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Critical Review of International Social and Political Philosophy

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Political theorists as dangerous social actors

Burke A. Hendrix
a a

Department of Government, Franklin & Marshall College, Lancaster, PA, USA Version of record first published: 11 Nov 2010.

To cite this article: Burke A. Hendrix (2012): Political theorists as dangerous social actors, Critical Review of International Social and Political Philosophy, 15:1, 41-61 To link to this article: http://dx.doi.org/10.1080/09692290.2010.517980

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Critical Review of International Social and Political Philosophy Vol. 15, No. 1, January 2012, 4161

Political theorists as dangerous social actors

Burke A. Hendrix*
Department of Government, Franklin & Marshall College, Lancaster, PA, USA
Critical 10.1080/09692290.2010.517980 FCRI_A_517980.sgm 1369-8230 Original Taylor 2010 0 00 burke.hendrix@fandm.edu BurkeHendrix 000002010 and & Review Article Francis (print)/1743-8772 Francis of International (online) Social and Political Philosophy

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What is the appropriate degree of abstraction from existing social facts when engaging in normative political theory? Through a focus on American Indian and other indigenous claims over historically expropriated lands, this essay argues that highly abstracted forms of normative analysis can often misunderstand the core moral problems at stake in real cases, and that they can pose moral dangers when they do so. As argued, the hard moral issues involved in indigenous land claims within countries such as Canada and the United States often have far more to do with questions about competing uses for public lands than with abstract property theory as such. The essay argues that normative theorists will often do more social good, and pose fewer dangers, when they pay close attention to the real moral challenges that social actors face on the ground than when they become captured by abstract questions with ambiguous practical importance. Keywords: Ideal theory; power; discourse; social context; indigenous peoples; land rights

Political theory and social danger In this essay, I will argue that certain ways of engaging in normative analysis are more useful and appropriate than others given the circumstances of the political world in which we live. Indeed, I will argue that some kinds of normative analysis can become actively dangerous in conditions of unequal social power, where arguments are subject to cooptation and exploitation by dominant social forces. Whether we should abstain from these kinds of normative theorizing entirely is a more contentious question; at a minimum, I will argue that we should deploy them with a full awareness of the dangers they hold. To give this essay some definitive content, I will focus particularly on ways in which we might analyze American Indian and other indigenous claims for the return of historical lands or to compensation for the loss of those lands. This focus is in part personalistic, dictated by previous intellectual trajectories (e.g. Hendrix 2005a, 2005b, 2007, 2008). But as I will argue, the choices we make about investigating particular cases are themselves
*Email: burke.hendrix@fandm.edu
ISSN 1369-8230 print/ISSN 1743-8772 online 2012 Taylor & Francis http://dx.doi.org/10.1080/09692290.2010.517980 http://www.tandfonline.com

2 42 B.A. Hendrix

extremely important, since these choices help to fix our understanding of what is at stake, and since differing degrees of attention to social context can lead to very different kinds of normative judgments. By the end of the essay, I will argue that we will usually fare best when we pay close attention to the social challenges faced by specific political actors in contextually rich ways. This is especially so, I will argue, where the claims of relatively subordinate social groups are involved: a failure to carefully investigate the factual details of existing social circumstances can often mislead us as to where injustices lie, and so defeat the purposes for which our inquiries began. Abstraction, power, and coherence To illustrate my argument, I will approach the analysis of American Indian claims over historical lands from two different levels of analytical abstraction, beginning with an approach that imagines a social world much different than that we now know, and then moving downward toward a more socially contextualized approach. As I will try to show, the moral questions before us change considerably as we shift between levels, and the purposes for which our moral conclusions might be useful likewise change. At higher levels of abstraction from existing realities, we are usually asking questions that are intended to be relevant for anyone. At lower levels, the questions will be structured to have less general interest. But the theoretical tradeoffs here are not so direct as they seem despite the hope that they will be theoretically interesting to everyone, more abstract analyses are in fact likely to draw much more specific and limited audiences, and can easily be subject to counterproductive forms of cooptation and exploitation. I will be particularly concerned with the dangers of what might be called transformative conceptions of normative evaluation those that expect normative analysis to have strongly reformative effects on the world as it now exists, across a wide sweep of our political lives. Such methods of normative analysis, I will argue, can often become counterproductive and undermine the very goals sought by those who adopt them. There are two ways in which normative visions that abstract too heavily from existing political realities can go astray, however, and it seems essential to keep them distinct. The first is relatively familiar, and for that reason I will discuss it only briefly; the second is less familiar, and it will therefore receive the bulk of my attention. The first category of danger in excessive abstraction from the details of the existing political world is a relatively familiar one: that which occurs when we imagine away too many of the inherent limitations that exist on humans as moral agents under any conditions. There are limits to what moral suasion and other mechanisms (e.g. enculturation) can achieve even in the best of circumstances. If we were to outline the most demanding set of moral standards for human behavior, for example, we would probably say that no one should ever knowingly use coercion against another person, even to the

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level of holding them against their will for a short period of time. But would we therefore leap to the broader conclusion that social institutions such as police and jails are illegitimate, on the ground that their entire purpose is to exercise coercion? Probably not, because we know that many people will in fact use coercion against one another whatever we might wish, and will want to plan for these moral failures when they occur. Simply hoping that moral exhortation alone can provide a basis for peace and stability in human communities has seemed implausible for a long time; most of us recognize we also need theories of appropriate criminal punishment and of corresponding legal organization. To be useful, any social theory will have to be consistent with the limited kinds of beings that we as humans are. Theories that imagine away too many limitations are likely to prove extremely poor guides for decision-making, and can easily lead persons to pursue social projects that fail spectacularly and agonizingly.1 Even most exercises of what is commonly referred to as ideal theory take these limitations into account in foundational ways. Consider the theories of John Rawls, whose work gave rise to the widespread use of the terminology itself. Both in his views on social justice and on political liberalism, Rawls strove to ensure that his proposed social orders would be consistent with unavoidable human limits. His difference principle, for example, assumes that a prosperous human society will necessarily contain a division of labor (because not everyone can be an expert in all fields of endeavor), and that it will need material and other inducements to prompt persons to fill the necessary roles within that division (e.g. Rawls 1971, pp. 273277). More crudely, Rawls hoped to exploit the capacity of selfinterested market behaviors to generate wealth as a way of assisting the worst-off. Whether or not one accepts the precise vision of limited altruism that Rawls invokes (e.g. Cohen 2008), his general intention of taking human failings into account seems reasonable it does not imagine that we or our societies can become perfect, only that real improvements are achievable. Rawlss later account of political liberalism even more determinedly accepts certain kinds of human limitations as unavoidable in particular, he assumes that each of us will always face burdens of judgment about many kinds of moral and religious questions, so that no amount of argumentation or exhortation will ever be sufficient to resolve them (Rawls 1996, pp. 5458). What we must do instead is to admit the mutuality of our human limits (p. 121), and try to structure our society accordingly. Thus the first danger of excessive normative abstraction comes from setting aside the realities of human failings as they would occur in even the most favorable circumstances.2 The second and less familiar kind of danger shares many similarities, but is more contextually based and sensitive to circumstances. For that reason, many theorists may want to imagine that it is not a real danger; as I will try to demonstrate, however, they would be mistaken to take this position. The danger I have in mind is that which occurs

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when we move too far beyond the character of the political world as it exists in our own time and place, when we begin positing social orders that are sharply at odds with the existing social world. The relevant facts to be imagined away are thus not inherent human limits, but facts of the human-created world in our specific time and place. How might this kind of danger occur? Among many normative theorists, there is an unspoken tendency to treat unjust societies as if they were held in place only by a kind of absence of reasoning or thoughtfulness if people were willing to think a little bit, the assumption seems to go, injustices would be readily exposed and dissolved. But this clearly misdescribes of how actual societies work. Social orders are not held in place by an absence of reasoning, but by thick networks of discourse, often overlaying and reinforcing one another in complex and shifting ways.3 These frameworks channel thought in particular directions, and make some forms of social change readily imaginable and others not at all. We all learn to reason within these kinds of discourses, taking on their limits whether we like it or not. We can fight against them, and alter them here and there in small ways, but they can never become fully accessible to us at a conscious level, and we can never fully escape the limits they put on us. If we believe that we live in a substantively unjust society, then, we must also believe that our own intellectual frameworks are untrustworthy in key ways. Since all of us are thinking all of the time as we try to navigate our social world, any set of social discourses that remains stable must have at least the appearance of coherence and acceptability, probably even to many of those who are most disadvantaged through them. And if intellectual frameworks are to appear coherent and defensible, it seems likely that they must actually be coherent and defensible across a substantial range of intellectual space. If social discourses as a whole are nonetheless incoherent and unjust, there must necessarily be slippage points where packages of contradictory ideas can slide past one another without emerging into logical exposure. Such slippage points must involve unstated and often autonomic switches between justificatory grounds or empirical presuppositions, something made possible by the very complexity and indeterminacy of discourses themselves and by the very familiarity of these slippages (Jakobson 1998, pp. 522524). Given this complexity, a demonstration of incoherence is rarely sufficient to call into question broader patterns of discourse and disjunction such attempts are easily overwhelmed by the larger background of expectations, and by the ease of switching to some other ground of evaluation when the challenged one fails. Our overall pattern of expectations our beliefs about what kinds of questions should be asked of a given circumstance, of what factual presumptions should be invoked, of what sort of balancing of competing principles we should accept remains in place. Any pattern of discourse that remains stable over the long term will thus have powerful ways of maintaining itself, ways of which even the most conscientious of us can be scarcely aware.

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While it is traditional to hope that we can reason our way from under these limits, there is no reason to believe this to be true as Rawls has already made clear, we are cognitively limited creatures who always struggle to reach clarity about a great many issues. This does not mean, of course, that we cannot construct appealing idealizations about a just society we may be able to reach some fairly attractive conceptions that will seem defensible to a broad range of people, particularly when we stay at a high level of generality and imprecision. But once we attempt to use our idealized theory as a guide to our actual political practice, the nature of discourse suggests that is extremely likely to go astray, and to run afoul of the hidden slippage points that give discourse its apparent stability, misdirecting our ambitions into something we would not wish to produce. Our intellectual lives are filled with myriad complex and ambiguous judgments, rich sets of details and assumptions, profound and unstated patterns of thought, and these make us far less reliable moral actors than we might wish to believe. In these circumstances, I believe, it is staggeringly easy for we ourselves to fall into dangerous judgments about particular moral cases within the existing political world, and for any insufficiently contextualized arguments that we make to be shifted and deployed in politically dangerous directions. When we engage in analyses that abstract strongly from the political world as it is, we offer up an array of principles with underspecified connections to particular political and moral decisions. At these indeterminate points, our arguments are likely to be misdirected by existing structures of social power, either knowingly and opportunistically by powerful parties, or unconsciously and sincerely by a much wider range of persons (including ourselves).4 The further our analysis is from the details of the political world as it actually is, I believe, the more opportunities there are for slippage points to activate and lead our arguments astray; the closer we are to the details, the fewer these slippage points, and the greater the difficulties of activating them. This is obviously a large claim, and it may be hard to grasp in the abstract, or to admit to oneself. Only something more specific can begin to illustrate what I have in mind, so let us now turn to the investigation of indigenous land claims. Social transformation and social danger Let us consider one kind of analysis of American Indian and other indigenous claims over historically expropriated lands. This argument proceeds at a broadly abstracted level, substantially within the Rawlsian conception of ideal theory: it is concerned with the standards that ought to govern the morally best society, subject only to the unavoidable failings of human nature under any conditions. Working at this level, Jeremy Waldron has analyzed indigenous claims and found them wanting. I believe Waldrons analysis illustrates the kinds of dangers with which I am concerned.

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Within countries such as the United States, Canada, Australia, and New Zealand, indigenous peoples have limited legal paths for seeking the return of historically stolen lands, or for receiving compensation for their loss. Usually the lands involved were expropriated more than a century ago, and sometimes much longer. According to Waldron (1992a), these legal paths are inappropriate, because historical ownership does not have the continuing moral relevance they presume.5 The grounds for this conclusion are primarily of two kinds, located within foundational theories of property and deriving from basic presumptions about the kinds of creatures we as humans are. First, Waldron argues, we as humans need rights to possess material goods if we are to live relatively full and desirable lives (pp. 20, 26); second, we tend to form emotional and other attachments to those parts of the material world we interact with most strongly in our everyday activities (pp. 1819). In combination, he thinks, these two basic facts about human beings lead to the conclusion that historically grounded indigenous claims are not morally justified. For Waldron, the basic importance of guaranteeing people a chance to control property, and ideally a roughly equal chance, combines with the linkages between individuals and specific possessions to provide a strong argument against returning historically stolen lands to current indigenous claimants. Compensation based on historical ownership can have obvious inegalitarian consequences, especially when circumstances have changed greatly since the original expropriation (e.g. with increases in population, p. 25). Moreover, Waldron argues, ejecting living persons from their homes in the present would violate the basic connections that justify property rights in the first place. If control of particular properties is necessary to allow people to lead satisfactory and relatively autonomous lives, then historical property rights should be dissolved where returning lands would frustrate these basic purposes:
Historical entitlement theories are most impressive when moral entitlement is conjoined with present possession. Then it seems plausible to suggest that continued possession of the object might be indispensable to the possessors autonomy. But when the conjunction is disrupted, particularly when, as in the cases we are considering, it is disrupted for a considerable period of time, the claim looks much shakier. (p. 19)

Framed in this way, the argument against historically grounded American Indian and other indigenous claims seems clear enough: such claims focus on history in ways that conflict with basic considerations of distributive justice, and threaten to displace living people from current properties in illegitimate ways. For the purposes of this essay, I will accept without challenge that Waldrons conclusion follows correctly from his premises. Yet, even if we accept this, we need to ask what the social purpose of this normative

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judgment might be, and for whom it is intended to be useful. I think Waldrons sincere reply would be that its social purpose is simply to analyze an important set of social policies, and that its intended audience should ideally be everyone, or at least all democratic citizens within the relevant countries.6 But deciding to ask one set of moral questions rather than another is an important choice, and can have unintended effects, both on our evaluations and on the social outcomes of our work. If we read Waldrons analysis as a social act within a society deeply structured by power relations, it begins to look rather different. Notice that in principle Waldrons argument about the importance of relatively equal chances to control property calls into question not only historically grounded indigenous claims, but some of the most central features of existing economic orders as well. If one is really concerned about the counter-egalitarian status of inheritance, for example, then indigenous claims are part of a much, much larger social matrix, and not a particularly interesting one at that if indigenous peoples happened to receive back some of their historical lands without having (say) earned them through labor, this would seem no worse morally than the pervasive practices of inheritance that shape society everywhere else. Indeed, Waldron himself recognizes this (Waldron 1992a, p. 27, 1992b, p. 167, cf. Waldron 1990, 1993). But this raises an obvious question: why single out indigenous claims for attack, if they are morally no worse off than the principles dominant elsewhere, particularly where an inherently distributional good like property is involved (cf. Macklem 2001, p. 85)? In these circumstances, specifically attacking indigenous claims does not look a great deal like the pursuit of justice it looks like more like picking out the vulnerable for insisting that dominant principles be fairly applied. Does Waldron really believe that his arguments and others like them can be sufficiently powerful to overturn these broader social patterns? If so, this judgment seems implausible people have been advocating greater economic equality for a very long time, to limited avail. If the history of large-scale societies is any indication, it may be that such arguments simply cannot succeed potentially, at least, there may be no actual way produce a human society that instantiates equality in a serious and long-lasting way. Moreover, there are deep reasons to doubt that we even have a plausible idea of what such a society might look like most proposals (e.g. those of Rawls) contain profound degrees of speculation and indeterminacy, and this is a staggeringly uncertain ground on which to base specific policy judgments. Unfortunately, the tendency to see our aspirations as far more directly action-guiding than they can be is a venerable and recurrent temptation (cf. Hellenbrand 1985, pp. 537549) at its core, it may even constitute our most severe cognitive limitation. Even if one believes that inheritance and other undeserved inequalities7 could be overturned if circumstances were just right, one still needs to

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consider what the relative chances of this outcome are. If we can imagine circumstances through which this might be possible, but if these conditions themselves are unlikely to come about (e.g. if they require a magisterial orator or a series of them), then we need to be wary of deciding to base political judgments on this bare possibility, particularly where the claims of those who have already been historically mistreated are involved. If there are slippage points built into our inherited intellectual frameworks, they are surely to be found in regard to American Indians and other indigenous populations the history of settler colonialism is testament to the capacity of extremely intelligent humans to justify violence and expropriation. Given these legacies and the relative lack of contemporary social power by indigenous populations, it seems inevitable that their inheritance-based claims will be subject to dissolution long before inegalitarian practices within the dominant non-indigenous population (cf. Bruyneel 2007, ch. 6). The location of the discursive slippage point most readily activated by Waldrons argument as a social act becomes clearer when its two strands are considered together.8 Remember that Waldron argues that individuals tend to form attachments to the parts of the material world that they use or otherwise interact with on a daily basis, so that it would be unfair to disrupt established relationships between particular persons (or populations) and parts of the material world. Framed this way, his argument does not appear to call into question the inherited inequalities among non-indigenous populations I have just outlined: these populations happen to still be in control of the goods they hold through no desert of their own. The combination of the principle of attachment to material objects with an aspiration toward egalitarianism seems to show that indigenous claims are doubly problematic they apparently fail both on counts of equality and attachment, since indigenous peoples no longer control the lands at issue. Given this structure, it is easy to forget entirely about the ubiquity of the inheritance-based advantages held by nonindigenous populations they simply fade into the social woodwork, as if they were entirely unremarkable. Once this slippage point is noticed and exposed, another unfortunately hovers in the broader social background of the argument, waiting to be invoked within our political and intellectual practice as needed what one might call the venerable old question slippage point. Given the two principles Waldron has invoked, there is room for infinite equivocation where nonindigenous holdings are concerned how much egalitarianism do we need, how much attachment? and for unstated invocation of all of the long debates about these matters that political theorists are familiar with. Indigenous claims seem to be illegitimate, definitively and certainly. But what about other property holdings, and the real redistribution according to egalitarian principles necessary for Waldrons response to indigenous claims to be plausible? Anything here can be only vaguely hopeful, given the lack of visible paths for creating real change eventually we ought to do something to sort

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this out, one is likely to say, however it might actually come about. In the meantime, social life goes on as before. As structured, Waldrons argument is thus dangerous to indigenous property claim in a way that it is not to other structures of ownership. More broadly, core elements of this argument can be extracted and deployed for wider counter-egalitarian purposes, given the invocation of the claim that persons form attachments to specific material goods. Such an argument opens the door to adaptive preferences toward material goods, and therefore seems tailor-made for exploitation and cooptation: it gives an especially appealing defense for massive levels of economic inequality. If people tend to live better lives when they control their property consistently, it is only a short step to the claim that governments should not be allowed to interfere with property at all. After all, indigenous claims have been rejected because they potentially disrupt existing arrangements shouldnt other disruptions also be rejected? And if existing holdings should be left alone, it seems easy for we beneficiaries to safely lament the past loss of land by indigenous nations, along with myriad other injustices it is too bad that these injustices happened, of course, and that these populations generally remain poor, but whats done is done. It is time to move on and to leave existing property holdings precisely as they are. Perhaps the argument is not logically sound. But it is a familiar one, and it is reinforced by the centrality attached to existing holdings here.9 Unfortunately, established discourses have a way of moving along these channels they take us where we expect to go quite easily, whether we intend it or not. Thus there are profound dangers that Waldrons arguments against historically grounded indigenous claims will prove socially effective against such claims and nowhere else, whatever their theoretical implications if they are taken in their full consistency. Clearly this is not Waldrons intention he really does hope that eventually we can achieve real egalitarianism, if we just lobby for it hard enough but it is an obvious danger of separating out the claims of vulnerable social actors for philosophical attack. More broadly, it is the unavoidable danger of making moral arguments at a high level of social abstraction that are in theory appealing to anyone but that are in practice likely to attract specific persons on a far more limited basis. Where moral arguments are concerned, we should always ask: who would be interested in this argument, and why? Where indigenous land claims are concerned, social attention is likely to be drawn not by abstract questions of property theory, but by those with real stakes in the political phenomenon itself those who really care are likely to be on one side or the other already. In these circumstances in any social circumstances existing constellations of social power seem unavoidably to drive debates along particular channels, and to bring into play all those slippage points that exist in a rich field of them. Waldrons argument is likely to be followed to its full logical implications only by other political theorists (if by anyone), who are not likely to do much of anything

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in one direction or the other; if it has any resonance at all in the larger society, it seems predictable that it will have it where it can do substantial damage. Does this mean that Waldron and we ourselves should never engage in abstracted, transformative styles of normative theorizing? This depends on whether there is an alternative. I believe there is indeed another option, one that does not require us to be disingenuous about what we believe or to simply ratify the existing social world. This more preferable strategy, I believe, is to begin with a different kind of question in the first place, so that we focus our attention more carefully on specific details of social context and thereby reach different kinds of conclusions with more specific purposes and more determinate audiences. Political context and political strategy The alternative to starting from large-scale questions about the standards for an ideal world is to begin with a more focused question that is admittedly less than universal in interest, and to shift our attention to the kinds of moral and political possibilities available to specific political actors in the world as it is currently structured. Framed in this way, we must necessarily take as fixed many features of the social world that look like targets for revision on more abstracted methods of moral analysis. On this model, we do not assume that change will be unbridled and complete, subject only to our imagination for the best moral world we assume instead that it will be limited and mediated social change, always channeled along some directions rather than others, and always pursued by some specific social actors through difficult political work. On this alternative approach, we would begin by considering the field of political choices available to a particular set of political actors given existing social structures. If we take current constellations of power seriously in this way, American Indian and other indigenous claims begin to look far more complex in their moral setting.10 A much larger roster of factual details must enter our theoretical reflections. Among the relevant social facts where historically based indigenous claims to land or compensation are concerned are at least the following: (1) indigenous groups are generally far poorer than surrounding populations; (2) existing states operate only limited programs of assistance to poor groups; (3) existing legal systems link indigenous selfgovernment to historical land ownership and methods of property transfer; (4) existing states are extremely hesitant to extend specialized protections to minority cultural groups who cannot demonstrate a historically separate political status; (5) existing states virtually never return privately held lands to indigenous groups who win land claims, but provide public lands or monetary compensation instead; and (6) the potential of public lands being transferred to indigenous groups is often threatening to resource industries, which generally have substantial political influence.

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This is not an exhaustive list, nor will all the factors listed here apply in the same way to specific indigenous claims. But the list nonetheless gives us a fuller sense of the social facts that exist to be navigated. From this perspective, we are unlikely to see indigenous legal claims over land as arguments for a free-standing, reified Ownership, but rather as particular political actions undertaken within an existing social context, potentially for reasons very different from those that claims processes seem to embody.11 Given the linkage between demonstrations of historical ownership and contemporary rights to self-government, for example, the pursuit of claims can represent a strategy for expanding the territory over which indigenous governments exercise political authority. Such claims can also be pursued for other reasons, with for example claims over public land used to exert political leverage through resource industries to governments, in hopes of receiving increased financial assistance to improve everyday standards of living. They can also be used to restructure public memory, in hopes of pursuing less dangerous futures (e.g. Hendrix 2005b), and so on. Such examples would be easy to proliferate. For the purposes of this essay, it seems best to focus on the details of one of these less intuitive strategic goals, to illustrate how normative analysis begins to change with this approach. Thus I will briefly examine attempts by indigenous groups to use historical claims as leverage for expanding the area over which they exercise self-government. I will assume for the sake of argument that Waldron is correct in rejecting the moral force of property claims themselves, and will also assume that these groups do not have especially strong emotional or cultural connections to the relevant lands (cf. Waldron 1992a, p. 19). For purposes of illustration, I will thus simply assume that these groups are trying to expand the area over which they exercise political control, and that essentially any area will do, so long as it is tolerably close (in geographic terms) to areas they already control, and not uniquely problematic for unrelated reasons (e.g. it is not a toxic waste site). Those who do not already know the relevant legal and political environments, or those who feel drawn back by ideal theory, will be tempted to ask a simple question in this case: why would groups pursue historical claims over land in pursuit of these goals, rather than simply buying it up through the free market? The short answer is that this is not a real social option, even if it is available in imagination. In practice, the United States, Canada, and other countries do not allow indigenous groups to extend authority over lands acquired in this way (e.g. City of Sherrill v. Oneida Indian Nation of New York 2005): while historically controlled lands often come packaged with political authority if they are returned, lands purchased on the market are not so packaged, and therefore require special political dispensations to bring them under self-government arrangements. These occasionally are granted, but not often, and usually only when these purchased lands become treated as replacements for historical lands that included self-government rights.

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Simply because an indigenous population is expanding is rarely accepted as grounds for allowing its self-governing territory to expand; usually the group must show that they have claims to compensation for historical losses before anything like this becomes politically viable. Is this a coherent legal regime, requiring as it does that groups pose future-oriented claims for increased territory as backward-looking historical ones? Probably not, although any workable legal system will doubtless include many features that look problematic from the perspective of idealworld social theory. But it would not be terribly fruitful to spend a great deal of time critiquing the peculiarities of this body of law and speculating about radically different alternatives there is simply no evidence that countries like the United States and Canada have any interests in revising these elements of their legal systems in substantial ways. Relatively limited alterations are possible, and more serious ones might conceivably become live political issues in Canada at some point (as they did briefly in the late 1980s and early 1990s as a spill-over effect from Quebec separatism), but revisions sufficient to change a fundamental evaluation of the strategic political context show no signs of emerging any time soon. So if indigenous groups want to expand the area over which they exercise self-government either because their population is expanding or because they have never had enough area in the first place they will probably have to press historically based legal claims to do so. (The chances that they will actually receive anything from this process are quite low, of course, even if they are considerably higher than with the alternatives.12) Assuming that indigenous groups have rightly been allowed particularized cultural protections in the first place,13 it seems natural that they should be able to expand this area in at least some circumstances. Yet, does this raise questions about the moral permissibility of returning such lands, given the concerns that Waldron has already outlined? Not really in practical terms, Waldrons concerns about the displacement of current property holders are largely imagined ones: unsurprisingly, states have little political will to forcibly displace current residents to return lands to indigenous peoples, and indigenous peoples very rarely ask for such displacement anyway.14 So we should be wary of becoming captivated by this issue of abstract property theory, since it can easily obscure the real moral stakes involved on the ground.15 And there are real stakes here, which may vary by specific cases and circumstances. In practice, the question is generally whether public lands should be transferred to a claimant group. (This is especially so in Canada, with its vast wealth of public holdings.) Here our moral evaluation may hinge substantially on the kinds of public lands involved, in ways that might never occur to us in less contextualized kinds of analysis. Many public lands are used as sites of resource extraction by private industries, for example, and these sorts of lands raise questions that may look at first like those posed by the transfer of private property, but which are in fact rather different. Since

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these kinds of extractive industries know that they do not own the relevant lands, and since they are usually large multinational corporations rather than individuals living their daily lives in a particular place, the moral stakes involve economic alterations that may follow from transferring lands to indigenous ownership, rather than disruptions of individual life-plans as such. Two kinds of potential losses come readily to mind, one if the indigenous group chooses (and is permitted) to stop the extraction, and another if the group chooses to continue it on the condition that it receives fees formerly paid to the larger government. In the first instance, stopping the extraction may slow down economic growth and put some workers out of jobs (although it is also likely to slow down ecological damage). In the second instance, the government that previously held the lands may lose whatever funds it was receiving from them, which may force it to raise taxes throughout its entire territory, or to trim some services, likely to those who are most in need. Both may be serious concerns in some cases, and it is not obvious how the gains of expanded self-government should be weighed against them without even more detailed examination. The expected costs here provide one reason for states to try to defuse indigenous claims through other kinds of mechanisms, and therefore explain why such clams can be powerful tools for pursuing such a multiplicity of political goals another concern that also needs to be weighed in any evaluation. Once we begin this kind of analysis, we are likely to recognize many instances of real moral uncertainty, where any outcome may entail giving up something of value. (In other cases the moral conclusion will be far clearer.) This is not something that socially abstracted kinds of political theory naturally leads us to admit, of course with few facts to anchor them, more abstract approaches will often conjure up imagined social changes that dissolve the tensions and competitions completely. But political life is inherently complicated and ambiguous, and moral theorizing will probably be more valuable when it faces this squarely. Improving the moral character of our social lives is usually difficult and can be morally dangerous work presumably our normative assessments should reflect this. Other kinds of public lands may be used in different ways, and therefore create further kinds of uncertain choices, and the need for further detailed investigation. Some public lands are used as recreational areas, for example, and can therefore serve multiple social roles. In some cases, they can provide access to natural areas for people too impoverished to own land themselves, and so serve as a kind of subsidy to the well-being of the poor. Saying that we ought to do away with poverty is not much help in these circumstances, since this is unlikely to happen we will have to admit the potential for real moral losses instead. Recreational lands can also play an integrative public role in bringing together people from many social classes, and this is something to be valued as well. Other kinds of lands are set aside for wildlife preservation or as ecological reserves, and these pose more complex kinds of questions, because their value hinges on facts about the severity of impending

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ecological crises and the possible capacity of these lands in slowing or halting them. This latter judgment may depend a great deal on what policies are being pursued elsewhere. There are thus real moral issues here that need to be worked through in this kind of normative analysis, even if they are often not the ones we initially imagined a focus on the political terrain as navigated by specific agents, indigenous or otherwise, does not lead to the conclusion that all political outcomes are equally acceptable, nor does it suggest that hard moral questions can simply be avoided. But it does bring us closer to the kinds of decisions that real political actors face on a daily basis, and shows us where we will need further information if we are to evaluate well. What matters is what existing social structures allow or foreclose for those who must live within them, and this is not always readily obvious in dominant categories of moral discourse themselves indeed, it is often systematically occluded by them. Until we understand the conditions faced by particular social locations, it is impossible to recognize how we respond as moral actors using the limited tools available to us. These responses are likely to be piecemeal, contextual, and strategy-sensitive responses that reflect our limited capacities to produce outcomes in tension with overarching structures of power and discourse. But we have no way to avoid this in any case despite occasional dreams, normative theorists are not masters of the world and will never be made so. By pulling us into the complexity of social context, this approach abstains from sweeping moral claims that are readily extracted by existing patterns of discourse. The dangers of cooptation and exploitation cannot be entirely eliminated, of course: even deeply contextualized arguments can be redirected with sufficient creativity. But they are nonetheless less easy to exploit, because they come tied to factual details that make necessarily complicate any false simplicity. Locating moral arguments within determinate social locations also limits the number of available intellectual slippage points within our own thinking, because the relationship between particular moral evaluations and particular social outcomes becomes clearer and more immediate. If we focus on detail-rich examinations of particular political circumstances, there is much more limited room for such slippages to be activated we will often know what we are talking about with some specificity, and will often be called upon to think carefully through the balancing of different kinds of human goods, rather than to deal in grand principles that ultimately commit us to far less determinate political conclusions than we wish to imagine. Ultimately, the goal of normative theorizing is to help ourselves and those who read our work to better navigate the social world.16 If we are unavoidably caught within webs of power-laden discourse, we will often become complicit in injustice despite ourselves: because we do not recognize the slippage points within established patterns of discourse, we will

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often choose wrongly despite our efforts, and we will often reinforce injustices in our attempted discursive interventions. If we train ourselves and help others to look specifically at existing structures of power before making moral judgments, however, both we and they will have better chances to learn to navigate these structures effectively. Most prospective readers of our academic work will not be directly interested in areas of normative analysis that seem far from their own concerns, of course, and that means our work will be less widely read and argued about it will draw most attention within the specific area of our focus, whether it be indigenous land claims or something else. But I see no reason to lament this as normative theorists, our goal should be to contribute to a better world rather than to pursue mere intellectual curiosity. Since my primary goal in this essay is illustration, I have not tried to reach a firm ruling on whether political strategies intended to expand indigenous self-governing territories are legitimate in any particular kind of case, although this is certainly something on which I have considered judgments (Hendrix 2005a, 2008). Nor have I sought to evaluate the range of other goals that might be pursued through similar legal mechanisms, or evaluated how the tradeoffs between different strategies should be managed. The argument here thus continues to be abstracted to some degree, and any full conclusion would require careful attention to this wider range of associated details. Some abstraction from this full range is doubtless unavoidable, and there will always be legitimate questions about where to draw the boundaries. But the appropriate degree of social contextualization will often be far more extensive than many political theories prefer, since it must bring us down nearer to ground level, where the real complexities of improving our social life are visible and impossible to imagine away. Situating ourselves as moral actors If forms of normative analysis that abstract too much from existing social realities are dangerous in the ways I am suggesting, and if we have an alternative available, why do so many theorists continue to engage in this kind of abstraction? While there are principled justifications that might be offered, we should consider first the less noble reasons that may exist: we should look at our own position within structures of power, and consider ourselves as social actors subject to the same structural forces and human limits as everyone else. Academic philosophers have material inducements to draft highlevel, impressive theories that seem to solve multiple social problems at once, since this often grants both tenure and acclaim to those who create them, and can create a kind of intellectual immortality to those whose work seems sufficiently universal and timeless. Anyone who believes that they live within a substantially unjust society has obvious reasons to worry about these material inducements surely we should be concerned about a system that seeks to

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locate morally inquisitive persons within an institutional field which rewards them for writing rather than acting. Indeed, insofar as abstract theories are subject to exploitation (when they manage to escape cooptation in their very beginnings), it is easy to see why educational systems within a power-laden society might want to teach skills of argumentation to its young members facility in familiar arguments and standard counter-arguments provides an obvious tool set for defusing potential challenges where they arise, by blunting and blurring the objections of social challengers under a storm of dialogical half-steps, ground-shifting, and scholastic citation of hallowed texts. Where intellectual slippage-points exist, a thorough university education may represent one of the best mechanisms for replicating them over and over again. Yet, one need not believe that academic incentive-structures are intended to distract us from the actual pursuit of social revision, or that they are essential in reproducing existing structures of power, to believe that our own all-too-human interests in pursuing theoretical beauty and intellectual puzzlesolving will often fail to translate into useful normative analysis in the world as we find it. Many of us enter the field of moral theorizing as much because we are interested in reasoning our way through fascinating questions as because we hope to make the world more humane, and it is easy to forget the latter as a practical goal in our day-to-day academic lives. Socially contextualized moral analysis is rarely glamorous or exciting, and rarely offers hope of ringing conclusions or imagined resolutions of multiple problems all at once usually it entails hard and uncertain judgment instead, always made with the awareness that we may be getting matters wrong. Insofar as we follow our curiosity in puzzle-solving, and transfer to our students a similar kind of passion and excitement for such work, we may distract both ourselves and them from the hard work necessary to bring about actual social change. We may thus become dangerous social actors despite ourselves either we will help to create students who, guided by unrealizable visions of social transformation, have little or even counterproductive effects on the world, or we will directly provide intellectual tools to be extracted, shifted, and coopted by existing regimes of power. In either case, we fail to achieve the sharp and critical promises that abstracted modes of moral analysis seem to offer to those who adopt them. The inevitable rejoinder will doubtless be that socially ideal theory is an honorable and necessary kind of endeavor, such fears notwithstanding. One kind of defense might draw parallels to basic research in the sciences, where the long-term social payoffs of particular kinds of inquiries are often greatly delayed, and inherently unpredictable (cf. Mill 1982, ch. 2). If normative political theory is really like that, we might be creating the conditions for a more just society over the long term whether we really intend this or not, so long as we pursue our inquiries assiduously and with technical precision. But do the parallels really hold up? This seems unlikely. The social world, unlike

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the physical world, is a responsive target, and does not remain immobile while we search for each slightly more refined vision of its ideal form. Most of the improvements in human life that have taken place over the last (say) two centuries seem to have been much more the result of political and social actors trying to create specific changes through hard social labor rather than deliverances from our own field, and there is no obvious reason to expect this to change in the foreseeable future. Often in the past as many normative theorists seem to have opposed social change as have supported it does this suggest that we are achieving the same kinds of advances that even the most prosaic of scientific fields take for granted? The more positive defense of socially abstracted ideal theory, then, will have to be that it is simply unavoidable if we wish to think through serious problems clearly, because it allows the kind of critical distance that cannot be gained in any other way (e.g. Rawls 1971, pp. 89). Waldron, I am sure, would be impatient with the objections I have made here, and would see them as the abdication of critical thought rather than its regular practice (e.g. Waldron 1995a, p. 171). He would doubtless argue that only through rigorous evaluation of the full social world according the most rationally defensible standards will we have a chance to bring about real improvements over the long term. He would also argue, I suspect, that the analysis of more contextualized social tradeoffs will be possible only when we know the ideal arrangements we wish to pursue a final goal, so that socially abstracted modes of analysis are the only ones truly available to us if we wish to do something other than affirm the world we already know. All of these arguments are familiar and appealing ones. Yet, I am far from persuaded. I agree that there is much that is attractive in this vision of normative inquiry if truly practicable as presented, it would give us a firmer sense of our own footing, and allow us to engage in moral evaluation with fewer chances of making a mistake. But there is no obvious way to prevent socially abstracted arguments from going profoundly astray once they are released into the world, and this means that such leverage, if it could be achieved, could come only at a price. Moreover, I see little evidence that the intellectual tools of socially abstracted theory really have been or can be up to the task in the first place. We live in social systems constituted throughout by relations of power, and these relations shape our thought at very deep levels. Hoping to escape these limits by fleeing further into our intellectual frameworks themselves seems to me precisely the wrong solution. Sticking close to social facts of the world as we know it, and focusing on the potential political choices available to specific social actors, will not ensure that we do not fall prey to these kinds of limitations. But it will give us a better chance to circumvent them, by keeping us always aware of specific structures of power as they now exist, and by making clear the challenges that real social actors face in their choices. Indeed, this is perhaps the greatest strength of the contextualized

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approach it reminds us that our normative goals should focus on political action rather than simply words, and reminds us that we, too, are limited creatures perennially shaped by forces beyond ourselves, struggling to navigate limits we cannot hope to overcome. Transformative imaginings and social power I have set this closing paragraph off on its own, not to sum up everything I have said so far, but to insist on an absolute and final fall-back position before concluding. Even if most of what I have said here about the dangers of socially abstract theory turns out to be mistaken, there is a particular kind of abstract theorizing that is unambiguously dangerous that which combines abstracted theory with an apparent analysis of the moral circumstances of subordinate social actors. Put bluntly, socially easy targets are very rarely legitimate focuses for decontextualized normative analysis. Attacking the claims of indigenous peoples (or African-Americans, the poor, etc.) can have powerful social effects, even if one tries to hedge those attacks with multiple caveats purporting to show how the principles invoked fit within a larger theoretical structure. Thus the battles that must be fought in abstract theory are precisely where the strongest sources of resistance are to be found: where political actors have the most social resources to defend themselves. If we believe in the power of our abstracted moral theories, we ought to aim them clearly at those persons who most need to change their actions; we will probably discover quickly that even here we need to pay close attention to the details of the case, but if we choose targets well our work will at least a greater chance of offering useful tools to our fellow citizens in pursing the hard work of real social revision. If we fear that our abstract theories will not be effective here, however, perhaps we ought to set them aside instead, and pursue normative analysis through some more carefully contextualized method.

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Acknowledgments
I would like to thank Avery Kolers, Alison McQueen, Douglas Sanderson, Cricket Keating, Luis Cabrera, Claire Rasmussen, David Kahane, Melissa Williams, Joe Carens, Chris Lebron, Bill Gorton, Larry Dodd, and the anonymous reviewers for their helpful comments and suggestions.

Notes
1. Marxs predictions about the character of social order after a workers revolution surely constitute one of the most horrifying historical examples. 2. Simply because this danger is familiar does not mean that theorists reliably avoid it. My own view is that a large proportion of ideal theory fails on this score, including much in Rawls.

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3. Although this conception of discourse has been outlined by a wide range of theorists including Foucault (e.g. 1980), my portrayal is especially influenced by the concise treatment in Jakobson (1998, pp. 522524). 4. I do not intend to suggest that powerful social parties fall primarily into the opportunistic camp; indeed, my own expectation is that they are caught up in patterns of discourse most of the time themselves. 5. An extended version of the argument was published as Waldron (1992b); more recently, it has been restated in Waldron (2002). 6. See, for example, the grounds for evaluating indigenous claims offered in Waldron (2003, pp. 8182). 7. For example, the social privileges that come packaged with Whiteness in many societies. Of course, one could plausibly describe these patterns as inheritance in a broader sense. 8. Waldron does voice some concerns about the potential misuses of his arguments (e.g. Waldron (1992a, p. 27) but they show little awareness of the depth of the challenge involved. 9. In this way at least, Waldrons argument is far more protective of the economic status quo than that of Nozick (1974). 10. Why focus on one set of social actors rather than another? If we are egalitarians of an especially trusting kind, we might feel drawn to focus on the options available to courts or legislatures. Yet, such bodies seem unlikely to be agents of justice within an unjust society, and they also constitute a profound temptation to be captured by our imaginations although courts and legislatures are quite limited in their possibilities, they often seem far less so where any particular decision is concerned. Both might make a range of decisions in any given case, and these decisions might add up to significant social change if they occurred in just the right way; the truth that they will not is easy to forget. Thus we do best to begin analyses from a perspective closer to ground level. For an extended exploration of the grounds for this reorientation, see Kolers (2005). 11. For an indigenous view on how these discursive fields might be navigated, see, for example, Turner (2006). 12. There may be questions about whether the strategy is worth pursuing where the odds of success are low, given the opportunity costs of foregoing other strategies and goals, but I assume that any indigenous group will have to consider these issues and judge relative viability for themselves. 13. Those who know Waldrons work are likely to protest that he rejects this assumption about the legitimacy of cultural rights (e.g. Waldron 1995b, 2000). While this is true, a detailed contextual investigation would demonstrate difficulties like those outlined here: once again, he has implausibly hopeful visions for what self-professed liberal states might achieve in practice (e.g. Denis 1997, esp. p. 152). 14. Sometimes indigenous actors demand this as a strategy for increasing their political leverage, but even this is much less common than Waldrons framing would suggest. For a more common indigenous view of land use see e.g. Borrows 2002, pp. 3546. 15. States are generally far more willing to displace people to satisfy the wishes of commercial and other concerns than they are to provide additional properties to poor groups, indigenous or otherwise. Justice Clarence Thomas was surely correct when he noted that urban renewal in the United States was often code for Negro removal (Kelo v. City of New London 2005). 16. In other words, it is to help us learn the skill of moral judgment (e.g. Thiele 2006).

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Note on contributor
Burke A. Hendrix teaches in the Department of Government, Franklin & Marshall College. He is the author of Ownership, Authority, and Self-determination: Moral Principles and Indigenous Rights Claims (Penn State University Press, 2008). Essays on related topics have appeared in Journal of Moral Philosophy (2008), Political Theory (2005 and 2007), and American Indian Quarterly (2005).

References
Borrows, J., 2002. Recovering Canada: the resurgence of indigenous law. Toronto, ON: University of Toronto Press. Bruyneel, K., 2007. The third space of sovereignty: the post-colonial politics of US indigenous relations. Minneapolis, MN: University of Minnesota Press. City of Sherrill v. Oneida Indian Nation of New York, 2005. 554 US 197. Cohen, G. A., 2008. Rescuing justice and equality. Cambridge, MA: Harvard University Press. Denis, C., 1997. We are not you: First Nations and Canadian modernity. Peterborough, ON: Broadview. Foucault, M., 1980. Two lectures. In: M. Foucault, Power/Knowledge: selected interviews and other writings 19721977. New York: Pantheon Books. Hellenbrand, H., 1985. Not to destroy, but to fulfil: Jefferson, Indians, and the republican dispensation. Eighteenth-Century Studies, 18, 523549. Hendrix, B. A., 2005a. Moral minimalism in American Indian land claims. American Indian Quarterly, 29, 538559. Hendrix, B. A., 2005b. Memory in Native American land claims. Political Theory, 33, 763785. Hendrix, B. A., 2007. Moral error, power, and insult. Political Theory, 35, 550573. Hendrix, B. A., 2008. Ownership, authority, and self-determination: moral principles and indigenous rights claims. University Park, PA: Penn State University Press. Jakobson, J. R., 1998. Queer is? Queer does? Normativity and the problem of resistance. GLQ, 4, 511536. Kelo v. City of New London, 2005. 545 U.S. 469. Kolers, A., 2005. Justice and the politics of deference. Journal of Political Philosophy, 13, 153173. Macklem, P., 2001. Indigenous difference and the constitution of Canada. Toronto, ON: University of Toronto Press. Mill, J. S., 1982. On liberty. New York, NY: Penguin. Nozick, R., 1974. Anarchy, state, and utopia. New York, NY: Basic Books. Rawls, J., 1971. A theory of justice. Cambridge, MA: Harvard University Press. Rawls, J., 1996. Political liberalism. New York, NY: Columbia University Press. Thiele, L. P., 2006. The heart of judgment: practical wisdom, neuroscience, and narrative. New York, NY: Cambridge University Press. Turner, D., 2006. This is not a peace pipe: toward a critical indigenous philosophy. Toronto, ON: University of Toronto Press. Waldron, J., 1990. The right to private property. New York, NY: Oxford University Press. Waldron, J., 1992a. Superseding historic injustice. Ethics, 102, 428. Waldron, J., 1992b. Historic injustice: its remembrance and supersession. In: G. Oddie and R. Perrett, eds. Justice, ethics, and New Zealand society. Auckland: Oxford University Press, 139170.

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Waldron, J., 1993. Homelessness and the issue of freedom. In: J. Waldron, Liberal rights: collected papers 19811991. Cambridge: Cambridge University Press. Waldron, J., 1995a. What would Plato allow? In: I. Shapiro and J. W. Decew, eds. Theory and practice: NOMOS XXXVII. New York, NY: NYU Press, 138178. Waldron, J., 1995b. Minority cultures and the cosmopolitan alternative. In: W. Kymlicka, ed. The rights of minority cultures. New York, NY: Oxford University Press. Waldron, J., 2000. What is cosmopolitan? Journal of Political Philosophy, 8, 227243. Waldron, J., 2002. Redressing historic injustice. University of Toronto Law Journal, 52, 135160. Waldron, J., 2003. Indigeneity? First Peoples and last occupancy. New Zealand Journal of Public and International Law, 1, 5582.

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