Mabo, Patchwork and The City

I’ve been reading Mabo vs Queensland (No 2), the 1992 High Court ruling that established native title in Australia. It ranges all over. It would make a good non-fiction comic book, like the titles about Rosa Luxembourg or North Korea you get these days. I have none of the skills or personal background to make it, but I would love to read one. If anyone makes such a thing, please tell me.

Prior to Mabo, Australian land without explicit title was considered terra nullius, zero land, deserted land without ownership, even though obviously there were inhabitants of the continent before white settlement. Within the Mabo decision, at least in Justice Brennan’s judgement, once the idea that terra nullius should apply to any Aboriginal land is questioned, much precedent also disappears. So he needs to consider two threads of history.

The first thread is older precedent for maintenance of title when a land is invaded. Reading it, we travel the world from seventeenth century Ireland, to pre- and post-independence India, to colonial Africa, to nineteenth century America, and Marshall’s Supreme Court judgement in favour of the Cherokee. Brennan considers tanistry and usufructuary rights, a wordy tour of property and sovereignty. This may say more about me than the culture at large, but such depth of attention to the history of property is something I’m more used to seeing on obscure rightwing blogs. It gives the peculiar impression that Mencius Moldbug wrote a very long Christmas Card to indigenous people, with presents at the end.

The other thread of history is the very local one of the Murray islands. From the first moment of written history for the region, the reports are of a settled people with not just defined hunting rights, but gardens laid out with clearly maintained family plots. Even when things are distorted somewhat by contact with colonial authorities, missionaries, and the invention of a headman, there is continuous occupation and use in a form easily legible to those familiar with European legal ownership. It’s families with inherited houses and backyards. Things change, but that basic arrangement does not. By the time the Queensland government got around to explicitly extinguishing existing title for the island in the 1980s, the ham-fisted way they did it violated the 1970s federal Race Discrimination Act, and was overturned (that’s Mabo vs Qld (No 1)).

Native title snuck through the gaps in existing legislation and case law, overlooked … it escaped overcoded nullity. Codes of law are obviously state-entwined artifacts, and hardly smooth spaces of nomadic movement. But common law in particular does have an immanent quality of bottom-up reasoning from examples. It has a patchwork inconsistency sensitive to weird traditions, particularities and local exceptions. It also has aspects of the general intellect. It’s an externalized memory, far bigger than one person, capturing social rules; a game of asking for and giving reasons, as Negarestani describes the more general rational project.

English common law propagates both vertically and laterally: it was spread by colonialism, but countries who have long since gained independence refer to and expand upon judgements in peer states. That cooy-paste spread also means there is precedent to inspect from every continent, intersecting with many traditions. English common law, or parliamentary law for that matter, also seems fairly compatible with overlays of other constitutions from other legal commitments – be they national constitutions or EU treaty obligations. Just add another axiom.

Crazy Quilt Statecraft

This all intersected at an odd angle with the latest updates from the seasteading crowd around Patri Friedman, and comments by xenogothic. Seasteading is apparently on land now, and focused on trading colony-style charter cities instead of nomadic fleets of sea vessels. English common law is the favoured choice of legal system.

xenogothic writes:

Friedman’s fatal flaw — and he apparently says himself in Chapman’s article that he’s been trying these things out for twenty years so he really should have realised it by now — is that he is trying to replicate the end of the frontier. Every time, he’s trying to replicate a fleeting moment within the American West’s territorialisation, between the anarchic freedom and the recoding of English capitalism.

Reproducing the American West – particularly the Wild West – is a recurring failure condition of American libertarianism (and there really is little other kind). Replicating the end of the frontier is exactly the right diagnosis of libertarian gun politics, for example. The tech has moved, but the thought has not.

This charter city turn seems something else. The point of reference is usually not the OK Corral, but something more like (gunless) Hong Kong, the earliest English colonies on the American eastern seaboard, or the free ports of European history. As the anti-democratic brutality of the last year in Hong Kong has shown, free cities are a negotiated space between the crushing military and bureaucratic power of large states, and the tax rents and positive spillovers of a city open to trade and cultural exchange.

Critics also forget that laissez-faire in Hong Kong or Singapore never stopped the government co-ordinating the building of a lot of houses, hospitals, metro systems, and so on.

I’m not advocating starting new Opium Wars just so we can get new Hong Kongs, but neither is Friedman. He’s describing it as a kind of tax break office park, it’s true, but that is in Bloomberg (speak capitalism when selling to capitalists, I guess). It would be good to see more agora and less duty-free shop, of course. There’s a lurking failure mode of frappe mall-cop arcology, low regulation for the corporate owners, rigorously surveilled and regulated for normal residents, everyone citizens of elsewhere, extradition always the first resort.

Opening frontiers are not always Cortez and smallpox. They are far more ambiguous: they are also Marco Polo, Peter Minuit trade-stealing Manhattan, the Lanfang Kongsi, or the German trading colony outside Saint Petersburg. Charter cities could be less of a replay than a spiral-back.

((Crazy quilt – cento der metaphysik – patchwork – is also a name Kant uses to deride metaphysics in the Prologomena.))

Firebomb Burbclave

We are not yet through summer and this climatethrashed Australian weather may have horrors to come. This post was written in dribs and drabs, and one of the minor political curiosities to flicker past was an AFR op-ed proposing some part of the destroyed region be made an export processing zone (ie a low-tax regional cousin to the charter city).

My first reaction was revulsion at the opportunism, and a sense that the proposal wasn’t much of a solution; that probably more funding for forestry management, adaptation and firefighting infrastructure was more relevant. This does seem in hypocritical tension with my support for patchworks and city-states. Presumably disaster capitalism always seems better when you’re not on the receiving end.

On the other hand, isn’t regulatory patchwork without civic autonomy rather missing the point? The location is weird, because the fires ravaged mainly the country towns that co-exist with the broad metropolitan footprint of Sydney and Melbourne. They aren’t natural ports, or airports. A hinterland without an extra-connected urban centre is a tax farm, not a polity. A new city there would be an inland exurb for the existing metropole.

Once, as in Greg Egan novels, the futurist location for New Hong Kong was Arnhem Land. It seemed it might arise from decades of failures to reach a political settlement without a treaty, and state-like autonomy for the First Nations. It might have been a decent way to give up the attempt to police people from Canberra. In the event, things have gone the other way, with ever more paternalistic interventions. Mabo, and the legislation that followed, are parallel tracks to that, recognizing title within the Australian state, re-stitching the communities into the liberal and legal fabric of the Commonwealth.

Current military and surveillance tech – drones, cameras and satellites – is just not conducive to the emergence of peers to the current club of nation states. Countries even pretend Taiwan doesn’t exist, despite seventy years of modern history, a geographic border, a flag, a currency, and more firepower than Prussia. If Taiwan hasn’t got a chance, how is your floating burbclave off the coast of Thailand going to join the club? (Also, it takes a spectacular ignorance of Thai history to imagine they wouldn’t be prickly about sovereignty.)

So why contest that ground? Make your genuflections to a local Westphalian dragon throne and then construct a different civic space within its nominal territory. Enact the Urban Intelligence Box Problem. Escape through the gaps, copy-pasting whatever common law is useful.

Nation-states – perhaps a few nice exceptions aside – are not going to welcome climate refugees with open arms. But as the refugee cities group point out, they might be convinced a charter city is better than a camp.

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