Supersession, non-ideal theory, and dominant distributive principles

ABSTRACT

This article argues, against Jeremy Waldron, that Indigenous rectification claims are not fundamentally Nozickean in character. Rather, they appear this way only because they take place against a background of socially robust ownership rights that are treated as consent-requiring, time-insensitive, and inequality-permitting. Indigenous peoples invoke these principles to defend their own holdings in ways that highlight how such pseudo-Nozickean practices deeply structure existing social life. Presuming that these broad practices are unlikely to change, egalitarians must evaluate Indigenous claims within the ambit of the second best. Egalitarians will often face uncomfortable decisions within this context, however, in deciding how to distribute unavoidable inequalities. The article argues that egalitarians should generally support Indigenous property or compensation claims in conditions as we know them and as they are likely to be. The article closes with a brief extension of these arguments to Indigenous claims to political authority.

KEYWORDS:

• Supersession
• Waldron
• Nozick
• property
• Indigenous peoples
• non-ideal theory

Acknowledgments

The author thanks the organizers of and participants at a 2018 workshop on supersession in Graz, Austria, along with the journal’s anonymous reviewers.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Waldron presents Nozick’s conception of entitlements as circumstance-insensitive (e.g. Alcantara, 2013, pp. 13-14), excepting Nozick’s Lockean proviso (Waldron, 1992b, p. 21). Nozick (1974, pp. 178-182) presents this weak proviso as affecting present ownership only in extreme hypotheticals. Alternative conceptions of historical entitlement theories (e.g. Otsuka, 2003) lead to less rigid rights. Whatever the philosophical merits of these alternatives, they are not the target of this article’s non-ideal examination.

2. Waldron (1992b) argues: ‘[S]ome reliance on Nozick’s approach is almost inevitable for any defender of historic reparations’ (p. 17).

3. For counterarguments, see, Sanderson (2011).

4. Under Lockean and other provisos (perhaps, in extremis, Nozick’s). Waldron (1992b, p. 25) argues that plausible historical entitlement theories must acknowledge the possibility of supersession.

5. Waldron (2004) describes the ‘Supersession Thesis’ generally as ‘the proposition that certain things that were unjust when they occurred may be overtaken by events in a way that means their injustice has been superseded’ (p. 240). Waldron (2004, p. 245n13) interprets (1) as falling outside this definition, while being unclear about the status of (2). Given structural similarities, I group all three together here.

6. Waldron (1992b) cites no examples of Indigenous claimants making arguments in Nozickean language.

7. Most of Waldron (1992a) is identical to Waldron (1992b), with expanded discussions in a few places.

8. Others involve rhetoric and framing (e.g. Nichols, 2013).

9. Lyons (1977, pp. 268-271) acknowledged that a focus on Nozickean property theory might occlude the legal nature of Indigenous land claims.

10. The rare form of transfer known as adverse possession arguably represents consent through property abandonment. Engaging its complexities is not necessary for the present argument.

11. There may be powerful reasons for such a rule (Gaus, 2016, pp. 187-198).

12. Waldron (2003) asks: ‘[W]hat are the aficionados of indigeneity doing appropriating principles … from John Locke and Hugo Grotius?’ (p. 81) The answer seems obvious: They are responding to the surrounding discursive environment.

13. Cf., Waldron (2006, 2013) on the supersession of treaties and sovereignty.

Additional information

Notes on contributors

Burke A. Hendrix

Burke A. Hendrix is Professor of Political Science at the University of Oregon, and the author of Strategies of justice: Aboriginal peoples, persistent injustice, and the ethics of political action (Oxford University Press, 2019).