Jamie Whyte on race based law

Jamie Whyte has done a speech on the place of race in the law. Some people will react kneejerk against it and say it is Maori bashing, but I actually think he makes his points by avoiding inflammatory rhetoric, and focusing on principles and outcomes.  Some extracts:

David Cunliffe recently apologised to a Women’s Refuge symposium:

“I don’t often say it – I’m sorry for being a man … because family and sexual violence is overwhelmingly perpetrated by men.”

The Prime Minister accused Cunliffe of being insincere. Maybe he was.

Or maybe not. The apology conforms to Labour party thinking. Whereas we in ACT believe in personal responsibility, the Labour party believes in collective responsibility.

Those who believe in collective responsibility see people not so much as individuals but as members of groups: men and women, gays and heterosexuals, the rich and the poor, Maori and Pakeha.

For example, the Labour Party has a rule that half the people on their list must be women. This is intended to ensure equal parliamentary representation for women.

Labour believes that a man cannot represent a woman in parliament, even if she votes for him. And that a woman automatically represents other women, even if they did not vote for her or disagree with her. All that matters is group membership.

Similarly, Cunliffe believes he is responsible for sexual violence, even though has never perpetrated any, simply because he is a man.

This “identity politics” comes easily to many people. It is a way of thinking with ancient roots in mankind’s tribal history.

Nevertheless, it is ugly. It is the mindset that lies behind such obscenities as collective punishment and clan feuding.

Identity politics is one reason I could never vote left. I am socially liberal on a fair few issues, but I firmly believe in treating people as individuals, not just as members of a gender, race or other identity.

Alas, the principle that the law should be impartial has never been fully embraced in New Zealand. Even today, after any number of equal rights movements, New Zealand law makes a citizen’s rights depend on her race.

The reparations made to iwi by the Waitangi Tribunal are NOT an example of this. The Treaty of Waitangi gave Maori property rights over the land they occupied. Many violations of these rights followed. The remedies provided by the Waitangi Tribunal are not a case of race-based favouritism. They are recognition of property rights and, therefore, something that we in ACT wholeheartedly support.

Good to have that stated. I strongly support them also.

Many people have opinions about what other people should do with their property. Under the Resource Management Act, how much weight your opinion carries depends on your race. If you are Maori, you have a say on these matters that others lack.

Some state run or state directed organisations openly practice race-based favouritism. I know a woman who has raised children by two fathers, one Pakeha and the other Maori. If her Pakeha son wants to attend law school at Auckland University, he will have to get much higher grades than her Maori son.

That’s a good example. They are raised by the same mother in the same household, with the same access to opportunities. But the blood line of their fathers gives one of them a privilege the other does not have.

The question is why race-based laws are tolerated, not just by the Maori and Internet-Mana Parties, but by National, Labour and the Greens.

I suspect the reason is confusion about privilege.

Maori are legally privileged in New Zealand today, just as the Aristocracy were legally privileged in pre-revolutionary France.

But, of course, in our ordinary use of the word, it is absurd to say that Maori are privileged. The average life expectancy of Maori is significantly lower than Pakeha and Asian. Average incomes are lower. Average educational achievement is lower.

Again it is good he stated this. Overall Maori are not privileged. They do worse in most areas we deem important. But just because they are under-privileged in many areas, does not mean it is incorrect to say they have some special legal privileges.

Legal privilege offends people less when the beneficiaries are not materially privileged, when they are generally poorer than those at a legal disadvantage.

Absolutely. The argument is you use legal privilege to try and compensate for the lack of privilege in other areas. But is that a good idea?

Apparently, many people do need to be reminded why the principle of legal equality is important.

It is important because, without it, society becomes a racket.

When people are equal before the law, they can get ahead only by offering other people goods or services that they value. We are all playing to the same rules, and we do well only if we “deliver the goods”. This promotes not only economic growth and prosperity but civility. It forces people to attend to the preferences of others.

Where people enjoy legal privilege, by contrast, they can get ahead without doing anything of value for other people. Because the system is rigged in their favour, they don’t need to “deliver the goods”.

Suppose, for example, that the government decided that Japanese women deserved a legal privilege. They should be allowed to erect barriers across the roads they live on. Anyone wanting to proceed down the road must negotiate with these women to get the barriers lifted.

This would provide Japanese women with an opportunity to make easy money by charging people a fee to lift their barriers. It would thereby divert them from productive occupations. It would drive up the cost of travelling around the city, as people either took longer routes or paid the fees. And it would create feelings of resentment towards Japanese women.

This may sound fanciful. But it is precisely the situation that the Resource Management Act (RMA) has created with regard to resource consents and iwi. If you want to proceed with developing land near iwi, you may well have to pay iwi for permission to proceed. That easy money diverts Maori from more productive activity, drives up the cost of developing land and creates resentment towards Maori.

This is sadly true. It incentivises some Iwi to make money from opposing developments, rather than encouraging them to be involved in their own. Of course not true in all cases, such as Ngai Tahu.

Nor does legal privilege do Maori any good over the long-run.

Allow me another analogy. Imagine that SANZAR, the body that administers the Super 15, decided that the Blues deserved a legal privilege. Whereas all the other teams will continue to earn 5 points for a try, the Blues will earn 10.

This would benefit Blues players over the short-term. They would win many more games than they now do. But giving the Blues this advantage in the rules would reduce their incentive to work hard on their skills and fitness. After a while, standards of play at the Blues would decline. Fewer Blues players would be selected for the All Blacks.

Return to those half-brothers I mentioned earlier: one Pakeha who will need an “A” to get into law school, one Maori who will need only a “C”. Which one is more likely to work hard at school? Which one is more likely to make the most of his potential?

Such scheme are very well intended, but I share the concern that they do more harm than good in the long run.