Why certain things shouldn’t be “owned”
What can we truly “own”, and are there things in this era of late capitalism where our current, long-evolved legal and philosophical definitions of ownership are inadequate?
The audience at The Ethics Centre’s ‘Ethics of Ownership’ event was posed these questions, and others, with stimuli scenes by guest actor Sheridan Harbridge.
In Common Law, ownership entails the “right to possess a thing, to use it to the exclusion of others, to alter it, to profit from it, and to dispose of it,” Ethics Centre Executive Director Simon Longstaff said.
This current definition derives from John Locke’s labour theory of property, that when someone mixes their labour with commonly held or natural “God-given” land it can become their private property.
However, Locke qualifies, this applies “…at least where there is enough, and as good, left in common for others.” Meaning a person should not be able to own more than they can use without it going to waste.
A series of quandaries posed to the audience at ‘The Ethics of Ownership’ produced some interesting and instructive dissonance in the way we think about ownership. The story of a woman who took apples rotting on the ground from an orchard to feed her starving family, knowing she’d been denied the right to take them, produced an interesting take on qualifying factors.
Most of the audience thought she had committed theft, but the majority thought she shouldn’t be prosecuted, because the orchard owner had acted unethically in denying his unused apples to the starving family. Locke would argue that the man had forfeited his natural right to the apples as his property as they were going to waste, and that people have a legitimate claim.
17th and 18th Century philosophers Hobbes and Hume held that there “could be no natural right of property ownership, rather the various rights of ownership were created by the state (or some less formal community) and were, thus, a human creation,” and the state or community can change these rules as the imperatives and circumstances change.
These Enlightenment-era theories were established in early imperial/colonial Capitalism, as defined by Karl Marx, amid agricultural and industrialising societies. Marx argued that individuals should own all productive resources in common. This is because when one class (the proletariat) produces goods with their labour, on behalf of an ownership class that derives benefit, the proletariat becomes alienated from those goods and their labour when they cannot afford to own them.
Curiously, Ayn Rand, although a fervid Capitalist, also argued that, “The man who produces while others dispose of his product, is a slave”. Rand, however, argued this as a case for individual rights above all others.
When it comes to ownership over our own selves, a slim majority thought you should be able to sell your own organs, because “your body is the only thing that’s 100% yours,” as one audience member put it. Significantly more of the audience thought you shouldn’t be allowed to sell yourself into slavery, which links back to our (now) deeply held belief that you cannot own another person because, as Emmanuel Kant put it, no person can ever become a means to someone else’s end.
Locke did not extend common property rights to slaves, arguing that slaves cannot lay claim to property as they’re not considered part of civil society, “having forfeited their lives and, with it, their liberties, and lost their estates, and being in the state of slavery, not capable of any property.”
The audience’s answers show how much we value our personal autonomy over our bodies, and gave rise to the fact that, in Common Law countries, you don’t in fact own any part of your body. The “No Property Rule” prohibits individuals from claiming ownership over their own bodies or genetic material.
Interestingly, this law arose as a response to slavery entrenched by various judicial decrees over the centuries, including Shanley v Harvey (1763), where the judge decreed that, “[a]s soon as a man sets foot on English ground he is free.” With ownership of another human eventually ruled indefensible by the courts, and reasons given ranging from “from ecclesiastical law to grave robbing”, a person’s ownership of their own body was abolished as well.
Ownership comes with responsibilities as well as rights – you have the right to exclude others from using your property, but you also have a responsibility to protect that property from improper use by others, for instance, keeping weapons and dangerous animals contained from improper use. You also have a responsibility to use that thing, Locke argued, to maximise its productivity for the good of all society.
The audience consensus was that “owning” things that are of public value, such as artworks and the environment, should not confer the right to do what you like with your property. I would extend this concept to intellectual property such as patents for life saving, or life-improving, medications that private companies or individuals are currently allowed to own and may charge what they like for.
The argument of one audience member was that “things of shared value, while they can be owned in a legal sense, ownership should be more of a role of caretaking,” or akin to borrowing, where you’re duty-bound to return it in the same state you received it in so others can use it after. In the case of inheritance, this ethical obligation to caretake for the thing in possession would pass to whoever inherits it.
Does this mean that our sense of ownership, as defined by law precedent derived from Locke, is no longer fit for purpose, in an era of alienation from labour and destructive, extractive use of natural resources? Does a mining or forestry company have the right to own and ruin a piece of land because they have expended effort to harvest its natural resources, but not maintained or improved it?
When applied to things of common value to everyone on the planet, such as the environment, access to culturally valuable works of art, access to sun, water, shelter, sustenance, or medicine, our legally established definitions of ownership start to look inadequate.
Locke’s definition also didn’t account for indigenous concepts of ownership. For Indigenous Australians, the land owns the people and every aspect of their lives – spiritual, material, social, cultural – is connected to it and its maintenance. You cannot own property and derive maximum benefit from it to its detriment when you’re morally and culturally bound to be a caretaker or custodian for that property.
Perhaps our whole definition of private ownership needs a contemporary rethink when it comes to these objects, resources and ideas of inherent common value. We don’t need to abolish private ownership, but we do need to re-establish rights and responsibilities of use within the concept of the “common good”.
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BY Nick Jarvis
Nick Jarvis is a Sydney-based editor and writer on the arts, culture and technology. He's written for The Ethics Centre, the Walkleys, Sydney Festival, Sydney Film Festival, Vice and many Australian arts organisations. He currently works for Sydney Festival.
A note on Anti-Semitism
I was recently proud to join hundreds of others in signing an open letter condemning Anti-Semitism, Islamophobia and all other forms of discrimination.
The fact that such a letter needed to be written is deeply troubling. However, the world has been witness to the horrific consequences of remaining silent when the beast of race-based hatred begins to stir.
The great attraction of the statement I signed lay in its embrace of a positive principle that extends to every person – irrespective of their identity, conduct or circumstances. The principle of ‘respect for persons’ is the foundation upon which all human rights ultimately rest. It is an affirmation that every person has an irreducible, intrinsic dignity that cannot be reduced or forfeited. Although the rising incidence of Anti-Semitism may have prompted the statement, its concern extends to all who are at risk of harm.
Yet, what exactly is this harm? And how do we properly distinguish between vile acts of Anti-Semitism, on the one hand, and mere criticism on the other? For example, is holding Hamas accountable for the death of innocent non-combatants either ‘Anti-Palestinian’ or ‘Islamophobic? I think not. Nor is it Anti-Semitic to hold the State of Israel to account for acting in conformance with the laws of armed conflict. Both can be held accountable to the same standard without denying the intrinsic dignity of any individual or group.
Expressing sympathy for the plight of ordinary Palestinians, caught in the crossfire of an historically intractable dispute, does not amount to Anti-Semitism. Nor is it ‘genocidal’ to support the existence of the State of Israel (even while condemning many of the actions of its government).
Anti-Semitism is a very distinctive and potent form of evil. It denies the full and equal humanity of Jewish people – and endorses the destruction of their religion, culture, history and bodies. It has its own recognisable symbols – the Nazi Swastika, the ‘Heil Hitler’ salute (and associated symbology) – and revels in the despicable iconography of gas chambers and other elements in the apparatus of the Holocaust. It should be monitored and restrained with every ounce of energy and vigilance we can bring to bear. For where Anti-Semitism lives so there breeds all the other cesspools of hatred and despair.
So, it is unbearably sad when people loosely apply the label ‘Anti-Semitic’ on any occasion where Jewish people experience even the slightest form of annoyance, anger or discomfort.
We have been witness to an example of such ‘fast and loose’ language in the last couple of days. The ‘trigger’ incident was a decision by three actors to wear Palestinian Keffiyeh during the curtain call for Sydney Theatre Company’s opening performance of Chekhov’s The Seagull. The actors took this action without STC’s knowledge and without the support of the other cast members. Whether one agrees with the sentiment behind that statement is beside the point. In practice, they hijacked the company’s stage to make an entirely private, political statement. Now everyone else is left to pick up the pieces.
STC’s audience, supporters and donors are entitled to be annoyed by what occurred. So are the Board, management and members of the STC who had no knowledge of the planned stunt. Yet, nothing that was done on the night amounts to an act of Anti-Semitism. Naïve, perhaps. Unauthorised … certainly! Anti-Semitic … not at all.
To apply that label in the current circumstances is understandable when one considers the raw nerves and ancestral fears that are chafed in response to rising incidents of actual Anti-Semitism. However, over-reacting in this case (or others like it) brings about its own damage – especially when one part of our diverse, multicultural community bands together to boycott (‘cancel’) what it finds offensive. This approach did not help the cause of Christians and Muslims who have sought to censor those who offend or criticise. And I doubt that it will help the Jewish community. A diverse and vibrant community is made to seem monolithic in its outlook and concerns – separate from the whole.
I do not know if there are any Anti-Semites working at STC. However, I would be amazed if there were not at least some ardent critics of Israel (as there are amongst many Jewish people – the world over). But to be a critic of Israel is not the same as being an ‘Anti-Semite’. Of course, one can be both – but the distinction is vital and we all need to discern and apply the difference
Jewish people have every right to speak out when offended (a right we all enjoy). In doing so, they are often driven by fears grounded in millennia of persecution culminating in the Nazi’s ‘final solution’.
We should never be silent or indifferent in the face of Anti-Semitism. However, I fear that being fast and loose in labelling events and people as ‘Anti-Semitic’ risks undermining the significance of that terrible point in human history, which we must never do.
For the Holocaust stands for far more than the fate, alone, of the Jewish people. It is a potent warning of what horrors lurk within the human psyche and the power of that warning must never lose its place in humanity’s collective memory – for it threatens us all.
BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
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How to find moral clarity in Gaza
Confronted by the horrors of war between Israel and Hamas, one is naturally drawn to those who offer moral certainty.
After all, it is repugnant to the soul to think that there is no sure ground for the revulsion we feel when confronted by the carnage unleashed on October 7th. Yet, to reject the dead hand of moral relativism does not mean that we must uncritically embrace one side or the other as being either wholly vicious or wholly virtuous.
Here, distinctions matter. For example, there is a vital difference between the Jewish people and the Government of Israel. Likewise, the Palestinian people are not defined by Hamas. When free to do so, many Jews and Palestinians are as one in criticising and condemning the actions of those, in power, who claim to be acting in their name. So, in our search for ethical clarity, we need tools to produce certainty while allowing us to discern relevant distinctions.
By way of background, I should mention that I have been teaching military ethics, both at home and abroad, for more than three decades. In that time, I have typically dealt with what occurs at the ‘pointy end’ of warfighting – with people of all ranks and many cultures. This has included sitting with generals, most of them active operational commanders, from twenty-five nations, as we have discussed some of the most challenging issues ever to be encountered by those who serve in the profession of arms. In the course of my work in this area, we have naturally focused on the requirements of Humanitarian Law and Just War Theory. Those requirements are routinely quoted at times such as these. However, I think that there are even more fundamental principles that can serve us well – whether military or civilian – as we seek to establish firm ground on which to stand.
The first and most fundamental of these principles is that of ‘respect for persons’. This principle requires us to recognise the intrinsic dignity of every person – irrespective of their culture, gender, sex, religion, etc. As such, no person or group can be used merely as a means to some other end. Thus, the prohibition against slavery. No person or group can be deemed ‘less than fully human’ – even those who engage in unspeakably wicked deeds. The torturer or genocidal murderer might forfeit their lives under some systems of justice – but never their intrinsic dignity. That is why we insist on minimum standards of care for prisoners of war – and even war criminals awaiting their fate. Those who deny others intrinsic dignity open the gates to the hells of torture, genocide and the like.
The second principle is captured in an aphorism derived from the Canadian philosopher, Michael Ignatieff. Ignatieff argues that the difference between a ‘warrior’ and a ‘barbarian’ is ‘ethical restraint’. The idea is reflected in principles like those of ‘proportionality’ (minimum force required) and ‘discrimination’ (only legitimate targets) that are a core part of military ethics. However, I think that Ignatieff takes us somewhat deeper. His concept of ethical restraint – as the basis for distinguishing between ‘warriors’ and ‘barbarians’ – asks us not only to consider actions but also intent.
For example, to mount an attack of the kind launched by Hamas on October 7th – with the clear intention of massacring and mutilating innocent civilians – is to be distinguished from military action that tries, with utmost sincerity, to limit the harm caused to non-combatants. Hamas knows that Israel will always prevail in a direct contest of arms. However, following the logic of ‘asymmetric warfare’ it also knows that if it can goad Israel into fighting a ground war in areas heavily populated by civilians then the latter’s strategic strength can be broken in line with a loss of moral authority at home and abroad.
But how do you retain the status of a ‘warrior’ against an opponent who is deliberate in their use of the tactics of the ‘barbarian’ – and whose success absolutely depends on the wounding and death of the innocent?
This brings me to a third principle – familiar the world over. Expressed by the Chinese philosopher, Confucius, in the form, “Do not do to others what you would not have done to yourself”, the same principle (or a version of it) can be found in Jewish writings: “What is hateful to you, do not do to your fellow-man. This is the entire Law, all the rest is commentary” (Talmud, Shabbat 3id – 16th Century BCE). The same sentiment can be found expressed in the Hadith – the sayings and deeds of the Prophet Muhammad who is recorded as having said, “Not one of you truly believes until you wish for others that which you wish for yourself.” In a further formulation of the same basic principle, the Prophet is also recorded as having said, “Do unto all men as you would wish to have done unto you; and reject for others what you would reject for yourself.” Such precepts reflect the essence of the ‘Golden Rule’.
What then might be the implications for the current conflict if this widely recognised principle was given practical effect? Even the most savage Hamas terrorist, with an abiding hatred of the Jewish people, will refuse to countenance that a child of his be raped and murdered in pursuit of his cause. Nor would the most zealous defender of Israel allow the bombing of a Jewish hospital – even if a Hamas command centre is located beneath the structure. One hopes that both would refuse to do to others what they would not have done to their own. In short, the exercise of moral imagination (in which you stand in the others’ shoes) as required by the application of the Golden Rule, should produce just the kind of ethical restraint that Ignatieff calls for.
So, why the carnage?
One explanation lies in the violation of the first principle outlined above. Antisemitism of the kind written into the core ideology of Hamas is fueled by an ancient denial of the full and equal humanity of the Jewish people. It is the same denial that made the Holocaust possible – with Nazi propaganda deliberately dehumanising the Jews by comparing them to vermin. Extermination was the logical next step once the vicious premise had taken root. And that is why it chills one to the bone to hear the Israeli Defence Minister, Yoav Gallant, say that in the latest conflict, “We are fighting against human animals”. Israel is the one nation on earth where we might have hoped such words never to be uttered.
If one seeks moral clarity, it will not be found in a flag around which one can rally. It will not be found in ties of blood or history alone. It lies in the conscious application of principle – without fear or favour, beyond the ties of kinship.
This is not to say that one must set aside emotion. It is proper to grieve for family and friends and those closest to you in belief and culture. But sympathy, grief, anger and a lust for revenge are not the ground on which judgement must rest.
An edited version of this article was originally published in the Australian Financial Review.
Image: Justin Lane / AAP Photo
BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
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Israel or Palestine: Do you have to pick a side?
We are inclined to pick a side in complex conflicts, but doing so can diminish our ethical point of view.
In the early hours of 7 October 2023, Hamas launched a barrage of rockets from Gaza into Israel while armed terrorists crossed the border and began a rampage of death and destruction targeting civilians, including children. In the days that followed, Israeli forces retaliated by blockading Gaza, cutting off food, electricity and water supplies, and began bombarding the densely populated city, killing thousands of Palestinian civilians, including children.
When our news screens are filled with footage of such horrors, our moral minds cry out for justice. But justice for whom?
One of the quirks of our moral minds is that we tend to see the world in terms of black and white or good and evil. If we hear about a heinous or unjust act, our sympathies go out to the victims while outrage inspires us to want the perpetrators to be punished. This sorts the world into two categories: the wronged, who deserve sympathy and protection, and the wrongdoers, who are morally diminished or even dehumanised.
Another quirk of our moral minds is that we struggle with ambivalence, which is the ability to see something as being both good and bad at the same time. Once someone – or a group – are painted as the wronged, it’s difficult to also perceive them simultaneously as being wrongdoers in some other capacity. Attempting to do so creates an uncomfortable state of dissonance, and the easiest way to resolve it is to dismiss the troubling thought and collapse things back into black and white.
On top of this we have our personal connections and affiliations, or a sense of shared identity that can cause us to feel solidarity with one side rather than the other. This in-group solidarity is then reinforced through shared expressions of grief and outrage. It is also policed, with any signs of sympathy for the “other side” drawing stiff rebuke.
This is all natural. It’s how our moral minds are wired. So, it’s no surprise that in the case of the Israel-Palestine conflict, many people have already picked a side. But just because it’s a natural inclination doesn’t mean it’s always a healthy one.
Picking a side can shrink our view, making us see the world through that side’s ethical lens and dismissing other possibly valid perspectives.
This is particularly apparent when we’re faced with gaps in the information we receive – as we often are during times of conflict. We tend to fill ambiguity with our own biases, and we seek out information to reinforce our view while discounting evidence to the contrary.
Picking sides can also prevent us from seeing the bigger ethical picture. And in the case of the conflict between Israel and Palestine, the bigger picture is a long history laced with ethical complexities.
However, there is another way. It requires us to acknowledge, but not necessarily follow, our moral intuitions, and instead step back to take a more universal ethical point of view. This is not the same as a neutrality that is indifferent to the claims of either side or to questions of right and wrong. It is taking the side of principle, which is a basis by which we can judge all parties.
Justice for all
Most ethical frameworks offered by philosophers are universalist, in the sense that they apply equally to all morally worthwhile individuals in similar situations. So, if you believe that it’s wrong to kill a particular individual because they’re an innocent civilian, then you should also believe that it’s wrong to kill any individual who is an innocent civilian.
You might justify that in consequentialist terms, such as by arguing that killing innocent civilians causes undue and irrevocable harm, and that the world is a better place when civilians are protected from such harm. You could equally justify it using a rights-based ethics, such as by arguing that all people have a fundamental right to life and safety.
While philosophers have a variety of views on which specific ethical framework or universal principles we ought to adopt, there are some principles that are widely accepted, with many being coded into the Universal Declaration of Human Rights. These include things like a right to life, liberty and security of person, a right to freedom of movement within the borders of one’s state, and that people shall not be arbitrarily deprived of property, as well as a right to the free expression of one’s religion.
The virtue of taking such a principled approach is that is gives us a bedrock upon which we can base our judgements of any action, agent or government. It promotes a sympathetic stance towards all suffering, and aims us towards justice for all, without shying away from condemning that which is harmful or unjust.
It might challenge our partisan feelings that favour the interests of one side over the other, but it urges us to condemn wrongdoing on any side, such attacks targeting civilians or waging war without ethical constraint.
A principled perspective also enables us to navigate complex ethical issues, such as saying that the Israeli occupation of Palestinian land might be unjust, but that it shouldn’t justify Hamas attacking civilians. Or that Hamas’s attacking civilians is clearly morally repugnant, but that shouldn’t justify the collective punishment of Gazans by Israel. And it can allow us to assert that Israel might have a right to defend its territory and citizens from attack, but it – indeed, all parties – must adhere to just war principles, such as proportionality and distinguishing between enemy combatants and civilians. And it ought to reinforce our commitment to seeing a lasting peace in the region, which will inevitably require some compromises on both sides.
Of course, even if everyone agreed on the same set of principles, there will still be substantial differences in interpretation or points of view. A principled stance must also acknowledge that there are fundamental incompatibilities between the interests and demands of both sides that no single ethical framework will be able to resolve without some kind of compromise. For example, when both sides claim certain sites as sacred, and demand exclusivity, there is no way to resolve that without compromise that will be deemed unacceptable to at least one side. However, such uncertainties and complexities don’t undermine the fact that the same universal principles ought to apply to all people involved.
Choosing to side with ethical principle rather than one side or the other is not without its challenges. It forces us to push back on some of our deep moral intuitions and sit with ambivalence and ambiguity. We might be admonished by both sides in the conflict for not backing all their claims, or called a traitor for criticising them. However, the strength is that we can respond to each of these challenges by resorting to the universal principles, compassion and desire for justice that underpins our views on both sides of the conflict.
While the internet and media landscape seem to urge us to take sides in any conflict, it is entirely possible – and often wise – to step back and apply a broader set of principles rather than fall in with a particular partisan perspective. Adopting such a principled stance doesn’t require that you have all the solutions to the conflict, it is sufficient that you have good reason to wish for a just and peaceful solution for all involved.
Image: AAP Photo / Erik S. Lesser
BY The Ethics Centre
The Ethics Centre is a not-for-profit organisation developing innovative programs, services and experiences, designed to bring ethics to the centre of professional and personal life.
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We are the Voice
We are the voice! No monarch, no prime minister, no politician can decide how our democracy works. Only we, the people, voting as a whole, can resolve fundamental questions of how we will be governed – and by whom.
And so it has come to us to decide if and how to correct an historic injustice. First perpetrated by British colonists, through the doctrine of ‘terra nullius’ and then compounded by those who drafted the now repealed Section 127 of our nation’s most sacred political document, the Australian Constitution, our ‘original sin’ was to deny the prior existence of Indigenous peoples occupying, for millennia, the territories we now call Australia.
With mixed motivations – some virtuous and some vicious – the colonists sought to silence those whose lands they occupied. Guns, germs and steel – all did their work aided by policies of cultural suppression and assimilation. Yet, while sometimes just a whisper, at other times a mighty roar, the voices of our First Peoples have continued to echo across the lands and waters that make up our modern nation.
The descendants of our First Peoples have now asked us to repair the jagged rip in the fabric of our shared history. Their request is that this be done through the one means directly controlled by Australia’s citizens – an amendment to our Constitution. Their request is that this act of constitutional recognition be in the form of listening. They merely wish to be heard in relation to laws that directly affect their lives. That is all. No right of veto. No right to decide. Not even a right to determine how their voice is to be heard – for that is a matter reserved to Federal Parliament. Just a right to be recognised and heard as a distinct voice, amongst the many others, enshrined in our Constitution.
The debate about how to respond to this request has been intense – occasionally rancorous, confusing and ill-informed. So, here are some of the most important questions to have emerged during the course of debate:
Is the proposal to create the Voice racist?
No. The Voice is intended to recognise First Peoples based on their heritage not their race. As a whole, Aboriginal and Torres Strait Islanders carry within their veins the blood of many races. Some of the staunchest opponents of the voice acknowledge this as a personal truth. The proposed constitutional recognition does not privilege race, it merely recognises people based on their descent from those who held original sovereignty over the lands and waters that, collectively, make up Australia.
Is it not just as wrong to recognise descent as it is race?
Not necessarily so. The Act that establishes the Australian Constitution already applies this principle in Section 2 which reads:
The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.
It is the principle of ‘descent’ that made the late Queen Elizabeth our monarch – as it makes Charles our King – as will it make his son and his son rule over us for as long as we remain a constitutional monarchy.
Aren’t Aboriginal and Torres Strait Islanders divided on this question?
Yes. Some, like critics, such as those amongst the Blak Sovereign movement, demand much more. Others fear that adding a new voice to our Constitution will perpetuate division between the descendants of the First Peoples and those without those ancestral connections. Even so, it is estimated that around 80% of First Nations people support the proposal to recognise them in the Constitution through the establishment of an enshrined Voice to parliament and Government.
However, we should no more expect unanimity amongst our First Peoples than we do amongst any other group. Indigenous people are as divergent in their political opinions as is any other group of Australians.
Besides, if you read the minutes of the earliest constitutional conventions it soon becomes evident that virtually every clause in the current Constitution has been the subject of fierce debate and heated controversies. So, disagreement about potential clauses in our Constitution is nothing new. It is the ‘bread and butter’ of constitutional development and reform.
Is there any guarantee that a Voice will rapidly improve the lives of First Nations people?
A ‘yes’ vote will not immediately solve the problems of post-colonial poverty and disadvantage that blights the lives of so many descendants of our First Peoples. Nor will every grievance be reconciled. But things will be better than before. There will be reasons to hope that progress is possible. Also, it’s pretty clear that what we have been trying up until now has not been working.
What if we change our mind about the need for a Voice?
If at some time in the future the job of listening is done and reconciliation is practically complete, then we can always undo what I hope we will do, together, on October 14th. That’s the most important fact about our Constitution. Nothing is set in stone. Everything can be remade in whatever form the citizens of Australia prefer, from time to time. If something does not work, we can just change it.
Isn’t it undemocratic to confer rights on some citizens that are not enjoyed by others?
Yes, but that is already how our Constitution operates. Australian citizens living in the NT and ACT only have four Senators representing their interests (2 each). Tasmanians have 12 Senators – despite having a population smaller than that of the combined territories. We do not hear too many protests about the ‘undemocratic’ nature of this arrangement.
However, what exactly is the ‘right’ being accorded to First Peoples? And is it a right denied to any others citizen? In fact, the proposed amendment merely confers a right to make representations – and nothing more – which is the same right enjoyed by any Australian citizen whether making representations as an individual, as a member of community defined by ethnicity, faith, location, etc.
How can we vote on constitutional change without first having all of the details about how it will work?
The Australian Constitution contains little detail about how the powers of the Australian Parliament and Government are to be exercised. The Constitution merely lists, in general terms, the various ‘heads of power’ (e.g. see Section 52) – and then leave the rest to parliament and the government to decide the detail. Exactly the same approach is being taken with the proposed Voice. If ‘certainty’ was a precondition for voting in favour of the Constitution, as originally drafted and proposed, then it would never have been passed. Why do we require certainty in this matter alone?
I will be voting ‘yes’ in the referendum. I will do so because I want us to fill a gaping hole in our Constitution. Those who drafted the original document it did a pretty good job. But they left out a crucial ingredient – and we are all poorer for that mistake. The Australian Constitution brought into existence a new nation by preserving the Colonial States in a federation. Even New Zealand was included! But they left out the oldest parts of our nation – the multiple sovereign Indigenous states that existed prior to colonisation. No smaller than places like Monaco, Lichtenstein and San Moreno, our pre-colonial states had well-defined borders, enforceable laws, governance structures and so on.
Like a car without a boot or, a birthday cake without candles or, a paragraph without punctuation, our Constitution works well enough. But it is not complete. It is time that this error was corrected by according our First Peoples a modest but honoured place in our Constitution.
I sincerely believe that the creation of the Voice will benefit the whole nation – not just its First Peoples. It will be a bridge that connects the ancient voice of our country with the modern. It will enable crossings in both directions; making us, as a people, both distinctive and whole.
We are the voice. We need utter just one word to create a new reality… ‘yes’.
For everything you need to know about the Voice to Parliament visit here.
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BY Simon Longstaff
After studying law in Sydney and teaching in Tasmania, Simon pursued postgraduate studies in philosophy as a Member of Magdalene College, Cambridge. In 1991, Simon commenced his work as the first Executive Director of The Ethics Centre. In 2013, he was made an officer of the Order of Australia (AO) for “distinguished service to the community through the promotion of ethical standards in governance and business, to improving corporate responsibility, and to philosophy.”
Enough and as good left: Aged care, intergenerational justice and the social contract
Any fair society should ensure that everyone has dignity in old age. This isn’t some utopian aspiration. It is an ethical minimum required for us not collectively to hang our heads in shame.
But it isn’t easy and it certainly isn’t cheap.
The question of how to fund aged care is a can that has repeatedly been kicked down the road, because it will invariably require unpopular decisions. Recently the Albanese government has shown an inclination to tackle the difficult issue. Anika Wells, the aged care minister, has formed a task force to implement recommendations of the Royal Commission into Aged Care Quality and Safety. This includes the prospect of introducing an aged care levy, an option dismissed by the previous government.
On its face, a levy seems sensible. Those people earning money ought to be more able to pay than those who are no longer in work. Even if, in the future, these working people do not need to use public aged care, it acts as an insurance policy for them and, on a more fundamental level, it satisfies our ethical obligations to protect the most vulnerable people in our society. Yet, the idea of a levy isn’t popular, which isn’t surprising: people generally don’t like higher taxes. However, scepticism and even anger over the prospect of a new levy doesn’t necessarily come from a place of selfishness.
A levy would affect young people most and they will likely resent the imposition. We are not talking about solipsistic Millennials and Zoomers wanting to indulge in an orgy of avocado toast and flat whites while their elders live in miserable poverty. The levy would require them to pay for the care of an older generation which by almost all metrics has had it easier. The benchmarks of the ‘Australian dream’ have become unobtainable for many young people, who have had to take on extraordinary debt for tertiary education, pay ever rising rents with homeownership out of reach as house prices skyrocket, delay starting families with childcare and associated costs rising, while inflation continues to erode salaries which have been stagnant for years.
All this raises questions about intergenerational justice and the social contract that binds us all together. The liberal tradition of the social contract, embodied in the work of a range of philosophers from 17th century John Locke to 20th century John Rawls, argues that we all can benefit through mutual cooperation, but we need rules to ensure the benefits and burdens are fairly distributed.
Social contract theory is often presented as a deal between the wealthy and the poor. It is a way of ensuring that the worst off in society are better off than they would otherwise be. To this we might add an intergenerational dimension. This makes intuitive sense; many would say that there is an obligation to ensure that each successive generation is better off than the one before or at least enjoys the same standard of living.
Locke’s theory of property helps to flesh out this intuition. On what grounds can we justify taking something out of the commons and saying “I own this”? For Locke two things need to happen:
- You have to mix your labour with something and
- You have to ensure that there is “enough and as good left”.
It is this second condition, which another 20th century philosopher, Robert Nozick called the ‘Lockean Proviso’ that is relevant here. It exists because if the starting point of property is that everything is owned in common, then private property becomes objectionable if it makes other people worse off than they were before. Locke gives the example of filling a bottle of water from a river. The water becomes yours because you’ve mixed your labour with it in the act of filling, but the river remains for anyone else who might wish to do the same. No one’s opportunities are diminished by your appropriation.
This Lockean Proviso connects to the social contract in a direct way. The terms of agreement would have to be such that each generation must leave ‘enough and as good’ for the next. If society does not provide the same set of opportunities, or better, for each generation then something has gone wrong with the distribution of benefits and burdens.
Young people may be able to generate income from work, but they are not the people with the most resources in society. Wealth is increasingly the domain of older people.
You might say “it always has been” – people who have spent their lives working are simply more likely to have more assets than those at the start of their careers.
Yet, if you look at important landmarks in the distribution of wealth, we can see the Lockean Proviso being eroded. In Australia, the proportion of wealth owned by Millennials and Zoomers is significantly smaller than that owned by Baby Boomer and Generation X at the same age. According to the Grattan Institute, the wealth of Australian households under the age of 35 has been stagnant since 2004, while the wealth of older households has grown by 50% in the same time period. This divergence has been exacerbated by generous tax concessions, so that during a period of major wealth accumulation the average income tax paid by over-65s barely changed and the number of older households paying income tax was halved. It is as if a dam has been built on Locke’s common river that provides no benefits for those who live downstream.
With this background, when it comes to aged care, young people may reasonably ask why they ought to carry the burden of paying. Surely, given the intergenerational distribution of opportunity and its fruits, it is fairer to make those who have benefitted most pay more? If the prevailing trend continues and the younger generation is increasingly forced to carry the burdens of social cooperation, then we can expect that more young people will begin to ask why they should continue to cooperate.
This need not be a battle cry to intergenerational warfare or collapse of the social contract. To satisfy the Lockean Proviso, asset-based wealth should be as open to any ‘levy’ as labour-based income.
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BY Dr. Gwilym David Blunt
Dr. Gwilym David Blunt is a Fellow of the Ethics Centre, Lecturer in International Relations at the University of Sydney, and Senior Research Fellow of the Centre for International Policy Studies. He has held appointments at the University of Cambridge and City, University of London. His research focuses on theories of justice, global inequality, and ethics in a non-ideal world.
You’re the Voice: It’s our responsibility to vote wisely
The Voice referendum is a high stakes decision that could affect many thousands of lives, and that means we have an ethical responsibility to choose how we vote carefully.
Not all decisions are created equal. Some are trivial in their consequences, like whether you choose the chocolate or strawberry ice cream for dessert. Some have higher stakes, like whether you decide to prioritise your career over travelling the world. Yet, these decisions still only affect how you live and are unlikely to impact anyone else.
You can make these decisions in a considered or a flippant way. Or you can choose to not make them at all (although doing so is still making a choice, of sorts). With low stakes personal decisions, you don’t even need to have a good reason for choosing what you do. The only person to whom you owe a justification is yourself – and you can always choose to free yourself of that burden.
But there are other kinds of decisions, ones that impact not just us but other people too. Decisions like these demand more from us and we cannot be so flippant with them. In these cases, we have a greater ethical responsibility to come to a more considered position, to weigh up the options more carefully, and be ready to justify our decision with good reasons.
This is the type of decision are we making when it comes to the Voice to Parliament referendum.
The stakes
In the case of the Aboriginal and Torres Strait Islander Voice, the stakes are whether Indigenous peoples are afforded constitutional protection for a consultatory body that will advise government on legislation affecting their communities – a body that cannot be legislated away with a change of government.
Leading Indigenous figures representing peoples from across Australia and the Torres Strait have asked the Australian people to make the constitutional change because they believe such a consultatory body will have a significant impact on the wellbeing of their peoples and will help correct over two centuries of political disempowerment and discrimination.
Be a good citizen
So, you have a decision to make, one that will likely have a significant impact on a vulnerable population. That places an ethical responsibility on each registered voter to take the decision seriously. This means not treating it flippantly and having a principled reason for voting, regardless of which way you vote. This is what it means to be a “good citizen”.
It’s easy to think of citizenship as simply affording us rights, such a right to have a say in how we’re governed or a right to be treated fairly under the law. However, citizenship also bestows upon us responsibilities, like voting in elections and serving on a jury if called.
But these are just the minimal responsibilities involved in citizenship. We need to do more to be a “good citizen”, including keeping ourselves engaged in issues of public significance and maintaining a basic level of political literacy. A good citizen also doesn’t just grumble about the state of society, they act to make it better. Finally, a good citizen sees themselves as members of an interconnected society, and is willing to make sacrifices or compromise for the common good. So, a good citizen will see the Voice referendum as an opportunity to exercise their responsibilities and engage with the issue actively to make an informed decision.
Be informed
The good news is that there is an abundance of information readily available for each of us to come to a principled decision. However, there is also a wealth of misinformation and disinformation floating around as well. Some of this is shared due to genuine confusion and some is spread by bad faith actors who have their own motivations for attempting to sway votes.
Explore what you really think
This is why it’s important to look at who is speaking and understand their motivations, which might not always be reflected in their arguments. Many people are motivated to vote one way or the other simply because that’s how their perceived political allies are voting, or they might be swayed by unconscious biases and use plausible sounding arguments as post-hoc rationalisations for how they feel deep down.
You can tell that someone is pushing post-hoc rationalisations when you successfully challenge their argument, such as by showing they have been duped by misinformation, but they still don’t change their mind. In this case, simply throwing more facts at them is unlikely to sway them.
A more successful approach is to be sceptical that the first reasons they give are the true motivations for their views. Instead, ask more questions about why they believe what they do and what they’re concerned will happen if the vote doesn’t go their way. Ask questions about how they can be confident their facts are true or what it would take to change their mind.
Rather than positioning yourself as an opponent, try taking the stance as a fellow traveller trying to get to the bottom of the matter. If you’re able to show respect, build trust and lower defensiveness, you’ll have a better chance of opening their mind to alternative perspectives – although it’s also crucial to remain open to alternate perspectives yourself.
There is no right answer
This is because there is no one “right answer” to the referendum question. Reasonable people can disagree on whether a Voice to Parliament is the best mechanism to promote the welfare and representation of Indigenous peoples, or whether a Voice ought to be enshrined in the constitution. When discussing the issue with others, it’s easy to assume that people who disagree with us must harbour some problematic views or that they are simply misguided. Resist that urge and ask questions that aim to tease out good reasons for or against the Voice.
The stakes involved in the Voice referendum mean that we should all take our responsibility to vote in a considered way seriously, and we should be mindful of how we make our decision. Even though there are many pressing issues facing the Australian public, from the cost of living through to climate change, that doesn’t mean we can’t also engage with the longstanding issue of Indigenous disadvantage, especially because there’s often not much we can do about many big issues but we’ve been explicitly invited to have a say on the Voice.
For everything you need to know about the Voice to Parliament visit here.
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Intimate relationships matter: The need for a fairer family migration system in Australia
A liberal society like Australia should recognise that many intimate relationships matter, and in its approach to immigration the federal government should try as much as possible not to prioritise some relationships over others — unless it has a very good rationale for doing so.
A recent report by the Scanlon Foundation has shed some important light on how the current family migration scheme in Australia is failing foreign-born citizens, permanent residents, and their adult parents who want to join them in Australia.
According to the report, there are almost 140,000 Australian residents waiting between 12 and 40 years to be permanently reunited with their parents. The best route is to fork over $48,365 per parent. This contributory visa currently has an expected processing period of 12 years. The cheaper, non-contributory version of this visa costs $4,990 per parent and the application may take 29 years to process.
Since the Parkinson review into Australia’s migration system was established in September 2022, much of the public commentary has focused on the unfairness of leaving adult citizens and their parents in limbo. The expert panel itself puts it bluntly: “Providing an opportunity for people to apply for a visa that will probably never come seems both cruel and unnecessary.”
There is no doubt that the government urgently needs to reform its approach to migration, and visas need to be processed within a reasonable time-frame so that prospective immigrants can move on with their lives. There are, however, two other unfair elements baked into the Australian family migration system that also need addressing.
First, there is the cost of the contributory visas. A visa of almost $50,000 only allows affluent foreign-born citizens to bring their parents to Australia. But if this visa is meant to promote the interest we all have in enjoying territorially located intimate relationships in an on-going fashion, then it is grossly unjust that the wealthy are given a much better shot at having that interest protected.
The second unfairness is perhaps even more under-appreciated. Why prioritise parents as opposed to other adults that citizens and permanent residents might care deeply about? Whereas some are no doubt very close to their parents, others are very close to an uncle, an aunt, or a third-degree cousin. Whereas some individuals long to spend more quality time with a parent, others would really like to live closer to their best friend.
This point becomes clearer when we recognise that sometimes friends are much more emotionally dependent on one another than immediate family members. A citizen who would genuinely lead a much better life if her best friend was allowed to move to Australia then lacks access to a visa that allows a fellow citizen to bring an adult parent into the country, irrespective of how emotionally close they are.
My point is not that the government should assess the level of intimacy between an adult citizen or permanent resident and a parent.
As a liberal society, we need to respect people’s right to privacy, and be extremely careful not to give bureaucrats power to pass judgements about people’s lives in ways that are prone to be informed by sexist, racist, and classist biases.
My point is only that, in a liberal society like Australia, many intimate relationships matter, and the government should try as much as possible not to prioritise some relationships over others unless it has a very good rationale for doing so. Ultimately it was this important requirement that saw many commentators object to Victorian premier Dan Andrews’s exclusion of friends from the remit of the COVID bubble in 2020, and why at some point the state of Victoria pivoted to allowing friends to visit each other during lockdown.
A fair alternative to an unfair immigration system?
But short of completely opening our international borders, is there a solution available to the Australian government? As I see it, the federal government can have a broader intimate relationship visa that is available to all citizens and permanent residents at a reasonable fee. Because the number of interested parties will be very high, the government can then combine that visa with a lottery scheme that gives every adult citizen and permanent resident an equal chance to bring someone they care deeply about to Australia.
In response to suggestions that a lottery scheme should be taken seriously, the author of the Scanlon report writes:
“Just like the faint hope that visa processing times will be faster than anticipated, the slim chance of winning a spot in the lottery will leave families banking on dreams, rather than adjusting to the realities of their situation and fully settling in Australia.”
As someone who has parents overseas, I don’t see why this would leave me “banking on dreams”. We all understand how lotteries work, and we all understand that when everyone has an equal interest in accessing a good or opportunity — in this case, reunification with a loved one — but that good or opportunity cannot be provided to everyone, a lottery may be the only fair way to go about it.
Australians have no appetite for open borders, so we need to come up with a fair way to run our migration schemes. In a world full of refugees whose lives are at risk, it is hard to show that an injustice has taken place when adult citizens are prevented from bringing a parent to Australia. At the same time, if some parents will be allowed to join their adult children in Australia on a permanent basis, we better have a fair system that gives all citizens and permanent residents an equal chance to reunite with someone they care deeply about.
This article was originally published by ABC Religion & Ethics.
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BY Dr Luara Ferracioli
Luara Ferracioli is Associate Professor in Political Philosophy at the University of Sydney and ARC DECRA fellow. She was awarded her PhD from the Australian National University in 2013, and has held appointments at the University of Oxford, Princeton University, and the University of Amsterdam. Her first book Liberal Self-Determination in a World of Migration was published in 2022 with Oxford University Press, and her new book Parenting and the Goods of Childhood is forthcoming (with Oxford University Press).
Big Thinker: Judith Jarvis Thomson
Judith Jarvis Thomson (1929-2020) is one of the most influential ethicists and metaphysicians of the 20th century. She’s known for changing the conversation around abortion, as well as modernising what we now know as the trolley problem.
Thomson was born in New York City on October 4th, 1929. Her mother was Catholic of Czech heritage and her father was Jewish, who both met at a socialist summer camp. While her parents were religious, they didn’t impose their beliefs on her.
At the age of 14, Thomson converted to Judaism, after her mother died and her father remarried a Jewish woman two years later. As an adult, she wasn’t particularly religious but she did describe herself publicly as “feel[ing] concern for Israel and for the future of the Jewish people.”
In 1950, Thomson graduated from Barnard College with a Bachelor of Arts (BA), majoring in philosophy, and then received a second BA in philosophy from Cambridge University in England in 1952. She then went on to receive her Masters in philosophy from Cambridge in 1956 and her PhD in philosophy from Columbia University in New York in 1959.
Violinists, trolleys and philosophical work
Even though she had received her PhD from Columbia, the philosophy department wouldn’t keep her as a professor as they didn’t hire women. In 1962, she began working as an assistant professor at Barnard college, though she later moved to Boston University and then MIT with her husband, James Thomson, for the majority of her career.
Thomson is most famous for her thought experiments, especially the violinist case and the trolley problem. In 1971, Thomson published her book A Defense of Abortion, which presented a new kind of argument for why abortions are permissible during a time of heightened debate in the US as a result of the second wave feminist movement. Arguments that defended a woman’s right to an abortion circulated feminist publications and eventually led to the Supreme Court ruling in favour of Roe v. Wade (1973).
“Opponents of abortion commonly spend most of their time establishing that the foetus is a person, and hardly any time explaining the step from there to the impermissibility of abortion.” – Judith Jarvis Thomson
The famous violinist case asks us to imagine if it is permissible to “unplug” ourselves from a famous violinist, even if it is only for nine months and being plugged in is the only thing keeping them alive. As Thomas Nagel said, “she expresses very clearly the essentially negative character of the right to life, which is that it’s a right not to be killed unjustly, and not a right to be provided with everything necessary for life.” To this day, the violinist case is taught in classrooms and recognised as one of the most influential thought experiments arguing for the permissibility of abortion.
Thomson is famous for another famous thought experiment, the trolley problem. In her 1976 paper “Killing, Letting Die and the Trolley Problem,” Judith Jarvis Thomson articulates a famous thought experiment, first imagined by Philippa Foot, that encourages us to think about the moral relevance of killing people, as opposed to letting people die by doing nothing to save them.
In the trolley problem thought experiment, a runaway trolley will kill five innocent people unless someone pulls a lever. If the lever is pulled, the trolley will divert onto a different track and only one person will die. As an extension to Foot’s argument, Thomson asks us to think if there is something different about pushing a large man off a bridge, thereby killing him, to prevent five people from dying from the runaway trolley. Why does it feel different to pull a lever rather than push a person? Both have the same potential outcomes and distinguish between killing a person and letting a person die.
In the end, what Thomson finds is that oftentimes, the action as well as the outcome are morally relevant in our decision making process.
Legacy
Thomson’s extensive philosophical career hasn’t gone unnoticed. In 2012, she was awarded the American Philosophical Association’s prestigious Quinn Prize for her “service to philosophy and philosophers.” In 2015, she was awarded an honorary doctorate by the University of Cambridge, and then in 2016 she was awarded another honorary doctorate from Harvard.
Thomson continues to inspire women in philosophy. As one of her colleagues, Sally Haslanger, says: “she entered the field when only a tiny number of women even considered pursuing a career in philosophy and proved beyond doubt that a woman could meet the highest standards of philosophical excellence … She is the atomic ice-breaker for women in philosophy.”
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If politicians can’t call out corruption, the virus has infected the entire body politic
Nothing can or should diminish the good done by Gladys Berejiklian. And nothing can or should diminish the bad. One does not cancel the other. Both are true. Both should be acknowledged for what they are.
Yet, in the wake of Independent Commission Against Corruption’s finding that the former premier engaged in serious corrupt conduct, her political opponent, Premier Chris Minns, has refused to condemn the conduct that gave rise to this finding. Other politicians have gone further, putting personal and political allegiance ahead of sound principle to promote a narrative of denial and deflection.
Political corruption is like a highly contagious virus that infects the cells of the brain. It tends to target people who believe their superior virtue makes them immune to its effects. It protects itself from detection by convincing its hosts that they are in perfect ethical health, that the good they do outweighs the harm corruption causes, that noble intentions excuse dishonesty and that corruption only “counts” when it amounts to criminal conduct.
By any measure, Berejiklian was a good premier. Her achievements deserve to be celebrated. I am also certain that she is, at heart, a decent person who sincerely believes she always acted in the best interests of the people of NSW. By such means, corruption remains hidden – perhaps even from the infected person and those who surround them.
In painstaking legal and factual detail, those parts of the ICAC report dealing with Berejiklian reveal a person who sabotaged her own brilliant career, not least by refusing to avail herself of the protective measures built into the NSW Ministerial Code of Conduct. The code deals explicitly with conflicts of interest. In the case of a premier, it requires that a conflict be disclosed to other cabinet ministers so they can determine how best to manage the situation.
The code is designed to protect the public interest. However, it also offers protection to a conflicted minister. Yet, in violation of her duty and contrary to the public interest, Berejiklian chose not to declare her obvious conflict.
At the height of the COVID pandemic, did we excuse a person who, knowing themselves to be infected by the virus, continued to spread the disease because they were “a good person” doing ‘a good job’? Did we turn a blind eye to their disregard for public health standards just because they thought they knew better than anyone else? Did it matter that wilfully exposing others to risk was not a criminal offence? Of course not. They were denounced – not least by the leading politicians of the day.
But in the case of Berejiklian, what we hear in reply is the voice of corruption itself – the desire to excuse, to diminish, to deflect. Those who speak in its name may not even realise they do so. That is how insidious its influence tends to be. Its aim is to normalise deviance, to condition all whom it touches to think the indefensible is a mere trifle.
This is especially dangerous in a democracy. When our political leaders downplay conflicts of interest in the allocation of public resources, they reinforce the public perception that politicians cannot be trusted to use public power and resources solely in the public interest.
Our whole society, our economy, our future rest on the quality of our ethical infrastructure. It is this that builds and sustains trust. It is trust that allows society to be bold enough to take risks in the hope of a better future. We invest billions building physical and technical infrastructure. We invest relatively little in our ethical infrastructure. And so trust is allowed to decay. Nothing good can come of this.
When our ethical foundations are treated as an optional extra to be neglected and left to rot, then we are all the poorer for it.
What Gladys Berejiklian did is now in the past. What worries me is the uneven nature of the present response. Good people can make mistakes. Even the best of us can become the authors of bad deeds. But understanding the reality of human frailty justifies neither equivocation nor denial when the virus of corruption has infected the body politic.
This article was originally published in The Sydney Morning Herald.
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