Perpetual Peace from this edition. Translations of “Idea for a Universal History with a Cosmopolitan Aim” by Allen W. Wood, and Anthropology from a Pragmatic Point of View by Robert Louden, appear in Anthropology, History, and Education, ed. Günter Zöller and Robert B. Louden (Cambridge: Cambridge University Press, 2007). All subsequent references to Kant follow the standard practice of citing the Akademie edition by volume and page. When citing Metaphysics and Perpetual Peace, I identify them as MM and PP respectively.

  3. Waldron, “Redressing,” 140.

  4. Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004); and the essays in Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal, ed. James Bohman and Matthias Lutz-Bachmann (Cambridge: MIT Press, 1997).

  5. Timothy Waligore, “Cosmopolitan Right, Indigenous Peoples, and the Risks of Cultural Interaction,” Public Reason 1 (February 2009): 27–56.

  6. Pauline Kleingeld, Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship (Cambridge: Cambridge University Press, 2012), Chapter 2.

  7. Waldron, “Redressing,” 135n.

  8. Waldron, “Settlement,” 239.

  9. Waldron’s thoughts on supersession, proximity, and related concepts are part of his book in progress titled “Cosmopolitan Right.” See, for example, Waldron, “Principle,” 21n50.

  10. Waldron, “What Is Cosmopolitan?” 230, 241.

  11. Waldron, “Principle,” 1.

  12. Waldron, “Two Conceptions,” 398. Cf. “national” self-determination in “Principle.”

  13. Waldron, “Who Is My Neighbor?” 342, 349, 350.

  14. Waldron, “Two Conceptions,” 408, 398; “Principle,” 4; “Redressing,” 135n, 140.

  15. Waldron, “Principle,” 12.

  16. Waldron, “Cultural Identity,” 155n1; “Legal Positivism,” 1545; “Principle,” 7, 11.

  17. Waldron, “What Is Cosmopolitan?” 240.

  18. Ibid., 241.

  19. Waldron, “Legal Positivism,” 1561.

  20. Waldron, “Cultural Identity,” 164–65; “What Is Cosmopolitan?” 230.

  21. Waldron, “What Is Cosmopolitan?” 236, 242, 235; “How to Argue for a Universal Claim,” Columbia Human Rights Law Review 30 (Spring 1999): 313.

  22. Waldron, “Cultural Identity,” 171, 168, 170; “What Is Cosmopolitan?” 234.

  23. Waldron, “Cultural Identity,” 170, 163.

  24. Waldron, “What Is Cosmopolitan?” 233.

  25. Waldron, “Arguing,” 310; “Indigeneity?” 55–82.

  26. Waldron, “Settlement,” 239. For a critique of Waldron’s and others’ modeling (cum “neutralizing”) culture as fluidity, see Nikolas Kompridis, “Normativizing Hybridity/Neutralizing Culture,” Political Theory 33 (June 2005): 318–43.

  27. Waldron, “What Is Cosmopolitan?” 227–28; and “Minorities Cultures and the Cosmopolitan Alternative,” University of Michigan Journal of Law Reform 25 (Spring/Summer 1992): 751–92. Kymlicka voices his criticism in Multicultural Citizenship (Oxford: Clarendon Press, 1995), 85.

  28. Waldron, “Redressing,” 138.

  29. Waldron, “Redressing,” 138; “Who Is My Neighbor?” 347, 348, 350. I do not accept that a purely impartial, in other words, Archimedean, reading is possible. The relevant axis here measures greater or lesser persuasiveness, as correlated to greater or lesser comprehensiveness.

  30. Waldron, “Legal Positivism,” 1554–55; “What Is Cosmopolitan?” 238; “Kant’s Theory of the State,” in Immanuel Kant, Toward Perpetual Peace and Other Writings on Politics, Peace, and History, ed. Pauline Kleingeld (New Haven, Yale University Press, 2006), 191.

  31. Ak. 8:21.

  32. MM, Ak. 6:312.

  33. Ak. 8:21, 20.

  34. PP, Ak. 8:364.

  35. MM, Ak. 6:306.

  36. Ibid., 217.

  37. Ibid., 236.

  38. Ibid., 265. See Sankar Muthu, “Justice and Foreigners: Kant’s Cosmopolitan Right,” Constellations 7 (March 2000): 23–45; Waligore, “Cosmopolitan Right,” 37–38.

  39. MM, Ak. 6:266.

  40. A recent study of Kant’s developmental assumptions is Thomas McCarthy, Race, Empire, and the Idea of Human Development (Cambridge: Cambridge University Press, 2009), Chapters 2, 5.

  41. MM, Ak. 6:348–49.

  42. PP, Ak. 8:385.

  43. Ibid., 359.

  44. Kleingeld, Kant and Cosmopolitanism, 56.

  45. PP, Ak. 8:367.

  46. Waligore, “Cosmopolitan Right,” overlooks the importance of this passage.

  47. PP, Ak. 8:365.

  48. Waldron, “Teaching Cosmopolitan Right,” 30; cf. “Indigeneity?”

  49. Waldron, “Settlement,” 259; cf. “How to Argue,” 313.

  50. MM, Ak. 6:230.

  51. Waldron, “Cultural Identity,” 163. Waldron cites (in a prior edition) Ludwig Wittgenstein, Philosophoische Untersuchungen/Philosophical Investigations, trans. G.E.M. Anscombe et al., rev. 4th edn. (London: Wiley-Blackwell, 2009), 94–95e, para. 242.

  52. PP, Ak. 8:358; MM, Ak. 6:353.

  53. PP, Ak. 8:357–58.

  54. Even in its negative formulation, “nonhostility” does not escape possibly incommensurable culturally rooted interpretations; but by minimizing relation, it attenuates incommensurability.

  55. PP, Ak. 8:358.

  56. Ibid., 358.

  57. Waldron, “Who is My Neighbor?”

  58. Waldron, “Cultural Identity,” 164.

  59. PP, Ak. 8:367.

  60. MM, Ak. 6:307.

  61. Waligore, “Cosmopolitan Right,” 49–52; Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009), 225–30.

  62. Ak. 7.330–31.

  63. Ripstein, Force and Freedom, 349, 341. Although I cannot elaborate on it here, this version of Kantian anarchy differs significantly from that sketched in Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 299–302, 307.

  64. MM, Ak. 6:266.

  65. Waldron, “Redressing,” 137.

  66. Waldron, “Settlement,” 239.

  67. Waldron, “Superseding,” 4 (emphases added).

  68. Ibid., 15–16. For two views on the supersession thesis, see Burke A. Hendrix, “Context, Equality, and Aboriginal Compensation Claims,” Dialogue 50 (December 2011): 669–88; Douglas Sanderson, “Against Supersession,” Canadian Journal of Law & Jurisprudence 24 (January 2011): 155–82. For an analysis of Waldron’s theory of property, see also Hendrix, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (University Park: Pennsylvania State University Press, 2008), Chapter 3.

  69. Aroha Harris, Hīkoi: Forty Years of Māori Protest (Wellington: Huia Publishers, 2004).

  70. Waldron, “Settlement,” 252–53, 262.

  71. Waldron, “Redressing,” 159, 137, 136, 138.

  72. Strictly speaking, the emphasis should fall on consequences. To reiterate: Waldron does not claim that unjust takings did not historically occur, only that persons’ lives so many generations later have moved on such that all have new relations to the objects of the acts of taking (plots of land). It seems, to me at least, that although Waldron nearly accuses indigenous claimants of fetishism (because they still remain focused on plots of land that have not been in their use or possession for some time), it is he who fetishizes possession (on behalf of current possessors). The thrust of many indigenous claims is present dispossession, not past possession (although the two are related). So, the question remains for many indigenous peoples how best to confront this continuous injustice if not by reparation, whether legal-material or political-institutional.

  73. See Roger Maaka and Augie Fleras, “Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa,” in Political Theory and the Rights of Indigenous Peoples, eds. Duncan Ivison, Paul Patton, and Will Sanders (Cambridge: Cambridge University Press, 2000), 98.

  74. Waldron, “Redressing,” 140.

  75. Waldron, “Kant’s Theory,” 194

  76. See especially Harris, Hīkoi; Ranginui J. Walker, “Māori People since 1950,” in The Oxford History of New Zealand, ed. Geoffrey W. Rice, 2nd edn. (Auckland: Oxford University Press, 1992), 498–519. See also, Richard S. Hill, “Maori and State Policy,” in The New Oxford History of New Zealand, ed. Giselle Byrnes (Victoria: Oxford University Press, 2009), 513–36; Mason Durie, Ngā tai matatū: Tides of Māori Endurance (Victoria: Oxford University Press, 2005), Chapter 7; Manuhuia Barcham, “(De)Constructing the Politics of Indigeneity,” in Political Theory and the Rights of Indigenous Peoples, ed. Ivison et al., 137–51.

  77. See Andrew Sharp, Justice and the Māori: The Philosophy and Practice of Māori Claims in New Zealand since the 1970s, 2nd edn. (Auckland: Oxford University Press, 1997), Chapter 13.

  78. Maaka and Fleras, “Engaging with Indigeneity,” 89, 96–98.

  79. MM §13, Ak. 6:262.

  80. Waldron, “Settlement,” 258–59.

  81. Waldron, “Arguing,” 313–14.

  82. Nicolas Peterson, “Aboriginal land rights in the Northern Territory of Australia,” in Politics and History in Band Societies, ed. Eleanor Leacock and Richard Lee (Cambridge: Cambridge University Press, 1982), 441.

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    Jimmy Casas Klausen

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The author wishes to thank Miranda Johnson for an invitation to present an earlier version of this essay at the Law and Indigeneity Workshop, University of Wisconsin, Madison, in April 2012. Audience members and fellow workshop presenters Sumudu Atapattu, Heinz Klug, Richard Monette, Stuart Kirsch, Larry Nesper, Hilary Soderland, and Jarrett Chapin offered helpful feedback. I am also grateful to the anonymous reviewers for their enthusiasm and to Inder Marwah, who urged me to pick up Ripstein’s book at the right moment in a separate conversation about Kant.

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Casas Klausen, J. Jeremy Waldron’s Partial Kant: Indigenous Proximity, Colonial Injustice, Cultural Particularism. Polity 46, 31–55 (2014). https://doi.org/10.1057/pol.2013.38

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