Public Philosophy in a New Key: Volume 1, Democracy and Civic Freedom

Ideas in Context

by James H. Tully

These two ambitious volumes from one of the world’s most celebrated political philosophers present a new kind of political and legal theory that James Tully calls a public philosophy, and a complementary new way of thinking about active citizenship, called civic freedom. Professor Tully takes the reader step-by-step through the principal debates in political theory and the major types of political struggle today. These volumes represent a genuine landmark in political theory from the author of Strange Multiplicity, one of the most influential and distinctive commentaries on politics and the contemporary world published in recent years. This first volume of Public Philosophy in a New Key consists of a presentation and defense of a contextual approach to public philosophy and civic freedom, and then goes on to study specific struggles over recognition and distribution within states.

Genres: Philosophy

388 pages, Paperback

First published November 1, 2008

Reviews

[Tony · Rating 5 out of 5]

This review is limited to Vol.1, parts 2 & 3, for what Tully calls "case studies of struggles over recognition." (p.291)

In Part 2, there is a useful, because concrete, discussion of "democratic will-formation" (pp.176, 211, 216), with reference to both the struggles of Indigenous peoples and the seperatist movement in the province of Quebec--both within the Canadian context, but addressed with an eye to their broader applicability on the world stage. (Volume 1 is followed by Volume 2 on global relations.) No attempt is made in this volume to apply the principles and practices defended in this particular multinational context--to the situation in the U.S. It turns out the United States doesn't qualify as a multinational society according to the definitions provided (see discussion and definition of terms pp.187-88.; also excluded here, for different reasons, are both New Zealand, and Israel, p.194). The assumption is that the U.S. and its political culture is somewhat behind the curve, still laboring (futilely) in seeking the (retrograde) norm of a single nationhood, in keeping with prevailing juridical norms about what constitutes (narrow, court-defined) legitimacy or out of reverence for one-size-fits-all constitutionalism, so that it does not qualify here as a "multinational democracy" (the category considered most interesting in the late 20th century and today, in the early 21st). Even worse, the U.S. might not qualify because it is conceptually a "multinational empire" (italics added), with its imperial ambitions that, historically speaking, ran roughshod over the Indigenous peoples that it came to dominate, specifically in its westward expansion across the continental U.S., but also, perhaps, in its overseas possessions. (Some of these outright 'colonies' of the U.S. have since been granted their independence, notably the Philippines, while others have not, notably Puerto Rico and Guam, etc.) Another disqualification may be how, in the U.S., the English language is used for the purpose of dominance over the country's culturally diverse society, with a dissolving effect on linguistic minorities. (By comparison, in Canada, there are two official languages, both English and French.) Nonetheless, or notwithstanding, this "new key" in which public debates are being held in other countries (those countries cited by Tully are Canada, the U.K, Belgium, Spain--actually, the comparative government discussion of the latter three is not provided here; see vol.2), and especially debates around international and/or internal recognition of aboriginal First Nations, could also be applied to the U.S.

For an example of how this "new key" could be applied to the U.S., or is being applied within its culturally-diverse society, let's take up one such plausible set of demands for recognition from the Cherokee Nation in Oklahoma (CNO). (For a discussion of Chief U.S. Justice John Marshall on Indigenous rights, and his opinion about the prior and continuing sovereignty of First Nations, specificallly, of the Cherokee Nation, see Tully's earlier book Strange Multiplicity, pp.117-127.) There has been a movement, perhaps most evident in the last decade, among the Cherokees within the state of Oklahoma, to be recognized as a self-governing people, both in federal and state relations. The Cherokee understand that their identities as citizens of a sovereign 'tribal nation' overlaps with their identities as citizens of the state of Oklahoma and the federal United States. (The American terminology regularly uses the pejorative term 'tribes', connotational with 'savage', or the term 'bands', connotational with uncivilized or relatively unorganized compared to the host state, or dominant nation; usage in the U.S. tends to avoid the more legalistic 'sovereign nations', in order to settle with what to my ear sounds oxymoronic, 'tribal nations' -- cp. Tully's systematic use of 'First Nations', always capitalized.) The Cherokee are currently demanding negotiation over the promise (made by treaty, duly ratified by the U.S. Senate) to be granted an official (non-voting) representative, delegate or deputy in the U.S. Congress, somewhat similarly to the way Puerto Rico already has such a non-voting representative in that august governing body. The Treaty of New Echota (1835/1836) had the Cherokee agree (albeit, the treaty was agreed to by only a minority Cherokee political faction, the 'Treaty Party') to their forceful removal from their traditional lands in the southeast of the country, in exchange for both land further west (in what was then called "Indian Territory" aka present-day Oklahoma) and a recognized voice or presence in Congress, through their official representative. (The treaty states that the Cherokee "shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same," pointing out the American nation's duty to acknowledge the Cherokee Nation in this specific way.) Not only has the U.S. failed to live up to this treaty obligation, but furthermore, the State of Oklahoma has been making egress into the police powers that the Cherokee Nation has enjoyed over its recognized territory and its membership. The larger society has difficulties coming to terms with concepts of multiple, or shared sovereignty, between the state and the Indigenous people within its midst--even as it shares sovereignty already between the individual states and the federal government. Recently, not only the Cherokees, but also other First Nations (again, the non-pejorative term for indigenous groups) within the State of Oklahoma (again, a jurisdiction that was formerly recognized in law and defined on maps as "Indian Territory"), such as the Choctaw, Muskogee, etc., have been intersubjectively striving for greater recognition from state and federal governments (hence, at the level of intergovernmental relations). Such recognition from the wider (predominantly white) society would go far towards creating a more legitimate and stable relationship between the minority groups and majority society. Neither federal nor state-level government has fully acknowledged their duty towards these indigenous nations; neither, for example, by righting a historic wrong and granting the Cherokee their representative in Congress (a meeting over this issue was being held in the U.S. House of Representatives, Wednesday, 16 Nov 2022, as I draft this), nor by conceding the police powers of the Cherokee Nation over its own members (although this has largely been decided by the courts, in the McGirt v. Oklahoma case of 2020). Officials in government, whether federal or state-level, continue mistakenly to seek a uniform jurisdiction across the nation, or within their particular state, unable to get their head around the idea that the U.S. is a multinational entity, especially when one considers all the treaties signed between indigenous groups that were historically self-governing, pre-contact; or again, especially, within territory (a 'state' only since 1907) that was in theory originally protected from white colonization and instead opened up to settlers (q.v. Oklahoma 'Sooners').

Similar to indigenous First Nations in Canada (the example which Tully dwells upon most is the recent treaty-making by the Nisga'a Nation, in British Columbia, in western Canada), the Cherokee in mid-America claim that 1) there is a mis-recognition of their place within the U.S. constitutional regime, because of the non-recognition of their nation within Congress, currently without its own spokesperson or observer in Congress, contrary to treaty expectations; 2) there is a continuing injustice being committed against the Cherokee, both in federal and state relations with the Cherokee Nation (albeit they might concede that some positive accommodation has occurred in recent decades--the worst of the assimilationist tendencies were in the early-to-mid 20th century); 3) there are strong public reasons for both co-equal status with the U.S. government (that signed an international, binding treaty with a sovereign nation) and for prior jurisdiction within the State of Oklahoma (Cherokees being present in the state, at least a century prior to statehood, in an unbroken line of self-governing jurisdiction since they arrived here--again, because of the 'Trail of Tears', the forced migration out of their original lands in Georgia, South Carolina, North Carolina, Tennessee, and Alabama, in the southeastern U.S.); and 4) recognition of Cherokee special status by the mainstream, with the granting or acknowledging of a coterminous, overlapping citizenship for members of the Cherokee, the kind of recognition that would help generate a greater sense of loyalty from the Cherokee membership towards the nation, in a kind of "second-order citizen-identity" (Tully, vol.1, chp.9, p.311--what Tully elsewhere calls "the conciliation of freedom and belonging", see Strange Multiplicity, chp.2, p.32). In particular, greater recognition of the Cherokee by the host state of Oklahoma would make the state both constitutionally more just, as well as lead to more constructive cooperation between the state and the sovereign nation(s) within its midst. (By extension, the state would be more just and more constructive in keeping with how much more thoroughly Oklahoma recognizes the other Indigenous nations within its boundaries, as well, some 39 in total.) There has been push back (Tully, vol.1, p.228 "backlash"): some within Oklahoma government defend the status quo and continue to believe that criminal jurisdiction of the state should override the claims of national sovereignty made by the Cherokee (or other First Nations within the state). The principle of diversity or distinctness (Tully, vol.1, p.197) is not conceded as a founding principle of the U.S., let alone of the state of Oklahoma, which was unilaterally imposed over what was Indian Territory. The majority of the voting population within Oklahoma also appears to uphold a non-diverse liberal theory of democracy, where majority rule, so long as it is in accord with the rule of law, can swamp the demands of the minority groups within their state's boundaries (q.v. Madison on the 'tyranny of the majority'). Yet, by dint or dole of the Cherokee making these demands consistently over the years, we've witnessed the decolonization of Indian 'Tribes' (aka 'First Nations') within Oklahoma, and more broadly across the United States, in recent decades, and their concomitant revitalization "after centuries of misrecognition, internal colonisation and marginalisation" (Tully, vol.1, chp.3, p.107--again, Tully is writing almost exclusively in reference to Indigenous peoples in Canada, such as the Cree in Quebec, or the Nisga'a in BC, not those in the U.S., where the situation was similar historically, but the legal protections for them weaker than in Canada). Need one recite here the injustices of 'reservations' created for Indigenous groups (construed as under the 'guardianship' of the federal government, parcels of land set aside for forced relocations); or the reservation schools, that is, American Indian boarding schools, with their systematic discrimination against Indigenous culture and language? Yet, we've seen Cherokees (and others together with them) participating in the democratic process, granting legitimacy to the voting process that can affect their fate, seeking out their members in order to have them register for the vote, and endorsing candidates for statewide office (viz. In 2022, Joy Hofmeister received their endorsement as a candidate for governor--although she ultimately only garnered 41.79% of the vote statewide, this election.) Even if they have not currently persuaded the majority culture that there is a duty to acknowledge First Nations' claims of sovereignty within Oklahoma, we see the Cherokees and their fellow claimants within the state (Chickasaw, Creek, Seminole, etc), winning over converts, playing a long game, and garnering declamations from the society at large, that they are deserving of respect. e.g. As a candidate for governor in 2020, Joy Hofmeister stated that she "recognizes and supports the sovereignty of tribal nations in Oklahoma, and respects the significant contributions tribal members make to our communities through education, healthcare, law enforcement, charitable donations and economic impact," according to her campaign website (under "issues" > "tribal nations" -- see weblink below) and, at the Tulsa Powwow in August 2022, she said: "It is time for a governor for the state of Oklahoma that respects again the tribal sovereignty of our tribal nations, and I will do that, and we will lead together in partnership." (quoted on KOSU radio, 10 Oct 2022).

For the non-indigenous world, an acknowledgement is needed that mainstream civilization has both misrecognized and tried to assimilate unjustly, by forcing these alternative civilizations into boxes, whether literally within the boundaries of land reservations or linguistically into terms such as (savage) 'tribes' instead of dignified, because prior-in-time, First Nations. For the U.S. as much as if not more than the case studies here focused on Canada, the country is still in the process of "learning to follow a norm" (vol.1, chp.9, p.296), by respecting the treaties that the country itself signed, rather than attempting to continue to dominate indigenous cultures within its bounds in some form of 'internal colonization'. What's needed are "open practices of dialogue' (p.292) in an interactive effort of rule-following, where the U.S. too lives up to the rules that it imposed upon itself, historically, when it dealt with Cherokees, etc., in the past. Granting them a voice at the Congressional policy table, by conceding the obligation to seat a Cherokee delegate, for instance, would be one positive step, even if the U.S. is not ready to give the Cherokee Nation (or by extension, the Choctaw, etc.) an actual vote on the floor of the U.S. House of Representatives. It would be altogether another thing, to acknowledge and to teach in public schools for general consumption, in the hopes of inter-generational change for good, that much of the land west of the Mississippi, was settled unconscionably. e.g. In the case of the Cherokee removed to Oklahoma, the prior treaty of 1785 (prior to the 1825 Treaty of New Echota, referred to above), namely, the Treaty of Hopewell, had already promised that the U.S. would not countenance white 'squatters' beyond a certain meridian, roughly speaking; there's an argument waiting to be made that the U.S. Treaty of 1785 is the American equivalent of the British Proclamation of 1763.

The problem with Volume 1, Part 1, is that the early chapters present a kind of stumbling block, by delving into an esoteric debate between Foucault and Habermas, that can look tangential to the case studies under examination. The theoretical issues are fascinating, if you're so inclined to delve into them, but the upshot is that, as Tully puts it at one point "relations of power codified in the prevailing system of misrecognition structure the discussions and negotiations in unequal and unfair ways" (vol.1 p.214, italics added). As a result, the juridical, or law-based, approach is too thin; it fails to reflect some key aspects of lived experience, in the struggles of the late 20th and early 21st century, for groups such as linguistic minorities and/or Indigenous peoples.

You may want to defer reading Volume 1 in its entirety, and instead start with Volume 2, the more accessible of the two volumes. Once you've seen what this "new key" looks like internationally, in Vol.2., it may be more apparent what Tully is trying to do in Vol.1.

some news sources:

"Five Tribes endorse Democratic candidate for governor"
By Chad Hunter, Reporter
Oct 16, 2022
The Cherokee Phoenix (Tahlequah, Ok)
https://www.cherokeephoenix.org/news/... [date accessed 19 Nov 2022]

"JoyforOK" [gubernatorial campaign website]
Authorized and Paid for by Friends of Joy Hofmeister 2022
https://joyforok.com/issue/tribal-nat... [date accessed 19 Nov 2022]

"US House eyes prospect of seating Cherokee Nation delegate"
By Sean Murphy
November 17, 2022
Associated Press
https://apnews.com/article/barack-oba... [date accessed 19 Nov 2022]

[Laura Vilbiks · Rating 5 out of 5]

Starting to write my thesis on Tully, but I still feel it's too early to write a proper review. Overall, I like his approach. But there are ample possibilities for criticism. One which pops up right from the start is his idea of public philosophy as something that "grants primacy to practice" and is not normative. The end result, however, is strangely similar to those idealistic and normative theories he wishes to oppose in the beginning. It's a beautiful ideal, though.

[Pete · Rating 3 out of 5]

[I only read the 2 chapters on indigenous rights, so take this for what it's worth] Tully situates the condition of (North American) indigenous peoples within the history of the development of the U.S. and Canada, broadly characterizing the history of these relations in terms of treaties and internal colonization. The first chapter is spent discussing five facets which are required for reconciliation between indigenous and non-indigenous peoples in North America. ‘Reconciliation’ itself is never defined, but seems to imply autonomy, economic independence, mutual respect and self-governance. The second chapter discusses the role of political theory in internal colonization. An interesting point that Tully makes here is that most discussions of the legitimation of colonial governance necessarily take for granted the legitimacy of the colonial regime they are justifying. He also usefully makes the point that historically, political contests over indigenous vs. non-indigenous sovereignty have revolved around territorial control, especially as this forms the basis for new Western states which seek to occupy indigenous territory. This goes beyond the appropriation of labor or resources. For my purposes, this point is important since the forms of political control exercised through biodiversity conservation do not necessarily seek direct territorial control, nor are they intrinsically concerned with extraction. They are first and foremost concerned with the alignment of agendas, mandates, etc. There are some serious conceptual slips in Tully’s account of the historical origins of indigenous sovereignty, including the assertion that indigenous peoples existed as nations prior to intervention by Westerners, and that they currently seek to reproduce traditional lifeways. It also rests on a simplified assumption about what constitutes political representation - i.e. that plebeian democracy or consensual political systems are more or less equivalent with representational democracy as it is putatively instantiated in the nation-state of Canada.