1. Introduction
The objective of this article is to evaluate whether the distinctive nature of the international law on indigenous peoples reflected in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) can be explained by reference to Joseph Raz’s service conception of authority, and, consequently, to establish a coherent foundation for the exercise of political power by states in relation to indigenous peoples.Footnote 1 This objective may perplex some, as international-law instruments such as the Declaration on Indigenous Peoples are not required to articulate a coherent moral or philosophical argument.Footnote 2 They are the result of deliberation, debate, negotiation, and compromise. Once adopted, however, such instruments provide an under-theorized and inchoate account of the necessary conditions of global justice, and further structure, at least in part, domestic political arguments about the nature of justice. The requirement for a coherent exposition of the theoretical underpinnings of UNDRIP follows the inclusion of a number of provisions that sit uneasily with most contemporary accounts of political authority concerning the recognition of the laws of indigenous peoples; right of self-governance; and principle of free, prior, and informed consent.Footnote 3 Raz’s understanding suggests a different approach to the dominant liberal or social-democratic models (reflected in large part in the Universal Declaration on Human Rights and other international human rights law instruments), one that is more suited to an analysis of the existence and scope of political authority, rather than an analysis of the conditions of, and limits on, state power.
The article proceeds as follows. It first examines arguments that the distinctive elements in the regime on indigenous peoples should be explained by reference to some idea of ‘Indigenous Sovereignty’. The difficulties are threefold: these approaches fail to take into account the extent to which ‘sovereignty’ was constructed in European political thought against the imagined dystopia endured by the indigenous populations of the Americas at the moment of colonization; construct ‘indigenous peoples’ through the act of colonization; and focus on sovereign authority to establish a regime of political justice concerning indigenous peoples. Instead the work draws on the idea of practical authority developed by Raz to develop an analytical framework in which to consider the authority of the state over indigenous peoples. After outlining Raz’s service conception, this article evaluates the way in which the law on indigenous peoples becomes comprehensible in light of the framework. This is not to claim that the service conception provided the conceptual foundations for the UN Declaration on the Rights of Indigenous Peoples, which represents an exercise in practical reasoning by states, indigenous peoples, academics, non-governmental organizations, and other interested parties – only that the distinctive nature of UNDRIP becomes explicable and justifiable by reference to these ideas which then underpin the exercise of politics and accommodation of indigenous peoples in domestic constitutional settings.
2. Political participation, autonomy and self-governance for indigenous peoples
According to the United Nations Permanent Forum on Indigenous Peoples, there are an estimated 370 million indigenous people in 90 states in all parts of the world and on most indicators of well-being they suffer disproportionately compared to non-indigenous peoples. A primary focus of the efforts by indigenous peoples to improve their situation has been the international-law system, which has recently been regarded as more sympathetic to their claims than domestic law. The rele-vant international law can be divided into three:Footnote 4 international human rights law that protects the rights of indigenous peoples to their cultural integrity and to a distinctive way of life;Footnote 5 treaties that specifically address the position of indigenous peoples, notably ILO Convention 169, concerning Indigenous and Tribal Peoples;Footnote 6 and a customary or general international law on indigenous peoples, given form in the UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007.Footnote 7 Reference may also be made to the regional human rights regimes, in particular the African Charter on Human and Peoples RightsFootnote 8 and American Convention on Human RightsFootnote 9 – less so to the European Convention on Human Rights.Footnote 10
In addition to recognizing a number of substantive rights concerning, for example, the control, use and ownership of land,Footnote 11 the UN Declaration on the Rights of Indigenous Peoples affirms that indigenous peoples have the right to the full enjoyment of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights, and international human rights law.Footnote 12 In common with the Universal Declaration, the Declaration on Indigenous Peoples considers that domestic political communities should be ‘democratic’ in nature.Footnote 13 UNDRIP does not, however, apply the democratic procedural model to the relationships between the state and indigenous peoples. The distinctive elements in the UN Declaration on the Rights of Indigenous Peoples are the extensive rights of political participation,Footnote 14 specifically the rights to direct participation in political and constitutional debatesFootnote 15 and to a veto on laws and policies that might have a deleterious impact on the ways of lives of indigenous peoples;Footnote 16 a right of autonomy and self-government,Footnote 17 including a right to territorial autonomy;Footnote 18 and the recognition of the laws, traditions, and customs of indigenous peoples as valid normative systems of ‘law’ (properly so called).Footnote 19 Taken together these rights support the principal objective and purpose of UNDRIP: to establish the necessary conditions to give effect to the right of self-determination for indigenous peoples within the territorial boundaries of the state.Footnote 20
2.1. The concept of ‘indigenous peoples’ in international law
The rights of political participation and self-governance in the UN Declaration on the Rights of Indigenous Peoples are (self-evidently) not available to other groups or to other citizens in the state. Will Kymlicka has observed that the inclusion of extensive rights to autonomy and self-governance in the Declaration on Indigenous Peoples has led a number of minorities to debate whether to adopt the label of indigenous peoples: ‘After all, what homeland minority would not want the same rights – as currently formulated –that are accorded indigenous peoples?’Footnote 21 On this issue, there is no agreed definition of the term ‘indigenous peoples’ in international law, principally as a result of the difficulty in establishing common criteria for the 5,000 distinct indigenous peoples of the world and refusal of indigenous peoples to accept the imposition of any definition by international lawyers. The UN Declaration on the Rights of Indigenous Peoples does not contain a definition, reflecting the complexities of the issue and resistance of representatives of indigenous peoples to such an inclusion. There is no reference to aboriginality,Footnote 22 or to first or prior occupancy, although the preamble observes that indigenous peoples ‘have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources’. An evaluation of UNDRIP and the wider inter-national-law doctrine and literature suggests that the following indicia are relevant in evaluating claims by groups and communities to be ‘indigenous peoples’.Footnote 23 First, prior and continued occupancy of the territory, or claim to dispossessed territory – divided further into arguments around being first; the dispossession of territory through colonization,Footnote 24 or equivalent process; and historical continuity. Second, self-identification as an indigenous people.Footnote 25 Third, cultural difference, often expressed in terms of a relationship with land, which gives expression to the collective identity of the group.Footnote 26 Fourth, the idea that indigenous peoples are somehow in a ‘non-dominant’ position.Footnote 27 Fifth, a communal dimension to the identity of indigenous peoples, as ‘peoples’.Footnote 28 Finally, the existence of indigenous self-governance institutions and regulation of at least some aspects of the social, economic, and political life of the community through indigenous laws, traditions, and customs.Footnote 29
3. ‘Indigenous Sovereignty’
The inclusion of extensive rights to political participation and self-governance in the UN Declaration on the Rights of Indigenous Peoples led a number of liberal democratic states to express concerns about the regime, in particular around the idea of free, prior, and informed consent. Australia concluded it could not accept a right which allowed a particular subgroup of the population to veto the legitimate decisions of a democratic and representative government;Footnote 30 Canada stated the establishment of a veto power over legislative acts for a particular group would be fundamentally incompatible with its parliamentary system;Footnote 31 whilst New Zealand asserted that recognizing indigenous peoples had a right of veto over the democratic legislature would establish different classes of citizenship, providing indigenous peoples with a right others in the state did not have.Footnote 32
An influential academic literature seeks to explain the recognition of extensive international-law rights for indigenous peoples by reference to some idea of Indigenous Sovereignty.Footnote 33 Siegfried Wiessner, for example, refers to ‘Authentic Indigenous Sovereignty’, drawing on concepts used by indigenous peoples themselves.Footnote 34 He understands the idea in terms of creating ‘safe spaces’ for indigenous peoples; providing a right to a distinctive way of life; recognizing the principle of free, prior, and informed consent; establishing a right to self-governance; establishing the right to have treaties and other agreements honoured; and imposing an obligation on the state to introduce positive measures to protect, promote, and revitalize indigenous languages and cultures.Footnote 35 In a subsequent article with Lorie Graham, Wiessner argues that indigenous concepts of sovereignty are not limited solely to Western ideas of ‘original power over people and territory’.Footnote 36 Indigenous Sovereignty is understood in terms of the objective of preserving the ways of lives of indigenous peoples through the maintenance and establishment of indigenous decision-making structures and ‘the recognition of law-making and -applying powers by traditional leaders in their various spheres of authority – peace chiefs, shamans, elders, clan mothers, and so on’.Footnote 37
Federico Lenzerini goes further, arguing that a right to the recognition of Indigenous Sovereignty can be found in customary international law.Footnote 38 It includes the rights to control and ownership of traditional lands; to maintenance of identity and culture; to self-government under customary law; and to effective participation in relevant decision-making processes. Indigenous Sovereignty is ‘parallel’ to the sovereignty of the state,Footnote 39 and ‘is to be exercised within the realm of the supreme sovereignty of the territorial state’. Lenzerini concludes that the exercise of sovereignty by indigenous peoples ‘actually produces the result of shifting some aspects of state sovereignty, providing indigenous peoples with some significant sovereign prerogatives that previously belonged to the state’. Footnote 40
None of the arguments equate Indigenous Sovereignty with state sovereignty, understood as an autonomous system of normative power not subject to the normative power of another sovereign. Indigenous Sovereignty appears to be a synonym for such diverse (albeit related) concepts as cultural integrity, self-governance, or self-determination,Footnote 41 or equivalent political ideas such as the freedom of an indigenous people ‘to choose what their future will be’,Footnote 42 or the international law regime on the rights of indigenous peoples taken as a whole. There are, though, fundamental difficulties in seeking to ground the moral and political claims of indigenous peoples in any idea of ‘sovereignty’ – unless we conclude that Indigenous Sovereignty does not share any family resemblance with state sovereignty, which seems implausible given its etymology. Consider, for example, the argument developed by Patrick Macklem, who has written persuasively on this subject. Macklem argues that the moral claims of indigenous peoples are based on the fact that they were ‘prior sovereigns’,Footnote 43 observing that international law validated the colonization of North America through the recognition of the sovereignty claims of colonial powers and non-recognition of the sovereignty of indigenous populations.Footnote 44 The concept of ‘indigenous peoples’, he contends, is directly related to the historical exclusion of indigenous populations from the distribution of sovereignty initiated by colonization. Macklem's distributional account concludes that the objective of the law on indigenous peoples is to ‘mitigate some of the adverse consequences of how the international legal order continues to validate what were morally suspect coloniza-tion projects by imperial powers’.Footnote 45 The recognition of European nation-states as sovereigns and non-recognition of the sovereignty of indigenous populations result-ed from an application of principles of international law, including the denial of the status of formal sovereign equality to the indigenous populations of the Americas and other places. Macklem argues that the recognition of the rights of indigenous peoples ‘speak[s] to injustices produced by the way in which the international legal order conceives of sovereignty as a legal entitlement that it distributes among collectivities that it recognizes as states’. The international law on indigenous peoples is a recognition of the requirement for states to ‘adopt appropriate domestic measures to vest contemporary claims of sovereign authority with a modicum of norma-tive legitimacy’.Footnote 46 Self-determination for indigenous peoples means autonomy and self-government, not sovereignty and independence.Footnote 47
Macklem's analysis presents important insights for understanding the inter-national law on indigenous peoples: the idea is conceptually related to, if not defined by, the validation of the colonization of the Americas and the object and purpose of the international-law regime on indigenous peoples can (at least in part) be seen in terms of the legitimating of sovereign authority. The implied assumption is that political legitimacy (at least in domestic settings) is justified by reference to the rule of (sovereign) law.Footnote 48 The difficulties are twofold. First, the argument constructs the identity of indigenous peoples through the act of colonization: indigenous peoples do not define themselves; they are defined by their subjugation to the sovereign authority of European powers through colonization. Second, the objective is to legitimize the exercise of political power by states through a partial restoration of sovereignty to indigenous peoples, understood in terms of autonomy and self-governance. A focus on sovereign authority suggests, however, solutions based on the devolution of self-governance rights and that ultimate decision-making power rests with the state, with the sovereign political community offering ‘concessions’, or establishing ‘exceptions’ to the normal functioning of the democratic system, or ‘delegating’ law-making powers to indigenous political communities. It is, at best, an example of the weak form of legal pluralism identified by John Griffiths, whereby the state-law system recognizes the laws of indigenous peoples and allows for different legal regimes to apply to different groups.Footnote 49
4. The problem of sovereign ‘authority’
The argument that the moral and political claims of indigenous peoples should be grounded in a re-evaluation of the meaning and impact of ‘sovereignty’ proves particularly problematic following a rereading of the key texts that developed the idea of sovereign authority (legitimate political power) in Western political thought. The works of Thomas Hobbes and John Locke on the justification for sovereign power within the state (escaping from a ‘state nature’ to a ‘state-of-civilization’) and Emmerich de Vattel on the extension of sovereign authority through ‘colonization’ make clear that the indigenous populations of the Americas were excluded from recognition as ‘sovereigns’ because the idea of sovereignty was developed against their imagined and constructed identities.Footnote 50
The justification for the recognition of a sovereign political community (the basis of the authority of ‘law’) was the need for the establishment of government in the interests of subjects. In the pre-political condition, Freemen (in John Locke's term) inhabited a ‘state nature’ in which they enjoyed certain inherent rights – to life and physical integrity, for example. Individuals accepted that their rational self-interest required the establishment of a political community and transfer of regulatory power to a ‘sovereign’ to establish the conditions of justice. The analytical concept of sovereignty was subsequently relied upon when determining the relationships between European powers, and between European powers and the indigenous populations of the Americas, and elsewhere. Hobbes links the idea of the state of nature directly to the indigenous populations of North America: ‘the savage people in many places of America. . .live at this day in that brutish manner’.Footnote 51 John Locke concurs. Whilst he accepts that ‘the Kings of the Indians in America . . . command absolutely in war[;] in time of Peace they exercise very little Dominion, and have but a very moderate Sovereignty’.Footnote 52
Vattel (focusing on the external aspect of sovereign authority) takes the same approach. A narrative of progress is developed in which the ‘wandering tribes’ possessing the land in common determined to ‘fix themselves somewhere, and appropriate to themselves portions of land, in order . . . to render those lands fertile’. The population, which had previously been scattered, ‘formed themselves into a political society, that country. . .is the settlement of the nation, and it has a peculiar and exclusive right to it’.Footnote 53 Where a nation takes possession of territory that is not owned by another, it acquires sovereignty: ‘The whole space over which a nation extends its government becomes the seal of its jurisdiction, and is called its territory.’Footnote 54 The principle of terra nullius applies also in relation to the extension of territorial sovereignty: ‘[where] a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it’.Footnote 55 Vattel concludes that the ‘unsettled’ lands of the Americas could not be regarded as the ‘true and legal possession’ of the indigenous populations. The people of Europe, ‘too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies’.Footnote 56 He refers to the conquest of the ‘civilized empires of Peru and Mexico’ as a ‘notorious usurpation’; by contrast, the establishment of colonies in North America ‘might[,] within just bounds, be extremely lawful’.Footnote 57
By the end of the nineteenth century, the law of nations (the focus of this article) was resolutely positivist, drawing on the traditions of European political thought to understand the world of law in terms of the ‘sovereign’ will of a political community with the capacity for effective self-government through formal institutions organized in accordance with an autonomous legal system.Footnote 58 Sovereignty was a question of fact, depending on the establishment of a political community in which subjects accepted the authority of a sovereign power that was not subject to the formal authority of any other sovereign power.Footnote 59 Sovereign political communities were distinguished from non-sovereign political communities by the existence of institutions of government and coercive systems for the enforcement of law norms. European political thought proceeded to construct the idea of sovereign authority from a state of nature in which each individual was a judge in their own cause on questions relating to the scope and application of the laws of nature.Footnote 60 The dystopian idea of the ‘state of nature’ was developed in line with the constructed identities of the indigenous populations of the ‘New World’, with John Locke observing: ‘in the beginning all the World was America’.Footnote 61 A concern was the ways in which the state of nature failed to support the necessary conditions to establish European conceptions of the good life, understood in terms of internal and external peace and security, agricultural productivity, economic development and the protection of private property rights. In the state of nature, individuals would – by a decision of a majority – agree to subject themselves to the authority of the sovereign power that would rule through law. Where formal institutions of government were established and the legal order not subject to the authority of another political community, the political society was sovereign.
The failure of European political thought to recognize the indigenous populations of the Americas as sovereigns did not result from an application of an autonomous concept of ‘sovereignty’: the idea of sovereign authority developed in opposition to the constructed identity of indigenous populations. The indigenous populations of North America were not recognized as sovereigns for the very reason that sovereign authority was developed against an imagined dystopian ‘state of nature’ endured by the populations as constructed in relevant European texts. Any argument for a recognition of Indigenous Sovereignty or reallocation of sovereign powers reflects, if only implicitly, an acceptance of the superior character of sovereign political communities. Not only is this morally and politically suspect, it also conflicts with the object and purpose of the international law on indigenous peoples, which is to give effect to the right of indigenous peoples to self-determination. It is difficult, then, to conclude that sovereign authority, Indigenous Sovereignty, or any conception of sovereignty, should have a central place in the discourses and deliberations around indigenous self-determination, political participation, autonomy, or self-governance.Footnote 62 The required conceptual shift concerns the removal of sovereignty from its central and exalted position in discourses around legitimate political power and the examination afresh of the idea of political authority.
5. Raz’s service conception of authority
The dominant understanding in the political theory that underpinned the rule of sovereign law (Hobbes, Locke, Vattel) was that the sovereign state legitimizes its own rule by reference to a mythological social contract in which authority is transferred to the sovereign in the transition from a ‘state of nature’ to a ‘state of government’. The government of the state is then established in accordance with a legal system that establishes the normative position of subjects through directives framed in terms of norms, standards, and principles, and determines the applicability of any exception to a norm and resolves conflicts between legal norms within the system. Following the positivist concept of the rule of sovereign law, a rule is binding because it is a rule of the legal system. The idea that legal norms should be determined by reference to their provenance cannot, however, be explained without reference to some idea of practical authority, which is concerned with the exercise of normative power by one actor, institution, or regime over another. A legal norm might be binding because it is a norm of the legal system, but this cannot explain why the norms of a legal system are binding.
The most influential account of practical authority is provided by Joseph Raz’s service conception, which establishes that an actor or institution has legitimate authority where a subject would better conform to the reasons that already apply to her by following the directives of the actor or institution than by acting independently. The only reasons that an authority may take into account in deter-mining the content of authority directives are those that already apply to subjects (what others reasons could legitimate authorities take into account?), including the requirement for co-operation on a wide range of social, economic, and political issues. Once established, the directives of an authority are binding on those subjects within its jurisdiction.
Raz’s service conception is an ideal-type theory, establishing how authorities are supposed to function. The argument constructs the exercise of authority in relation to subjects capable of autonomous reasoning, i.e. capable of deciding whether it would better to follow the directives of the authority or to act autonomously, and capable of evaluating the justification advanced by the authority, i.e. the claim of the right to rule. The approach can be contrasted with sociological concepts of legitimacy, concerned with the identification of those actors and institutions which are, in fact, recognized as having the right to rule, for whatever reason. On closer inspection, the service conception contains both normative and sociological elements: legitimate authority depends on an actor or institution regulating in accordance with the interests and preferences of subjects (normative), with the evaluation as to whether or not this is the case made by subjects (sociological). The argument applies equally to the scope of authority accepted by subjects. Actors might accept the authority of an institution on certain issues, but not others. Consequently, whilst an institution might be an authority in relation to subject matter ‘X’, it might not be in relation to subject matter ‘Y’.
Raz’s conception of authority relies on four interrelated theses: the dependence thesis, which provides that authority is legitimate where undertaken in accordance with the reasons that already apply to subjects; pre-emption thesis, which provides that the directives of legitimate authorities establish content-independent reasons for action; normal justification thesis, which establishes that the exercise of regulatory power is only legitimate where the authority is better placed than subjects to establish regulatory directives; and independence thesis, which provides that on some issues it will be more important for individuals to decide for themselves than to decide correctly.
First, the dependence thesis. This concludes that the exercise of authority is legitimate where undertaken in accordance with the reasons that already apply to subjects and are relevant in their action in the circumstances covered by the authority directive.Footnote 63 These reasons are dependent reasons. Raz explains that dependent reasons ‘range from the humblest to the sublime, from the need to have some fresh air to the desirability of having a rich and fulfilling life, from concern with one's hairdo to concern for the victims of mass starvation’.Footnote 64 The idea of legitimate authority, he argues, implies the exercise of the regulatory function in accordance with the reasons that already apply to the subjects of directives. This does not require that authority directives should always advance the interests of subjects: a primary function of practical authorities is to identify co-ordination problems and establish norms for social conduct, even where those norms do not reflect the preferences of subjects. The standard example concerns road-traffic laws: it is less important whether we would prefer to drive on the left- or the right-hand side of the road, than that there is a rule on the issue. Nor does the service conception invalidate authority directives that do not reflect dependent reasons: all directives, even mistaken directives, establish content-independent reasons for compliance.Footnote 65
Whilst errors in the identification of the reasons that apply to subjects do not invalidate authority directives, mistakes that authorities make ‘about factors which determine the limits of their jurisdiction render their decisions void’.Footnote 66 The idea of jurisdiction then delimits the scope of legitimate political authority and the ‘boundaries’ of the authority regime: an actor or institution has authority where the subjects of its authority directives would better conform to the reasons that apply to them by following the authority directive on the issue under consideration than by acting independently.Footnote 67 The exercise of legitimate political authority depends (i) on the recognition of an actor or institution or regime as an ‘authority’ with the capacity to determine the normative situation of subjects, and (ii) that the scope of authority extends to the subject matter under consideration. The determination as to whether an actor, institution, or regime is an authority on a particular issue is made by subjects. Raz does not construct a hypothetical third party to determine when a person should be subjected to the authority of another: it is for the putative subjects of an authority regime to decide whether an actor or institution is an authority for them. In Raz’s own words ‘it is one's own judgment which directs one to recognize the authority’.Footnote 68
Second, the pre-emption thesis, which proceeds from the dependence thesis. The authority directive must express a view about what ought to be done and it should be possible for the subject to comply without recourse to the reasons or considerations on which the directive purports to adjudicate. The pre-emption thesis provides that the directives of legitimate authorities establish content-independent reasons for action: they exclude and take the place of the relevant reasons for action that apply to the individual.Footnote 69 My reason for following the directives of the legal system is that I recognize ‘the law’ as an authority, not because I agree with the substantive content of particular law norms. The directives of legitimate authorities establish content-independent reasons for action, or inaction, on the part of the subjects, who are expected to follow the authority directive regardless of their view on the underlying merits.
Third, the normal justification thesis (NJT). Raz argues the normal way to establish a person has authority over another
involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.Footnote 70
The NJT provides that an actor should accept the authority of another where they are more likely to act for the right reasons that apply to them by subjecting themselves to the authority than by acting autonomously. The exercise of authority is not justified because it serves the public interest, only ‘if it is more likely than its subjects to act correctly for the right reasons’.Footnote 71 If an authority directive is to be binding on an individual, it must be justified by considerations that bind them. The need to co-ordinate the actions of the members of a society may be a necessary condition of political legitimacy, but it is not a sufficient condition. The reasons for accepting the authority of another include that the authority is more knowledgeable, that the authority is more likely to make a correct decision, and that accepting the authority of another allows for effective co-ordination.
Samantha Besson observes that before an actor or institution can satisfy the normal justification criterion (NJC), it has to be recognized as an authority that others will regard as such.Footnote 72 Jeremy Waldron concludes that, in addition to the individual application of the NJC, a large number of people must actually accept that an actor or institution satisfies the criterion in cases of co-ordination over matters of common concern.Footnote 73 Raz himself notes that practical authorities ‘need more than the capacity to function well. They need to be made authorities, not necessarily by being appointed to the job, but something like an appointment has to be there’. The position is contrasted with that of theoretical authorities, whose expert knowledge establishes them as an ‘authority’, i.e. a reason for holding certain beliefs and discarding others on those matters by virtue of that knowledge of the subject: ‘Nothing more is needed.’Footnote 74 In the practice of authority, the most plausible account would observe an assertion of authority (in the form of an authority directive) that was accepted and relied on by subjects, rather than the prior recognition by subjects that an actor or institution was better placed and the acceptance of responsibility by the ‘authority’ (although this is also possible). Whatever the scheduling of the assertion and acceptance of authority (which is somewhat chicken-and-egg and not relevant in the case of already existing authorities), the exercise of authority and its jurisdictional boundaries are established in accordance with the normal justification criterion: where subjects are more likely to comply with the reasons that already apply to them on the particular issue under consideration by relying on another actor or institution, then that actor or institution is an authority for them.
The normal justification thesis establishes a significant break with the social-contract tradition that has dominated the discourse around legitimate political power: authority is not established at some hypothetical foundational moment of agreement that binds subsequent generations. The exercise of normative power is legitimate where the authority is more likely than the individual to establish a social norm or convention that regulates the behaviour of the individual and others in accordance with the background reasons that already apply to the subjects of authority directives taken individually. The exercise of practical authority by the state (or any other actor) must be established in relation to each putative subject of the authority regime: ‘For every person the question has to be asked afresh, and for every one it has to be asked in a manner which admits of various qualifications.’Footnote 75 The practical authority of a legal system is established through the acceptance of the system of law as an authority. The authority of ‘the law’ is not evaluated by subjects on a case-by-case basis. Where subjects accept the authority of a legal system, the legal system is an authority for them.Footnote 76
Fourth, the independence thesis. The normal justification thesis has been subject to the criticism that it validates the exercise of authority at the expense of private autonomy. Kenneth Einar Himma concludes that the NJT imposes no limits on the idea of legitimate authority beyond the need to establish correctly the reasons that apply to subjects – a position at odds with many substantive accounts of legitimacy that presume it would be wrong, for example, for the state ‘to prohibit political speech or “French kissing” between consenting adults’.Footnote 77 The criticism is, however, difficult to reconcile with the independence thesis. In The Morality of Freedom, the idea is expressed in terms of the rationality of acting in compliance with authority directives, ‘[s]o long as this is done where improving the outcome is more important than deciding for oneself’.Footnote 78 In later work, Raz elevates the exception into a principle.Footnote 79 Authority is justified when two conditions are met: the subject would better conform to reasons that apply to him anyway if he intends to be guided by the authority's directives than if he does not (the normal justification thesis); and the matters regarding which the first condition is met are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority (the independence condition).Footnote 80 The independence thesis confirms that in many areas it is more important to decide correctly than to decide for oneself (hence the reliance on authorities). But there are other areas where it is more important to decide for oneself than to decide correctly. Raz gives the examples of the need to exercise judgement in order to become self-reliant and the requirement that certain matters are, by the ‘social forms of various cultures’, to be decided by oneself.Footnote 81 In yet other areas, ‘it is an optional good for a person to decide for himself. In such matters consent serves to establish authority’.Footnote 82
Raz notes that the service conception is premised on the idea that it is important that people decide for themselves how to conduct their lives and that in some important areas they should do so free from the commands of others. There are, though, he argues, many issues in the political arena where we have reason to secure a good for ourselves and for others and that this can be ‘best secured by yielding to a coordinating authority’. The fact of reliance poses ‘no threat to the authenticity of one's life, or to one's ability to lead a self-reliant and self-fulfilling life’.Footnote 83 Elsewhere, whilst accepting that the protection of personal autonomy is essential to the promotion of individual well-being in ‘modern pluralistic societies’, Raz argues against the recognition of autonomy as a universal value, concluding that autonomy is not necessarily required for ‘a completely good life’, which is also possible in ‘non-repressive societies’ where the pursuits and options open to people are not subject to individual choice.Footnote 84 There is, then, a question whether the independence thesis can be regarded as integral to the service conception, or whether it is only relevant when applied to modern pluralistic societies. It seems, though, implausible to conclude that some idea of personal autonomy (independence), even if not the extant extensive conception that dominates modern pluralistic societies (in Raz’s expression), is not integral to the idea of the good life in all societies. The issue is not whether the independence thesis is part of the service conception (it is), but the scope of the protected ‘personal’ space accorded by the criterion, which is contested within each social culture – including the cultures of modern pluralistic societies and those of indigenous peoples.
5.1. The nature of legitimate political authority
In outlining a conception of authority that does not necessarily rely on even a minimal understanding of procedural rights, Raz’s thesis has been subject to criticism.Footnote 85 The problem, as David Rondel explains, is that the service conception does not seemingly differentiate between ‘(a) sound political decisions reached democratically, and (b) perfectly identical decisions reached by any other non-democratic procedure’.Footnote 86 Whilst the normal justification thesis does not establish a democratic conception of legitimate political authority, it can be read as requiring the introduction of democratic procedures and mechanisms for the exercise of legitimate political authority for democratic societies – those in which the culture is not sympathetic to any claim to know better on issues of political controversy and subjects are likely to conclude that the only way in which the government can establish the reasons that already apply to them is by engaging with them through democratic procedural mechanisms.Footnote 87 The relevant question is not whether the democratic procedural model establishes the basis for the legitimate exercise of political authority by the state today, but whether one or other concept of democracy defines the idea of legitimate authority for all people, in all places, at all points in time. Raz’s service conception concludes (correctly) that this is not the case.
The normal justification criterion establishes that A has (legitimate) authority over B, if B would better conform to the reasons that (already) apply to B by following the directives of A than by acting independently. The determination as to whether this is (or is not) the case is made by the subjects of, i.e. those targeted by, authority directives. The reasons for subjects accepting the ‘authority’ of an actor or institution will depend in large part on the conceptualization of the idea of authority in the particular community. Citizens in modern pluralistic democracies recognize the importance of political and personal autonomy for the reason that (in Raz’s terms) ‘socialization introduces people . . . to the value of choice, and of self-determination’.Footnote 88 For other political communities different bases for political authority will exist, determined, in part, by the prevailing political culture in the society. Raz’s position is that no particular form of government is required by the normal justification thesis: ‘someone may believe that people, members of a certain group, have a duty, perhaps a religious duty or a duty of loyalty arising from some historical circumstances, to obey some person or institution. In that case the normal justification thesis is easily satisfied’.Footnote 89 The same argument applies to democratic forms of government: ‘Some people believe that one has a duty to obey anyone who is elected by the majority. Again, that is no problem for the service conception.’Footnote 90 Raz accepts that democratic governments have, ‘in many countries, unique claims to enjoy some qualified or limited authority’. The NJT does not, though, establish a democratic conception of legitimacy. Raz is clear on this point (albeit in a footnote): ‘I do not believe that democracy is the only regime that can be legitimate’.Footnote 91 The idea of legitimate authority is a constant over time and place: A has authority over B, if B would better conform to the reasons that already apply to B by following the directives of A than by acting independently. The requirements and conditions for the acceptance of authority by subjects will differ from time to time and place to place, depending on the political culture of the community, and it is not possible to identify universal criteria for the exercise of legitimate authority – a conclusion that allows for the recognition of the authority of indigenous laws and self-governance institutions where the members of the community accept they would better conform to the reasons that already apply to them on a particular issue by following the directives of the indigenous authorities than by acting independently.
5.2. Conflicts of legitimate authorities
The idea of sovereign authority establishes that the legal system of an independent political community with a coercive system of government power legitimates its own rule: the rule of sovereign law. There might be limits on sovereign power (prohibition on torture, for example) or requirements for the way in which power is exercised (democratic proceduralism), but the right of the sovereign to rule is taken for granted. Raz’s service conception addresses the issue from a different perspective, asking whether on a particular issue an actor or institution has authority, i.e. whether the assertion of authority is recognized by subjects. It does not regard the state as the only source of legitimate political authority, or exclude the possibility of other actors or institutions being recognized as authorities in a given social space: legitimate political authority is not defined by any idea of sovereign authority. Nor does the service conception exclude the possibility that an individual can, and will, recognize different institutions and actors as authorities on different issues and on the same issue. Consider, for example, members of indigenous peoples who recognize both the authority of the state and indigenous self-governance systems. Where the members of an indigenous community recognize that the state authorities are better placed to regulate aspects of social, economic, and political life, they accept the state as an authority – on those issues; likewise, where the members of the group recognize that the institutions, laws, traditions, and customs of the community are better placed to regulate them in accordance with the political culture of their society, the indigenous laws and institutions are an authority for the members of the group in question (i.e. the subjects of the indigenous authority regime).
The question then arises how any conflicts between state law and the laws, traditions, and customs of indigenous peoples are to be resolved, and by which actors.Footnote 92 The first possibility would be to allow the subjects of authority directives to resolve the conflict. It is the case that ‘subjects’ can reject the assertion of normative authority by an actor or institution. In these circumstances, the institution or actor is not an authority for the ‘subjects’ of the relevant directives. There is no conflict of laws (or legal systems), for the reason that the regulatory norms of the ‘authority’ are not binding on those targeted by the regulations. The conflict of normative systems is resolved by the non-recognition of one of the competing ‘authorities’ by ‘subjects’. That is not to conclude that the actor or institution is not an authority. The actor, institution, or normative regime may be recognized as an authority by other subjects, but not all those targeted by the authority directive. The state might, for example, be recognized as an authority by a majority of the population, but not by an indigenous people – generally, or on particular issues. The normative boundaries (or jurisdictional scope) of the state are defined by the normal justification criterion: the state has legitimate authority over a person, if that person would better conform to the reasons that already apply to her by following the laws of the state than by acting independently on the subject matter under consideration. On issues concerning, for example, the control or use of land indigenous peoples occupy or have traditionally used, the state is unlikely to be accepted as an authority by them.
What, though, of conditions in which a subject recognizes both authorities on the same issue; where, for example, indigenous peoples recognize the authority of the state and the authority of indigenous laws, traditions, and customs? Raz concludes that when several authorities pronounce on the same matter and their directives conflict, ‘we must decide, to the best of our ability, which is more reliable as a guide’,Footnote 93 relying on the normal justification thesis and evaluating ‘whether we would conform better to reason by trying to follow its directives than if we do not’.Footnote 94 The conclusion is, though, problematic. An authority directive is a reason for action on the part of the subject without the need to examine the underlying reasons that supported the adoption of the directive. The idea is central to Raz’s concept of authority: a binding authoritative directive excludes reliance on those reasons ‘that the lawmaker was meant to consider before issuing the directive’.Footnote 95 The adoption of a directive by a legitimate authority provides a content-independent reason for compliance. In cases where the subjects of authority directives recognize two or more institutions or actors as legitimate authorities, it is not possible for the subjects of the authority directives to resolve the conflict. Nor is there any meta-perspective from which to judge the various assertions of authority and conclude which should apply. The only possibility is for the conflict to be resolved (if it is resolved) by the modification of one or more of the directives by the respective authorities in light of the conflict. It is for subjects to determine which authorities are recognized as possessing the right to rule, in respect of which issues; it is for the legitimate authorities to resolve conflicts between normative systems. An authority directive can only be modified by an authority following reflection on the fact of the competing regulatory directive, which itself constitutes the legitimate exercise of political authority in the interest of subjects.
6. Conceptualizing UNDRIP within the framework of the service conception
The UN Declaration on the Rights of Indigenous Peoples contains extensive rights of political participation for indigenous peoples that differ from the regime elaborated in the Universal Declaration on Human Rights and the dominant conception of political justice that emphasizes the equality of individuals within the sovereign state. The rights to autonomy and self-governance for indigenous peoples and extensive rights of political participation (including the principle of free, prior, and informed consent) are difficult to reconcile with the democratic procedural model of political justice aligned with attempts to justify and legitimize the rule of sovereign law in the present day. The same cannot be said in relation to Raz’s service conception of authority, which provides that legitimate political authority is established where the authority is better placed than subjects to adopt regulatory directives that guide the actions of subjects in accordance with their interests and preferences, whilst maintaining a space for individual self-determination. Three conclusions, inter alia, follow from a reliance on the service conception. First, the authority of the state is not established in relation to all those under its control. Second, legitimate political authority depends on the acceptance of the normative authority by each subject on the policy issue under consideration. Third, we can understand the laws, traditions, and customs of indigenous peoples as valid systems of governance without subjecting them to the ‘taken-for-granted’ authority of the state-law system. These conclusions provide the basis for a revised conceptual understanding of the ‘authority’ of the state in relation to indigenous peoples.
First, the service conception does not understand legitimate political authority as sovereign authority. There is, then, no difficulty in the UN Declaration on the Rights of Indigenous Peoples recognizing the laws of indigenous peoples as valid normative systems of governance in the same way as the democratic state-law system. In this context, UNDRIP refers variously to the ‘laws, traditions and customs’ of indigenous peoples,Footnote 96 their ‘customs, traditions, rules and legal systems’,Footnote 97 and the ‘juridical systems or customs’ of indigenous peoples.Footnote 98 The term ‘juridical’ is coterminous with the term ‘legal’ and the idea of indigenous customs includes the customary laws of indigenous peoples.Footnote 99 UNDRIP provides that indigenous peoples have the right to ‘maintain and strengthen their distinct political, legal, economic, social and cultural institutions’.Footnote 100 The idea of an institution includes the regulation of social, economic, and political life through the laws, traditions, and customs adopted or recognized by the political and legal institutions of indigenous peoples.Footnote 101 The emphasis is on the collective regulation of the life of the community through indigenous self-governance regimes.Footnote 102 Where indigenous peoples recognize the authority of the state, it is an authority; equally where indigenous peoples accept the authority of an indigenous self-governance system, it is an authority for them.
Second, it is possible for indigenous peoples to recognize the authority of indigenous governance systems and the authority of the state, and for the authority of the state not to extend to all matters of social, economic, and political life over which it claims jurisdiction. The service conception explains the ability of indigenous peoples to accept or reject the assertion of normative authority (‘jurisdiction’) by the state – generally, and in relation to certain policy issues. This is a right of all putative subjects, but the distinctive identities of indigenous peoples suggest this is more likely in areas relating, for example, to the cultural practices of the group, as well as issues around the use of land. UNDRIP accepts that indigenous peoples can recognize the authority of the state and the authority of indigenous self-governance regimes, with the subjects of the authority regimes (i.e. indigenous peoples) de-limiting their respective competences of the normative systems.Footnote 103 UNDRIP provisions on autonomy and self-governance combine to allow indigenous peoples the ability to delimit the scope and boundaries of authority of the state.Footnote 104 The judgement as to whether indigenous peoples accept the authority of the state is not undertaken on a case-by-case basis: where indigenous peoples recognize the authority of the state on a particular issue, the state is an authority.
Third, where indigenous peoples recognize the authority of the state, there might be additional conditions required for the exercise of political authority for the state to be recognized as a legitimate authority, given the historical marginalization of indigenous peoples from political life and significant differences in their world view, interests, preferences, and perspectives – and without which, indigenous peoples will not regard the state as an authority. The UN Declaration on the Rights of Indigenous Peoples follows the democratic procedural model of legitimacy in relation to the political authority of the state. In the language of the service conception, citizens (including indigenous citizens) accept the political authority of the state providing that certain democratic institutions and practices are in place (at least this is the understanding of UNDRIP and other international human rights law instruments). The Declaration on Indigenous Peoples recognizes a right for indigenous peoples to participate fully, if they so choose, in the political, economic, social, and cultural life of the state,Footnote 105 including on matters that affect their rights, through representatives chosen by themselves in accordance with their own procedures.Footnote 106 The Declaration emphasizes the epistemic qualities of democracy and requires that the state obtain the consent of indigenous peoples before adopting or implementing legislative or administrative measures that will affect the subjects of those directives. In the practice of democracy, given that a right of political participation simpliciter will not protect indigenous peoples from the threats posed by laws and policies that reflect the economic, social, and cultural norms of the dominant majority group, UNDRIP establishes that indigenous peoples have a right of veto on the adoption of policies they regard as deleterious to their ways of life. Consequently, whilst indigenous peoples might recognize the qualities of a political system based on principles of equality, deliberation, and consensus, they will not accept any principle of majority rule on issues around, for example, the regulation of the cultural life of the group, the use of traditional territories, and indigenous self-governance practices. In the language of the service conception, the state-law system must recognize the principle of free, prior, and informed consent, before indigenous peoples will accept the authority of the state on issues important to them.
Fourth, in cases of normative conflict between recognized authorities on an issue within their jurisdictions, the conflict cannot be removed by subjects, and there is no reason to recognize any a priori hierarchy between normative systems, in particular no reason to conclude that the sovereign authority of the state should prevail over indigenous laws. The conflict can only be removed through internal reflection within each normative system as to whether it has regulated in accordance with the reasons that apply to subjects or by external engagement with other normative systems in order to remove the conflict. Where there is a conflict between the laws of the state and the laws of indigenous peoples, the conflict can be removed by one or other of the regimes changing its authority directives in light of the conflict, accepting it has failed to regulate in accordance with the reasons that apply to subjects, or by agreement through bilateral deliberations to a modification of one or more of the competing directives. This understanding perhaps explains the focus on the collective aspect of political participation in UNDRIP.Footnote 107
A final complexity is introduced when the international human rights law regime is taken into consideration. Consider, for example, Article 34 of UNDRIP: indigenous peoples have the right to promote, develop, and maintain their juridical systems or customs, ‘in accordance with international human rights standards’. The provision suggests that indigenous peoples are subject to the authority of human rights in the same way the state is subject to the international human rights law regime. We might explain this by concluding that ‘human rights’ are implied by the service conception, which establishes that normative power is only legitimate where exercised in accordance with the interests of subjects. Raz accepts that fundamental human rights are a basis for challenging authority directives.Footnote 108 The concept of fundamental rights is not, however, defined by Raz, and this argument appears to be focused on the domestic political cultures of liberal and democratic states, and not on legitimate political authority more generally, with Raz outlining a different function for ‘human rights’ in the international community in subsequent writings.Footnote 109
The authority of international human rights law is provided (at least in part) by the authority of international law (following the service conception).Footnote 110 Whilst the exact content of the human rights obligations of states remains the subject of doctrinal and theoretical debate, there is no question that states recognize at least some minimum human rights obligations under international law. The same cannot be said in relation to indigenous peoples. Even if we could establish that the system of positive international law (on its own self-understanding) imposed human rights obligations on indigenous peoples, this article has demonstrated the difficulties in asserting a right to regulate the position of indigenous peoples (and others) by reference to sovereign authority. Further, the service conception establishes that indigenous peoples can only be subject to the authority of the international human rights law regime where they recognize that the human rights regime is better placed to identify the culturally determined reasons that apply to indigenous peoples than the indigenous peoples themselves. The participation of indigenous peoples in the agreement of the text of the UN Declaration on the Rights of Indigenous Peoples (if not in its formal adoption by the General Assembly) may be significant, particularly as the same formulation concerning the limitation of indigenous self-governance by reference to international human rights appears in the draft Declaration, which was not subject to formal approval by states.Footnote 111 The question as to the authority of human rights over indigenous peoples must, though, be asked in relation to each community and, in the absence of the acceptance of human rights by indigenous peoples, international human rights law instruments cannot impose limits on the self-governance regimes of indigenous peoples.Footnote 112 That is not to suggest that individuals subject to the authority of indigenous self-governance regimes will not seek to rely on human rights in internal political and legal arguments or that indigenous regimes will not be influenced by human rights norms – simply that international human rights law does not establish normative limits on the self-governance regimes of indigenous peoples. In this context, UNDRIP must be seen as conceptualizing an understanding between states and indigenous peoples that ‘international human rights’ constitute an inherent limit on exercise of political authority.
7. Conclusion
The emergence of an international law on indigenous peoples and adoption of a UN Declaration on the Rights of Indigenous Peoples confirm that indigenous peoples are subjects of international law and that states and international organizations and institutions have correlative obligations in relation to indigenous peoples, including in relation to the rights of political participation and self-governance. The philosophical and jurisprudential reasoning for these developments is not clear, however – consider, for example, arguments that the legitimacy of the moral claims of indigenous peoples are grounded in the facts of the historical injustice of colonization and dispossession of territories; of ‘being first’; of cultural difference, understood in terms of an association with land; and/or the existence of indigenous self-governance institutions with social, economic, and political life regulated in accordance with indigenous laws, traditions, and customs. One response might be to observe that positive international law creates its own legitimacy – legitimacy as legality. It would, though, be problematic, even allowing for the participation of indigenous peoples in the drafting of UNDRIP,Footnote 113 to conclude that an expression of global political justice in relation to indigenous peoples could emerge only through an exercise of ‘sovereign authority’ (membership in the United Nations is reserved for states, and it was the UN General Assembly that adopted UNDRIP), given that the idea of ‘sovereignty’ was constructed in contradistinction to the imagined identities of the indigenous populations of the Americas. Moreover (and for the same reason), whilst many of the rights in UNDRIP establish correlative duties on the part of states, the concept of ‘indigenous peoples’ cannot be defined exclusively by reference to the (prior) existence of the state; nor can the exercise of normative power over indigenous peoples be grounded in some idea of ‘sovereign authority’.
The objective of this article was to evaluate the extent to which Raz’s service conception of authority could provide a conceptual framework within which to make sense of the international-law regime on indigenous peoples. The service conception makes clear that there are no universal criteria for establishing authority, and the nature of legitimate authority will vary from place to place, and from time to time, depending of the political culture of the community in question (understood in its broadest senses). Further, there is no difficulty in recognizing the existence of multiple and overlapping authority regimes – indeed the adoption of UNDRIP can be seen as a recognition of a need to address the complexities that confront indigenous peoples in their everyday lives, whereby persons belonging to indigenous communities accept the authority of the state but are reluctant to defer to majoritarian practices and affirm the salience and importance of self-governance for indigenous groups. The normal justification thesis explains the conditions for recognizing the validity and limits of the respective regimes and the ways in which normative conflict (including conflict with human rights norms) can be addressed, if not resolved.
There is no doubt that the UN Declaration on the Rights of Indigenous Peoples is a significant instrument for indigenous peoples.Footnote 114 This article has shown that it is also significant for legal and political theory and for understanding such concepts as legitimate political authority, including sovereign authority. UNDRIP makes clear that international lawyers – as with their domestic counterparts – can no longer understand the idea of (global) political justice – if they ever could – in terms of a limited democratic procedural model applied exclusively to the ‘sovereign’ state. Sovereign authority does not establish legitimate political authority, nor does it exclude other claims of authority. The scope of authority (or boundaries of jurisdiction) of the state are not defined by an assertion of sovereign authority but by the acceptance of the right of the state to rule on the particular subject issue under consideration (understood in terms of the general recognition of authority, and not acceptance on a case-by-case basis).
The analysis developed in this article, drawing on Raz’s service conception, not only allows us to make sense of the UN Declaration on the Rights of Indigenous Peoples in terms of a coherent model of political theory, in contrast with, for example, the ‘liberal democratic’ approach (above),Footnote 115 but also in terms of the way UNDRIP limits the normative power of the state over indigenous peoples. It also allows us to recognize the authority of indigenous self-governance systems without reference to the sovereign authority of the state. Perhaps the central insight concerns the perspective from which we evaluate authority. Whilst conflicts of normative systems must be resolved by recognized authorities, the establishment (and maintenance) of authority is constituted by the recognition of authority by subjects. From this we can make sense of the overlapping legal and normative regimes that structure the social existence of human persons, including indigenous peoples, without the requirement for recourse to some hypothetical social-contract model to justify the use of coercive power by the governmental institutions of the state (and if there is one lesson from history, it is that the capacity to commit violence cannot justify the use of violence). In other words, we have a good starting point for constructing a concept of global justice without the need to frame the idea in terms of the taken-for-granted authority of the state and its right to rule those under its power.
