OZ Conservative has a well written and interesting article on Michael Ignatieff. The differences between the liberal, nationalist and conservative views on citizenship are looked at in detail.

From the article;

Ignatieff is a liberal. As such, he believes that individuals should be self-defined. Therefore he rejects ethnic nationalism (in which national identity is based on a common ancestry, culture, language and so on)

This is the argument that accidents of birth or geography should not define citizenship. Oz Conservative quotes Ignatieff to display that his take on the liberal side of civics, ie Cosmopolitanism is really quite traditional and conservative in its view. Ignatieff is quoted;

It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation-state for granted ... The cosmopolitanism of the great cities - London, Los Angeles, New York, London - depends critically on the rule-enforcing capacities of the nation state ...

"In this sense, therefore, cosmopolitans like myself are not beyond the nation; and a cosmopolitan, post-nationalist spirit will always depend, in the end, on the capacity of nation-states to provide security and civility for their citizens."

"I am a civic nationalist, someone who believes in the necessity of nations and in the duty of citizens to defend the capacity of nations to provide the security and rights we all need in order to live cosmopolitan lives.

This is where Ignatieff confuses the intrinsic property of a polity and government system with the emergent properties. Civic identity is a result of individuals pursuing their social, cultural and economic identity.

A conservative reading of that social organisation design pattern would see no difference between the intrinsic and emergent properties of society. The government, law and order, society and culture are all one entity. We see this when conservatives make claims that "our legal system is an Australian value".

Gary Sauer-Thompson writes on this;

Conservatism understands that nationality and society are rooted in biological, cultural and historical heritage. The difference between these two concepts becomes particularly obvious when one compares how they visualize history and the structure of the real. Nationalists are proponents of holism.

Nationalists see the individual as a kinsman, sustained by the people and community. which nurtures and protects him, and with which he is proud to identify. The individual's actions represent an act of participation in the life of his people, and freedom of action is very real because, sharing in the values of his associates, the individual will seldom seek to threaten the basic values of the community with which he identifies.

The liberal viewpoint would be that the emergent property of social organisation does not exist. It is utterly defined by the individuals pursuing their interests. This is the dominance of the intrinsic over the emergent, which is why liberalism and nationalism so often come into conflict.

Again Gary Sauer-Thompson has a discussion of that phenomenon;

The essence of modern liberal thought is that order is believed to be able to consolidate itself by means of all-out economic competition, that is, through the battle of all against all, requiring governments to do no more than set certain essential ground rules and provide certain services which the individual alone cannot adequately provide.

I recently discussed this same issue from an Australian Republican perspective. While the absence of privilege may seem a liberal value, which it is, it is the ground work for enabling the creation and interaction of the emergent properties in a complex system that create social cohesion.

This is a systems view of social interaction and cohesion. In a Harpurian manner the highest form of social organisation, and consequently prosperity, can only be achieved through individual members in the system having the liberty to pursue their social, cultural and economic interests.

The point of greatest cohesion, is the one of greatest interaction and interdependence which by default is an intrinsic system of maximum liberty.

cam

There are two competing dominant political forms in liberal democracy, these are the individual and the state. Political philosophies can be divided along these lines. In Australian Republicanism, the individual is the dominant, indivisible and discrete political entity.

Conservatism and Nationalism as political philosophies elevate the state to the dominant form of political authority.

Conservatives see the history, culture and ethnic memory of the political majority as providing sustenance, and nurturement for the individual.

Under conservatism, the nation-state becomes dominant over the individual, as the cultural will and majority, expressed through government becomes more important than an individual.

In the conservative framework, an individual who upsets the apple-cart of ethnic, cultural and political memory is dangerous and acts outside of the political system of order.

For this reason, conservatives can view the rights and perpetuation of the state as being more important than individual rights.

A similar political narrative arises with nationalism. The nationalist philosophy elevates the nation-state to dominance over the individual. As a consequence the nation-state can act in a repugnant manner to an individual in order to ensure its own perpetuation as the dominant political entity.

Laws for sedition is a good example of this. They are meaningless laws in a system were the individual is dominant.

Another example is citizenship which is used by conservatives and nationalist as an exclusionary system of legislative discrimination. Citizenship as it is practiced today by nation-states can only come from a system where the state is dominant over the individual.

The philosophies where the individual is the dominant political entity are liberalism, libertarianism, progressivism and republicanism.

These all stem from the political roots of liberalism even though they use different language to describe the individual's dominance. For instance libertarians talk of individual rights, progressives of human rights and republicans of natural rights; which means the same thing.

Under republicanism the just basis for an individual consenting to be governed is that there is a sphere of liberty that cannot be trespassed on by government.

The state must always justify any restriction on the action of the individual with the default form of consent from the individual being presumed as the negative.

The basis for consent is predicated on the complete absence of tyranny in government. The constitutional and statutory structure must be developed into the most efficient organisational form to ensure that outcome.

An inefficient form of social and governmental organisation is in conflict with republicanism. Especially ones that entrench social, political and executive privilege. For instance a monarchical arrangement is repugnant to republicanism, as is a constitution without enumerated rights.

Republicanism is founded on natural rights. These are a function of being an individual and human. The consequences of this philosophy makes citizenship a universal aspect of interaction with the state. Natural rights establish universalism as a strong principle in republicanism.

There are two possible dominant political entities in liberal democracy, the individual and the state. Progressivism, republicanism, liberalism and libertarianism see the individual as the dominant entity whereas conservatism and nationalism sees the state as the dominant entity. Most of history has been a struggle for the individual to rise to the position of political dominance, suffering all manner of arbitrary governance, from monarchy, to tyranny, and even colonialism. Liberal democracy is currently the best technology to represent the relationship between governed and governor, but may be replaced if a better technology to represent the individuals interests is found.

Liberalism places the focus on the individual and espouses political equality. Consequently inequalities such as the divine right to rule and hereditary rule were discredited and political equality advanced within the boundaries of nationalisms own political inequalities.

The ideologies of progressivism, republicanism, liberalism and libertarianism all draw heavily from Liberalism and are essentially arguments of what form of Liberalism the relationship between governed and governor should take. The ideologies are also articulations of political technology, after all, politics itself is a human technology. The starting principle of these ideologies and hence technology, can be used to derive the base truths, or relationship, between the individual and state.

Since the central tenet to progressivism, republicanism, liberalism and libertarianism, is that the individual is the dominant political entity it follows naturally that political equality becomes an exclusive right - where a right is a just basis for any relationship between an individual and government.

We see this recognition in the language of ideologies; progressives tend to call it human rights, republicans call it natural rights, liberals call them political rights and libertarians call them individual rights. These are all in the same descriptive bag; because the individual is the dominant entity, there are liberties that the individual holds as unassailable from legislative intrusion and executive force.

Australian Republicanism holds the view that civil order is impossible with the presence of state tyranny or arbitrary governance. As a consequence any just relationship between the individual and state must be predicated on this, as it follows no rational individual would submit themselves to be governed if there are no benefits from civil order, they may as well be in a state of nature. Without the guarantee of rights there is no just relationship, there is no liberal democracy, instead their is the presence of tyranny and arbitrary governance.

Conservatism and nationalism both approach the dominant political entity from the other side, elevating the state above the individual. Gary Sauer-Thompson described this very succinctly ;

Conservatism understands that nationality and society are rooted in biological, cultural and historical heritage. The difference between these two concepts becomes particularly obvious when one compares how they visualize history and the structure of the real. Nationalists are proponents of holism.

Nationalists see the individual as a kinsman, sustained by the people and community. which nurtures and protects him, and with which he is proud to identify. The individual's actions represent an act of participation in the life of his people, and freedom of action is very real because, sharing in the values of his associates, the individual will seldom seek to threaten the basic values of the community with which he identifies.

Because conservatives and nationalists see the state as being the basis for nurturing the individual they allow for political inequality, effectively arbitrary governance, against individuals that threaten the state. We have seen this in the past with sedition laws and political prisoners which made up a significant portion of Australia's initial European immigration. For instance one of the Scottish Martyrs, Thomas Muir , was detained and deported to Australia for handing out copies of Thomas Paine's Rights of Man .

This style of conservatism and nationalism also enable discriminative political inequality often over arbitrary issues such as ethnicity, which are little more than accidents of birth. The treatment of the Australian aboriginal people between the 1880s and 1960s are some of the worst excesses of that mindset. More recently we have seen the creation of camps outside of legislative and judicial jurisdiction such as Guantanamo Bay and the Nauru Detention Centre.

I am not saying conservatism and nationalism are all bad. The steady as she goes nature of small 'c' conservatism and its desire for empirical decision making from history are positive attributes. By the same token the nation-state and nationalism have been decent technologies over the last several hundred years since the Treaty of Westphalia. It has enabled increasing global economic activity and a semblance of international order between nations; though the break-downs in order have been catastrophic but generally only short in destructive length.

However it does need to be recognised that some conservatives and nationalists who support this ideological position enable tyranny and arbitrary governance inside a liberal democratic system. Tyranny is a big word, one that we often equate with dictators and despots but it does not have to be absolute to be destructive - just persistent, and arbitrary governance is what we call persistent tyranny.

The major and minor parties in Australia are predominantly economic liberal, culturally conservative and politically nationalist. Most of the political arguments between the Liberal Party, Labor Party, Nationals, Australian Democrats and Greens are within this framework. It is already a crowded political marketplace in that area.

Often too, ideological naming is mis-appropriated by parties, Australian liberals calls themselves classical liberals to disassociate themselves from the Liberal Party or the slur-like meaning 'Liberal' has taken on in America. Australian Republicans are horrified at the lack of republicanism shown by the American Republican Party. Conservatives are horrified at the authoritarianism being espoused in their name in the United States. Genuine libertarians are also dismayed at the appropriating of their language by liberal-conservative-nationalists who see the claim to libertarianism as carrying a cachet of cool.

All these parties and ideologies require a quiet moment of genuflection, to reassess the basic principle from which they stem. This basic principle of the dominant discrete political entity becomes the basis for the choice of political technologies; ie constitutionalism, separation of powers, governance etc: as well as the founding principles with which prosperity, liberty and the on-going advance of humanity are achieved.

x-posted on clubtroppo

I have been a bit tough on conservatism recently, I don't want that to be construed as conservatism being without value, which is untrue. Conservatism's 'steady as she goes' and empirical view of history are both good methods in determining the adoption of constitutional and statutory technologies. Neither of those are incompatible with republicanism, though republicanism does allow for the liberal rationalistic leap, the best example of this being the American Republic. As long as conservatism places its foundation as individual-centric it finds agreeance with Australian Republicanism. An example of this is the American Goldwater Conservatives.

Barnaby Joyce is an Australian Senator for Queensland and a member of the Nationals. The platform for the Nationals places them as conservative with occasional statist tendencies toward their natural special interest groups - rurals and agriculturalists. Barnaby Joyce recently said in a speech ;

The purpose of politics is to deliver to you the highest level of freedom that does not impinge on the rights of others.

I don't really mind, or care, how Barnaby Joyce defines himself politically, as the sentiment in that statement is entirely consistent with Australian Republicanism's view of liberty.

Barry Goldwater wrote;

Politics is the art of achieving the maximum amount of freedom for individuals that is consistent with the maintenance of social order, the conservative's first concern will always be: Are we maximising freedom.

This style of conservatism is entirely compatible with Australian Republicanism too. For the simple reason that it places the individual as the dominant political entity over the state.

The conservatives and nationalists that believe the state has that dominant position over the individual are not only limiting freedom by giving the state too great an authority, they are also entrenching tyranny and arbitrary governance as it enables the state to 'cut-out' minorities that interfere with the mono-culturalism or mono-nationalist inherent in such a structure.

Republican government is predicated on the minority accepting the will of the majority through representative government, but doing so, secure in their rights from tyranny of the mob or majority. It is the only just relationship that is sustainable.

Often what is called cultural conservatism and political nationalism is probably best described as authoritarian statism dressed in conservative and nationalist clothing. One of the problems of elevating the state over the individual is that political equality is the first thing out of the window as authoritarian statism takes over and starts creating 'camps'.

The mono-culturalist assimilative policies Australia maintained from the 1880s in Western Australia through to the 1960s at the federal level where highly destructive to the families of aboriginal people. It was perpetuated against a politically weak, and disenfranchised minority, in order to glorify the state as mono-ethnic. This policy produced the 'camps' of kidnapped Aboriginal children. It was a misguided policy which should not happen again.

Nationalism, if elevated to the highest political entity, can be just as destructive. The nation-state as a collective decision making entity has had a good run since the Treaty of Westphalia, providing sufficient security and order for a globalised economic system to appear and with minimal breakdowns into total war.

Globalisation and the increasing mobility of capital and labor flows are putting pressure on it though. Again a highly nationalist approach has seen 'camps' appear outside of the judicature's jurisdiction. The pacific solution created camps on Nauru, Papua New Guinea and Christmas Island. As with mono-culturalism is a disenfranchised politically weak minority that is picked on - basically non-citizens.

This does not mean that bringing the aboriginal people from what western society considered poverty to modern living standards was not a worthy goal, nor does it mean that Australia should let any refugee or immigrant into the country; it does mean that when these policies are taken from a stand point of the individual being a dominant political entity the policy would not produce camps, and would not be inherently discriminative and arbitrary.

The fact is that when the state is elevated above the individual in the political hierarchy then tyranny and arbitrariness become entrenched, discriminative and destructive with political inequality becoming impossible.

Harpurian Republicanism and Deniehy Democratism espouses that the biggest inhibitor to an individual acting morally and ethically is the imposition of tyranny from the state. Consequently maximum liberty, which Joyce and Goldwater are both quoted as seeing the goal of politics being, is the only assurance from tyranny and arbitrary governance such that an individual can express themselves fully; morally, ethically, socially, culturally and economically.

cam

I know Avo is of the opinion that any op-ed which uses television to make a point turns the argument into farce; however, Albrechtson is arguing for a permanent state of exception and directly repudiating liberalism.

Since marxism collapsed as a political and economic competitor to liberalism in the 1980s, conservatism has arisen as the new doctrine of governance to challenge liberal and republican forms of democratic governance. Liberal republicanism being a system predisposed to maximum liberty and with government balanced by three equal branches who act as checks and balances on each other.

Modern conservatism espouses government by exception, this is where the executive is elevated above the legislative and judicial and can act without checks or balances in the name of emergency. This is the closest thing we have to organised tyranny in a liberal democratic system.

Because the executive can act independently it becomes free of the rule of law, free from constitutional checks and balances, and free to act arbitrarily. The conservative conceit is that the executive philosopher kings will act in good faith to solve the emergency (usually national security concerns) and like cincinnatus give back the constitution in a time of non-emergency.

This a fallacy as new enemies are constantly being fabricated at home and abroad. A good example of emergency governance is in Washington DC - a local council - that uses all manner of emergency legislation to get past public oversight, regulations and even get to meetings on time. Permanent emergency has become a style of governance which Australia is not immune to.

Republicans, liberals, progressives and libertarians are going to have to be aware that this form of governance breaks the very components of liberal democracy. Modern conservatism and liberal democracy cannot co-exist they are different forms of government. Once a government goes into a state of exception, it is no longer liberal democracy - it is a new form of governance.

Nationalists need to be aware that this form of conservative governance affects them as well. Citizenship is not the protection from state discrimination any more. The executive is free to define the 'enemy' that requires the exception, and as Hicks shows, citizenship has no bearing on determining who the state will choose to isolate into a legal never-world.

I am not saying that conservatism is the enemy. I am saying that it is an inefficient form of governance that directly repudiates and trashes the liberal republican/democratic principles. As a system of government, republicanism and conservatism cannot co-exist.

One of the areas where conservatism suffers internal conflict is in collectivism. Because conservatism cannot describe human progress with breaking its own internal logic it turns to economic liberalism while trying to maintain conservative collectivism in culture, society, politics and nationalism. Consequently it breaks the liberty of collectivism in the economy but tries to promote or enforce it everywhere else.

Republicanism accepts collectivism as a liberty as long as it is not predicated in violence, and not protected by the state through involuntary inclusion. For instance, Unions are fine, as long as they are not compulsory or violent. Same with political parties, they are fine, again as long as inclusion is not compulsory or their actions violent. It is the same with other forms of collective organisation such as special interest groups.

James Madison best described this in Federalist No.10. Madison believed that factions, ie political parties and special interest groups, were detrimental to political liberty. However denying them from politics would mean the liberty of political organisation would have to be curtailed; The cure would be worse than the disease.

Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

For this reason, Madison accepts political parties as long as they don't cause or foster violence.

It is the same with Workchoices. As long as the liberty to collective bargain does not cause violence, then there is no liberal or republican reason to ban or prohibit such a process through legislation. It becomes a legislative intrusion on liberty of organisation.

The republican response to collective bargaining is; if a republican must accept that there is liberty for political collectivism in political parties, then a republican must accept that there is the liberty for economic collectivism. This is with the caveats that there is no compulsion for an individual to belong to such a collective organisation and that the organisations are free from violence.

Parties are an inefficiency in the political system. As Adam has said in the past, they exist to 'game' the electoral system. James Carville, the US Democrat strategist stated during the 2004 elections that the purpose of a party is to gain government.

The structure of the representative system is specifically to put distance between the representative and the electorate so that the representative can make unpopular decisions which are in the 'common weal' or public good. There is intended to be a barrier between the representative and the fear of mob tyranny.

The problem with a representative system is that, while it denies the individual direct access, it gives political parties permanent access to government; and instead of mob tyranny, we get party political tyranny. This is what a state of emergency effectively is - executive political tyranny.

A fast path to executive tyranny is party discipline in the executive and legislative. This is a particular problem for parliamentary systems which have poor separation of powers anyway due to the Legislative and Executive being in the same body and the Executive making laws through parliament.

Consequently collectivism is not always the most efficient form of organisation for certain outcomes, including political and economic ones. However, the Australian republican, who favours a liberty first approach, has to accept these inefficiencies - as prohibition of the liberties for individuals to organise in their interests is far worse.

Conservatism lacks this internal consistency of republicanism. Because conservatism actively restricts access to the collective structures it sees as being a positive; such as nationalism, citizenship, family, culture etc; while selectively prohibiting the collectivism it dislikes; such as unions, collective bargaining, and even the rule of law when it suits a political purpose; conservatism becomes internally conflicted and hypocritical on the issue of liberty.

To achieve its political ends and to remain consistent conservatism has to use coercion and despotism. It has no other choice. I am sure they do not want to, but the political ideology and the political goals cannot be achieved without delving into a spate of despotism.

This is why marxism is an illiberal ideology. The Communist Manifesto advocates an initial state of emergency or short period of despotism which was excused during the Stalin era with the saying, 'breaking some eggs to make an omellette";

Of course, in the beginning, this [proletariat revolution] cannot be effected except by means of despotic inroads on the rights of property, and on the conditions of bourgeois production; by means of measures, therefore, which appear economically insufficient and untenable, but which, in the course of the movement, outstrip themselves, necessitate further inroads upon the old social order, and are unavoidable as a means of entirely revolutionizing the mode of production.

This is nothing more than a state of emergency or state of exception. This has been the same method that governments in liberal democracy use to enact their despotic policies. Chavez in Venezuala received the power from the legislature - not the constitution - to make and execute laws for the next six months. This is the process that Marx and Engel advocated in the Communist Manifesto. Chavez's view of socialism is in conflict with economic liberty, and consequently, requires a despotic hand to be brought to fruition and coercion to be maintained.

Anglo nations such as Australia and America are not immune from the state of emergency either. Claiming that the executive can both make and execute laws without oversight for reasons of crisis in national emergency. This excuse for despotism has found sympathetic voices in the mass media.

This is the inconsistency in conservatism and why the area where it does believe human progress stems from - economic liberty - brings its collective beliefs into tension. For instance economic rationalism/liberalism allows companies to market as they see fit to potential consumers. Sex is an extremely effective form or marketing and advertising, but this comes into conflict with conservative family values.

Economic liberalism also values the idea for the sake of it, which can often be a disruptive technology, and radically change the way that collective organisations including the nation, culture and society, interact. Conservativism's reliance on the economy as the only liberal component of its ideology means that the collective and static components of its politics are constantly under threat from progress. The end result of conservatism is a crisis of its ideology and a consequent state of exception to try and reconcile that crisis politically.

Nationalism is another area that conservatism cannot reconcile progress with its ideology. Economic liberalism and the flows of capital, goods and labor mean that the nation-state is unable to handle the political, economic, cultural and social requirements of globalisation. Worse it is often not able to provide the absence of violence in such a system. The big-state nationalist policies of conservatism are another issue as they are introducing inefficiencies into the economic globalisation by interfering with capital and labor flows in the name of nationalism.

Again, economic liberty is bringing conservatism into tension with itself, and forcing conservatism to fall into crisis; of which the easy way out is a Marx/Engel type of despotic emergency; though in the name of collective (national) security rather than marxist materialism.

It is interesting to note that when conservatives recognise the internal inconsistencies of conservatism as a political ideology and the inevitable end result of this philosophy, their 'conservatism' becomes liberal republicanism. Andrew Sullivan is a good example of a conservative who has come to this insight even though he refuses to call it liberal republicanism.

Ultimately this means that conservatism is unable to provide a coherent form of governance in a liberal democracy without dipping into despotism to resolve its lack of internal logic. In liberal democracy we see this as a state of exception. This form of governance is not unique to conservatism, other state-first ideologies such as socialism and nationalism also suffer under this incoherence and must inevitably end in authoritarian emergency.

Ultimately, this form of governance and political ideology is incompatible with liberal democracy and republican government. It must be recognised as such.

cam

Mark Richardson is a bit unique in the Australian blogsophere. One, he is a genuine conservative rather than a partisan conservative; two, he recognizes that left-right is meaningless since the collapse of marxism and that the new rival to liberalism is conservatism; and three, he is one of the few writers that is willing to engage the liberal blogs which includes progressives, liberals, republicans and libertarians, and question the basis of their political philosophy. This makes him much more interesting than the 'red meat' chucking that most blogs seem to do these days.

Mark asked recently:

How do rank and file liberals explain their beliefs? Last month I wrote two articles which eventually drew out some serious comments by Larvatus Prodeo readers.

What most seemed to stir the LPers was my argument that liberals don't want such things as religious, ethnic, gender, national, class or cultural identity to matter.

There are a couple of things I like about that question. One he called LPers liberals rather than lefties or luvvies or whatever the current Australian slur/hip name is.

This is an important distinction in modern politics. The traditional left and right have collapsed. The tension in political philosophy that now informs governance is liberalism and conservatism.

LPers are definitely in the liberal column and should embrace that argument within liberalism by branding themselves as progressives. I have called Polemica's brand of politics, in particular Guy's view of governance and the state as progressivism. I believe I am absolutely correct in this characterisation.

The second reason I like this question is because it is a bloody good one that goes right to the heart of the difference between liberalism and conservatism. This is a core question of political equality and does the state have the authority to discriminate politically and legally. Does identity, ethnicity, religiosity, nationalism and other higher-order collectivisms have any authority on the form and conduct of governance?

For the republican the answer is no. I have made this argument in the past in two forms. One that the liberal republican view of government is that the individual is politically dominant over the state. Whereas conservatism sees the state as being dominant over the individual, enabling the state to act discriminatingly in the name of identity, ethnicity etc.

A republican rejects this as political inequality. This is best expressed in Avocadia's Australian Bill of Rights where he explicitly denies the government these choices.

Does this mean identity, ethnicity, etc don't matter? No. It is fine that people see common cause in this manner, but it is a second order effect - an emergent one - not an intrinsic component; consequently it is denied to government and cannot inform governance. I went into this issue in detail describing social organisation. These are the social and cultural forms of individual self-organisation; not the basis of governance.

A good example in Australian history is ethnic-nationalism informing governance. One of the beliefs of ethnic government was that the Aboriginal race was dying out and that half-caste Aboriginals should be integrated into white society. This was done forcibly, originally in Western Australia, but by the 1930s all states and the federal government had government policies to remove half-caste Aboriginal children from their parents. This is nothing more than tyranny. Under republican governance the government is prohibited from removing children from their parents based on race, ethnicity etc.

Again, there is nothing wrong with ethnic expression, as long as it remains a societal and cultural artefact, an emergent property of individuals interacting, rather than an intrinsic political form that informs governance. In the latter case, once these forms of governance leak in, they inevitably lead to despotic policies and in the worst cases executive emergency governance where the state dominates an individual absolutely .

cam

The current conservative philosophy for governance is well described by Paul Kelly in a recent op-ed titled: At war over the law. This is the new brand of conservatism which is now competing with liberalism as the basis for governance. Forget left-right, that is gone as a binary distinction and the only use for it is to construct strawmen. Conservatism is based on executive dominance where the interests of the state trump individual rights. This is the opposite to republicanism and liberal democracy.

Kelly writes:

The bedrock view of the lawyers' rebellion is their refusal to accept the legitimacy of executive action based on statute and invoking the national interest.

The failure of this reading of government is that it elevates the executive and state above the individual. Coupled with a weak legislative - which is always a problem in parliamentary systems, this allows any despotic statute to justify the removal of judicial rights or an individual's full judicial expression.

The Migration Act of 2005 has been passed as statute law, but contains measures in it that allow arbitrary executive governance. It is a bad law and is the statutorial basis for the government to act arbitrarily. Which the executive did with Haneef by detaining him in an immigration detention center after the judicial could find no reason to detain him.

It was the executive in this case who refused to accept the authority of the judicial. This is a classic case of state of exception governance.

The other aspect of emergency is that it is done to save the state; maybe by suspending the constitution in order to save it (a-la Fiji), or in some other national interest where the collective concerns over-ride the political rights of individuals. This enables arbitrary governance from the executive. The handling of the Haneef issue carries all hallmarks of exception adhoc government.

So under the conservative definition of government; a weak legislative enables arbitrary government action in statute, which allows the executive to act arbitrarily, including ignoring the authority of the judicial, and to cancel an individual's political rights in the national interest.

At the best result of this style of governance is arbitrary government. At the worst it is tyranny.

We have constructed our political system with political technologies such as constitutionalism, federalism, separation of government branches, checks and balances, elected representatives, etc etc specifically to stop arbitrary government. Allowing it under executive dominance, national interest or emergency governance completely undermines the whole system. We do not have a republican system anyway, but we do have a liberal democratic one, and it undermines that completely.

Kelly continues:

Brennan slammed the detention powers as a "remarkable infringement on a person's common-law rights".

Such an expansion of executive power was undertaken without sufficient safeguards, the defect being "to transfer the protection of individual liberty from the judicial to the executive branch of government".

Brennan's remarks are illuminating. They make the pivotal issue one of power between executive and judiciary. His clear implication is that public acceptance of the laws cannot validate this defect nor make it acceptable.

There are two issues both of which form the core of republican doctrine. A simple, though not complete test, of republicanism is if the minority accepts majority rule, but with the knowledge they are secure in their rights. Public acceptance of laws cannot trump that. Otherwise it is known as tyranny of the mob.

The other issue is and in adjunct to the above; under republicanism an individual's political rights are universal, isotropic and inalienable. The executive and legislative cannot intrude into those rights. It is an area of absolute liberty an individual has which the executive and legislative are denied authority over.

This is why left-right is only useful for the construction of strawmen. The binary political descriptor is liberal vs conservative where liberal is individual as the dominant political entity and conservatism is the state as the dominant political entity. Under conservatism the state is generally embodied in the executive acting in national emergency or exception.

Most Australian conservatives are liberals. And those that wish to call themselves conservative or live conservative lifestyles,they have that liberty to live their lives as they choose. However this modern conservatism is unfit to inform governance. The end result - very quickly I might add - is executive rule and arbitrary government. We have seen this numerous times under the Howard government.

Another reason why left-right is meaningless is that I am sure future Labor governments will use emergency government and executive rule to dominate the political process. Already we have seen Rudd accept a war cabinet over the indigenous issues in the Northern Territory and not fight for liberalist or republican principles in the Haneef case.

This style of governance is becoming a new legal order in western democracies; "a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats"

Another aspect of emergency governance is that it makes the politics unitary. Essentially the adhoc decisions follow the political path of the executive and not the deliberative path of liberal democracy.

Kelly writes:

As explained by journalist Leigh Sales in her recent book, while John Howard could have brought Hicks's suffering to an end, so could his own lawyers by striking a plea bargain three years earlier. They didn't. Their aim was to wage a political campaign to break Howard's will and force his complete backdown over Hicks. It failed.

Once exception is established the judicial component is not fought in the legal or court space - it is elevated by the executive into the political space. The politics become unitary and public.

We saw this in the Haneef case were the guilt/innocence of the defendant was fought out in the public political space by the executive, the AFP and Haneef's lawyer. By establishing exception or emergency and ministerial fiat over the judicial decision the fate of the individual ceases to reside in legal order and becomes one of pure politics. It escapes the court and the trial is conducted publicly in the political space.

This is a failure of executive governance not the judicial. In fact the executive probably prefers it to be fought in the public space than under the less controllable legal outcome of a court.

Australia is poorly organised to fend off the establishment of the new exception legal order. We do not have a separate executive and our legislative in parliament is already under the thumb of the executive. The creation and passing of laws are the domain of the executive in parliament.

We do not have a constitutionally entrenched bill of rights which prohibits the executive from intruding into liberties and judicial mechanisms the individual has to sue the executive to have their grievance heard - such as habeas corpus. Rights ensure that an individual is dealt with uniformly, apolitically, not under exception or arbitrary executive intrusion.

John Howard recently argued in an Australia Day speech:

I believe this [establishing a Bill of Rights] would be a big mistake for our democracy. A Bill of Rights would not materially increase the freedoms of Australian citizens. It will not make us more united, indeed I believe it would lessen our ability to manage and to resolve conflict in a free society.

Howard is arguing that only a vigorous executive can protect an individual's freedoms. That the state or 'national interest' dominates the capability of a society to maintain civil order. This is in direct opposition to republicanism and liberalism. It also carries the irony that there is no aspect of an individuals political or judicial expression that can be denied executive interference. Consequently in this form of governance the state is politically dominant over the individual.

Rights are not about 'a right for everyone to go to school' or 'a right to dignity'; they are brutal and explicit constitutional language which denies the executive and legislative intrusion into an individuals liberties.

A Bill of Rights would limit executive and legislative action. They create a sphere of liberty that government cannot intrude into. If the government does, it enables the individual to sue the government directly through the judicial.

Anyone interested in a very modern Bill of Rights which is explicit and subtractive from government should read Avocadia's Bill of Rights v0.2.

More: Bill of Rights articles on SSR.

One of the results of an exception being created is that the politics become unitary. Essentially the politics around the exception or emergency become the executive and executive's alone. The health of liberal democracy is dependent upon political competition, discussion and deliberation. Removed of its liberal component democracy is reduced to the mechanical action of voting.

An establishment of a state of exception requires several a priori: precaution against a plausible catastrophe, the executive taking over judicial expression and a submissive legislative who is willing to legitimize the exception in legislation.

Parliaments are on the backfoot in this area anyway, as the executive dominates the legislative and decides what bills are pushed through or hit the floor. With the recent dominance of the party-machines in Australia and the United States at the federal level we have seen the deliberative process destroyed entirely in the legislative.

In the United States the recent round of legislation which legitimizes exception governance is the Patriot Act. Amongst other things it allows the executive to avoid having Senate confirmation for US Attorney appointments. The recess clause in the US Constitution has often been used for exception appointments, that this got through in the Patriot Act is remarkable.

In Australia the Migration Act is the main source of legislative legitimization for exception governance. This is not new, the clause requiring fluency in multiple European languages from the 1950s is an example of legislation enabling adhoc and arbitrary executive and executive official's decisions.

There is an argument for Ministers and Executive Officials and Bureaucrats to have that power as individuals often use their representatives familiarity with the arcane behaviour of the modern state to navigate the bureaucracy. For instance my green card application was stalled until our local New Jersey Senator got involved. But this is a failure of the modern state's organisation and processes.

When an exception or emergency is established it makes the politics unitary. Unfortunately Carl Schmitt's description of all this is proving to be accurate. With the establishment of the exception the politics become us and them; not the competitive, deliberative and discursive nature of liberalism. Under an exception, the 'them' can be sacrificed to the politics.

As an example, in the United States in 2002 and 2004 during the Congressional and Presidential elections which were fought under the extended exception of the Great War Against Terrorism those that disagreed with politics of the executive were painted as traiters and treasonist.

The only reason this could be claimed was because the politics became unitary, and as a consequence the liberal nature of the system was removed and the politics of the state and election became the executive's.

Obviously civil libertarians and the political opposition can fight against this but they have to do so as a 'them' not as political competitors in a liberal political system.

So the establishment of exception drains the liberal out of liberal democracy.

Fortunately exceptions tend not to be absolute and are usually contained in small areas and for short periods of time, though they often threaten to became permanent emergencies.

It is interesting to note that the electoral season in the Australian federal system has already claimed two exceptions. The first was the Indigenous issues, and now the Haneef issue. Both cases absolutely required a justified level of government involvement; but they did not justify the establishment of exception.

In the Haneef issue, where the government was right to bring him in for questioning over his association with those that committed criminal acts in the UK, once the exception was established with the Migration Act and the gazumping of the judicial, the trial ceased to be in the ordered private space of the court room and instead became a political trial where guilt is still being fought over in the public political space.

The executive, the defendant and lawyer are arguing their cases in the media, not infront of an impartial judge. The executive has made the politics unitary and has taken over the judicial component of it as a political trial. It may be that Haneef should be locked up for association with known and active terrorists, but politics is not the way to determine it, the judicial is, lest it become tyranny of the majority.

In both cases of exception discussed above the political opposition acquiesced to the government. In the case of the national emergency over indigenous issues it was as a war cabinet. In the Haneef investigations the opposition agreed with the executive. Political dissent only came from the Democrats and Greens.

Anyone who thinks this form of exception governance is limited to conservative parties is kidding themselves. While it is a form of conservative governance (ie not liberal) the Labor Party is just as capable of using it to inform governance.

An example of this is the NSW Labor Government after the Cronulla Riots which passed the Law Enforcement Amendment that enables the confiscation of property and the isolation of an area. Effectively with police checkpoints. Again the civil libertarians and the judical become the political 'other'.

However this made the politics unitary as any dissent on the emergency becomes a 'them' or enemy of the emergency. Peter Debnam's only competitive movement without becoming a 'them' was to endorse stronger prohibitions within the emergency:

The Opposition supports rushing the bill through the House, but there are some difficulties about it. Opposition members do not oppose the passage of the bill but we wish to highlight a number of concerns with it. The bill simply is not strong enough in almost all its provisions.

That is how we get ludicrous speed legislation like the Law Enforcement Amendment and the Migration Act which never fall off the books and enable future exceptions.

Exception governance, apart from being repugnant to republicanism and trashing the liberal in liberal democracy, is actually becoming the norm at all levels of government as more and more executives see the value in exception becoming "a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats"

The binary differentiator in politics is now liberalism and conservatism. Exception governance manages to remove the liberal. In an election season it limits the scope of politics that can be liberally competed over as the areas of emergency effectively rope off the politics of the emergency from competition or deliberation. Unfortunately we are seeing exceptions increasingly being used as an electoral advantage.

Update - Ken Parish commented on troppo's missing link that this post did not mention Giorgio Agamben. State of Exception gets discussed often enough on South Sea Republic that I don't always explicitly mention that connection every time. Agamben mainly explored the legal nature of a state of exception where this post tries to explore the political aspects of it and the impact on electoralism and democracy.

Roger Scruton is a political philosopher who continues a tradition of common law conservatism going back to Edmund Burke. His A Political Philosophy is a short sketch of that philosophy on various issues of the day - with the bioethical and social thought foregrounded and economic consequences a side effect. It is a book for mainline conservatives, old countryside Tories, a book where settled law and cultural convention carries weight.

It is also an environmentalist book. Scruton has recast the old arguments for conservatism in the language of twenty first century biology. Conservatism, here, is the process of preserving and enriching the social ecology; of defending it from entropy and death; from generation to generation.

With ecology at the heart of his political philosophy, it is now easier for him to break with political capitalism.

[C]onservatism is an exercise in social ecology. Individual freedom is a part of that ecology, since without it social organisms can not adapt. But freedom is not the sole or even the central goal of politics, even if it is the attribute that, at a deep level, makes politics both necessary and possible. Convervatism and conservation are in fact two aspects of a single long-term policy, which is that of husbanding resources. These resources include the social capital embodied in laws, customs and institutions; they also include the material capital contained in the environment, and the economic capital contained in a free, but law-governed, economy. The purpose of politics, on this view, is not to rearrange society in the interests of some overarching vision or ideal, such as equality, liberty or fraternity. It is to maintain a vigilant resistance to the entropic forces that erode our social and ecological inheritance. The goal is to pass on to future generations - and if possible to enhance - the order and equilibrium of which we are the temporary trustees.

There's plenty of room to disagree with Scruton on policy, but that small-c conservative regard for due process and preservation is something that underlies civilised society, and cuts across political lines. Indeed films - favourites of the left - like Twelve Angry Men or Good Night And Good Luck are basically odes to cautious preservation of the social ecology from those that would rashly attack it.

And this civilised multi-party consensus is environmentalism needs if we are to solve the problems of this century, global warming most of all. Nowadays, we are having the right environmental arguments in the public space; arguing about how best to solve the problems we have, like water, rather than denying they exist. But my sense is, regrettably, the hard heads on the right who should well know the foolishness of running up a big fiscal debt do not yet take seriously the foolishness of running up a big environmental debt.

Common law conservatism rarely appeals to philosophers, and pundits. It is inelegant. You can't understand it all. But I think it is something most Australian and British voters understand quite instinctively, when voting for John Howard or for Kevin Rudd.

This is why Scruton's approach is valuable. It links environmental duty to the civic routines of real people in working democracies.