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.

Ethical Ambiguity With Pockets

I found myself contemplating the origin of a pair of shorts. They are comfortable, 100% cotton shorts in Uniqlo’s highly functional minimalist style, casual but neat. They extend to mid-thigh, have two side pockets, and are held up with a threaded cord. They are “branch bankers’ rig”, to borrow Les Murray’s description in The Dream of Wearing Shorts Forever, sending signals of respectability without excessive formality in Australian and Singaporean society, and while Murray correctly notes they are “ideal for being served last in shops of the temperate zone”, I can confirm that on the equator they are perfectly adequate for being served Sunday brunch in a five star hotel on Orchard Rd, at least if worn with a collared shirt and a sufficient sense of entitlement. They were bought this year at the enormous Vivo City shopping mall in Singapore, and are purple, because I let my young daughter choose the colour.

Uniqlo, part of the corporate parent Fast Retailing, is known in the industry for maintaining high quality at a cheap price point. To achieve that, it carries a relatively small number of styles, but in dozens of colours. The dyeing process is tightly quality controlled and capital intensive. For example Uniqlo suppliers like Lu Thai Textile describe precise dyeing plant relying on specialized mechanical equipment for dipping and computer assisted design (CAD) for looms. Lu Thai is a vertically integrated company including cotton farms and spinning. Lu Thai’s website describes cotton farms in Akesu in Xinjiang province, so perhaps these shorts were made from cotton farmed in Xinjiang, and shipped elsewhere in China to be weaved and dyed. Lu Thai also has a presence in Shandong province, for example, which is more industrialised and with more middle class jobs. Shandong GDP per capita is US$13,262 vs US$8,755 in Xinjiang, and factory operator versus cotton farmer pay would typically reflect this difference.

Uniqlo also mentions China, Vietnam, Cambodia and Bangladesh as significant production centres for the company. Uniqlo has an internal system of technical specialists parallel to its management structure, at the top of which are around twenty takumi, or fabric masters, situated in production centres; going by the annual report they are mostly Japanese. Stitching is typically a more labour intensive process than dyeing, and in the case of these shorts, relatively unsophisticated compared to a dress shirt. This makes it likely to be focused on cheaper labour sites, though the label for these shorts states they are MADE IN CHINA. As noted in the course, and shown in the movie China Blue, sewing machine operators in South and East Asia are most often women. Lu Thai Textiles, which also makes shirts, features a photo on its website of a large factory floor where the sewing machine operators are 80% female; this is part of the company’s public narrative for this work. Fast Retailing was the subject of the 2011 book The Glory and Disgrace of Uniqlo, accusing it of “harsh, slave-like conditions” at overseas factories. Uniqlo’s business strategy of a small number of styles allows them to make massive bulk purchases from suppliers, sometimes taking the entire stock. This drives down unit costs through economies of scale, but also through tremendous pricing power over small suppliers. As Uniqlo has been expanding rapidly, this puts pressure on the more vulnerable participants in its supply chain, people like Jasmine in China Blue.

Uniqlo 2010 2011 2012 2013
No violations 9 6 8 10
Minor violations 52 56 59 95
Major violations 50 63 51 45
Severe violations 19 19 34 19
Highly unethical, review of contract 2 0 7 1
Total 132 144 159 170

According to their own Corporate Social Responsibility reports, as Uniqlo supplier factories increased from 132 to 170 from Financial Year (FY) 2010-2013, severe ethics violations went through a spike of 21 to 41 in FY 2012, with 7 contracts reviewed in that year, and some contracts cut. For comparison, the one contract reviewed last year for Uniqlo is more typical. Two Chinese factory contracts were also cut for use of excessive, unpaid overtime and child labour – a fifteen year old working a job requiring a sixteen year old.

It is dismaying to learn that Uniqlo, until a few years ago, seems to have payed more attention to fabric quality than the health and safety of people that make their company successful. Fast Retailing only seemed to improve the working conditions supply chain under consumer scrutiny, the power of their global brand working against opacity. It is also interesting how speculative this process of investigation has to be. The tag on these shorts has a 45 character code on it, which in a firm with Fast Retailing’s robust quality culture, is almost certainly a unique identifier for tracking from early in the supply chain all the way through to retail stores. I wonder what it would mean to make that information public, or to use technology to connect specific participants in the supply chain in a social network built around a specific item. Would such a panopticon of shorts be an ignorable gimmick, a huge invasion of privacy, a way of re-establishing human connection over the top of abstracted capitalist commodity exchange, or a way for privileged rich people to harass their unwitting global servants online?

Gough

Gough Whitlam’s political career was over before I was born, but his mythological career was just beginning. He was a man made in heroic proportions, a handsome face with a telegenic gaze, six foot four and a booming baritone voice in the educated accent of the Australian middle class. Gough’s voice may now define Australian soundbite oratory. “Well may we say God Save The Queen, because nothing can save the Governor-General”; “It’s Time”; “Crash through or crash”. His very names – either of his names – fall with the heft of a Patrick White novel. The last Australian prime minister to serve in the military. Intellectual, charismatic and impatient.

Clifton Pugh's portrait of Whitlam

Gough wasn’t my hero. He wasn’t a childhood idol or a teenage political ideal for me. I am not born of that leftist tribe. But he is a heroic figure, playing all the right chords on our acculturated meat brains. He had his sweeping policy triumphs like Medicare and China diplomacy, the great raiser of the koala bear leviathan, his electoral victories, his electoral defeats.

I used to think the Whitlam government’s impatience in ramming through so many changes so quickly was its great mistake, that it died of whiplash. This is the conventional wisdom, but I’m no longer so sure. Complex systems can change incrementally for certain things, but they are homeostatic too, they slip back into established paths. Sometimes you have to change lots of things at once for any change to stick. Sometimes history shifts with a crack. You blink, and everything continues, but everything is changed. The black and white television has switched to colour.

Gough’s story has villains and Gough himself had tragic flaws. The intellectual that couldn’t get the numbers to add up, the charismatic leader that couldn’t keep his cabinet together. The betrayal, the unravelling, the dismissal. But this is a modern Australian story, not a Greek tragedy. Whitlam-Odysseus went home with his Penelope, became a professor, and won saucepans on Sale of the Century. The adoration of the living man was a bit close to royalty, for me. He had a long life, and a good one. Now he has climbed into a heavenly V8 the size of a small tank, and driven off, trailing clouds of glory. We should paint him on the doors of our temples and the walls of our pool rooms, to ward off evil and scare away the ghouls of complacency.

Sown In The Nature of Man

As, immediately post the Australian election, our elected representatives wrestle over the spoils of power in a satisfyingly ineffective way, my mind turned to the partisan diversity we see in this parliament. We still have two large blocks of Labor and Coalition, plus the much ballyhood four or so independents, and a Green, in the lower house alone. Its worth remembering the Coalition itself is fractured in an increasingly complex and regional way. It is actually a coalition of four parties: Liberal, National, the NT’s Country Liberal Party and Queensland’s LNP. In the Senate, due to statewise proportional representation, we have an additional Green block plus Family First members going in and DLP members going out.

It seems, all in all, a rather nice demonstration of the inverse relationship between ideological homogeneity and faction size. Australian parties have extraordinarily strict whips. Voting against the whip can easily result in loss of preselection or even ejection from the party. An unwhipped vote is such a rarity that it has its own jargon – the conscience vote. According to the aforelinked McKeown and Lundie paper, in federal parliament only 32 bills or issues have gone to conscience vote between 1950 and 2007.

For a quick comparison, in US Congress, there were 858 non-party unity roll call votes. In 2007 alone. In that year, around 90-95% of members voted with their party on roll call votes, and that is historically high. Comparisons with British parliament also quickly show rebellion rates of up and above 40% for particular members.

This should be quantifiable and visualisable, using techniques like Fleisher et al’s or the striking graphs on informal voting Stubborn Mule produced for this election. A bit of munging together the different data sets would be needed though.

The latent causes of faction are thus sown in the nature of man — James Madison, Federalist No. 10

The Courtesans of Democracy

集灵台之一

日光斜照集灵台
红树花迎晓露开
作夜上皇新授箓
太真含笑入帘来
— 张祜

On The Terrace of Assembled Angels

Sun shines over the slanting roof
Red blossoms welcome the dawn dew
Last night the Emperor selected a new girl
Her smile sneaks past the curtain
— Zhang Hu

This is a peculiar Australian election, one with an unusually febrile and brittle political class visibly unable to deal with a moment of tangible success and prosperity. As a nation, we are in a rare economic position to make strategic policy decisions on, say, climate change, or labour market liberalization. Our leadership has chosen to celebrate this by smearing itself with pork fat and staging a cream pie wrestling match in a giant circus ring.

Years ago on South Sea Republic we used to kick around an idea of government design patterns – recurring structures seen in recognisable forms wherever government is found. It’s a concept that is not exactly new to statecraft, but the format is, originating from architects like Christopher Alexander but finding perhaps most of its popularity in software engineering.

One pattern I thought worthwhile, but never wrote up, was Courtesan / Eunuch. Eunuchs and imperial courtesans are specialist professions to serve the executive, and have an explicit role in preserving the imperial mandate. In dynastic systems, this is usually based on genetic membership of the royal line. Loosely generalising from the Chinese and Ottoman imperial courts, you therefore have a harem to propagate the line, expanding the odds of a continued mandate beyond a few royal princesses. You also have eunuchs to manage access to the harem and minimise risk of other men’s sperm getting access to them.

The Chinese imperial system was established on a public philosophical basis of the Mandate of Heaven. And its true that this accommodated dynastic change, but the usual transition was expected to follow heredity. For an established dynasty, the Emperor had his mandate by virtue of being the Son of Heaven. The Mandate of Heaven was not a simplistic doctrine of absolute power, either; it represented caring governance of the land and its people.

The specialists who formed the eunuch and courtesan classes included humanity’s usual mix of the brilliant and the venal. They provided a valuable service to many emperors, and I suspect sometimes a welcome buffer against the stultifying rituals of the scholar-bureaucracy. The power of these groups would wax and wane, but when the opportunities arose, clever courtesans and eunuchs could wield a great deal of formal and informal power. Indeed, since the civil service scholars hated having their power usurped in this way, there are plenty of detailed accounts of when and how it went wrong, and corrupt eunuchs and power mad courtesans, like Yang Guifei (杨贵妃), are a recurring theme in Chinese history. Another example is Suleyman’s consort Ruxanna, celebrated by poets throughout the ages.

Though we shouldn’t forget the scholars’ partisanship in this matter, they could have a point. Confined to the inner court for much of their life, prevented from formal training in matters of government, people from this class had little experience, sympathy or exposure to the broader country. When they reached exalted positions, they were prone to seeing government entirely through the lens of court or harem politics. How else to explain the spectacular devotion to face of someone like the Empress-Dowager Cixi (慈禧), who while China was being sliced up by colonial powers, spent fortunes rebuilding the Summer Palace rather than the Qing army? Or her eunuchs who spent the Navy budget building a spectacular marble boat on the lake of that same palace? There is an interesting revisionist view that Cixi was a Chinese patriot. She stayed on top of the Chinese court for 47 years, so she certainly couldn’t have been an idiot. But she must have had a spectacularly skewed view, in which appearances of courtly grandeur were paramount, to allow these decisions to happen.

Or to restate in another way: eunuchs and courtesans running the show were a good indicator the government had become detached from reality and ideologically inbred. The consensus reality of the court was fractured from the agricultural and economic realities on which it relied. This could happen even if these classes just did their job of preserving the mandate of the government.

Australian democracy is a far healthier system to live under than the imperial China mandarinate. Yet democratic leaders still rule according to a philosophical mandate, and they have professional specialists to protect and cultivate it. This is the spin doctor, servant to the executive, guardian of the flame of popular and electoral approval.

Again, in itself this is no bad thing. Democracy would hardly be worth the name if government ignored the people. The recent and unusual palace coup in the Labor party has thrown light on how the lens of opinion polls and focus groups distort the world for those that live in the scented garden of the spin doctor harem.

The courtesan here is not our historic first female prime minister. We are not quite at that stage of political inbreeding. Ms Gillard has trodden the unoriginal and traditional path of lawyer turned lawmaker. It’s people like the bumbling backroom eunuchs of the NSW Right, Karl Bitar and Mark Arbib. These are the movers who knifed the bureaucratic Rudd when he lost popularity for reneging on a pledge they advised him to renounce – around action on climate change. They have been playing the same game with NSW premiers for the last few years; three so far in just this parliament.

The theory here seems to combine admiring the power of our TV-age obsession with a party figurehead with disdain for the actual role of a leader. When this is overlaid with an imagined mastery of targeting key marginal seats without having any strategic direction, you get a content-free election like this one, which hasn’t even succeeded in making Labor popular, and even required Rudd had to be bizarrely resurrected to salvage the party’s chances in Queensland.

Both Kevin Rudd and Malcolm Turnbull owed some of their appeal to their advocacy of strategic policy changes, and to their backgrounds at least slightly outside the official finishing school for politicians. This school is a matter of advancing from university through staffer roles and think tanks until landing a seat in parliament. And yet neither the diplomat or the merchant quite had the partyroom skills to stay in the leadership position.

Under pressure from the electorate it serves, our inbred contemporary political class tries to renew itself from related social groups by bringing them into the system. It then kneecaps those recruits for not having sufficient political skill, but crawls back to them for forgiveness afterwards. Devotion to tomorrow’s opinion poll numbers instead of the next decade’s policy is like living in a cruel casino of popular whim, which doesn’t even pay out very well, because people care about next year more than tomorrow. And when you spend too much time with the courtesans of democracy, you end up fucked.