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  • rmacculloch

Aotearoa vs NZ: are Functional Overlapping Competing Jurisdictions the way to go?

Our country may be descending into the abyss of Aotearoa versus NZ. Interpreting the Treaty in one's own preferred way has become excruciating tedious - an exhausting road to nowhere. It has become an irrelevant quest anyhow - it doesn't even matter. What matters is how to answer the question, "What is the best constitutional arrangement for this country to serve the interests of Māori and non-Māori in the future?". Sunk costs are irrelevant.

History tells us that what typically happens to a country when two rival groups both believe they have the right to exercise sovereignty over the same territory is civil conflict. It may be avoided when one side, like the Scots, claim sovereignty over a geographically definable territory. In Scotland's case, it has a border with England. Should the Scottish Parliament get full jurisdictional independence, then things may work out - since they are able to govern their own territory whilst the English govern theirs. However that can never be the case here.

For the purpose of avoiding conflict arising from our kind of situation, a Swiss economist, Bruno Frey, who is ranked around 100th in the world in the subject, has rejected the idea of one government having monopoly powers over making laws. Just as we have choice over who to buy from in competitive markets, Frey thinks there should also be choice & competition when it comes to those who supply the rules that govern us. Federalism is one way to achieve that competition. Elon Musk became so fed up with the rules and laws in California that he has moved many of his businesses out, to the State of Texas. However, to take advantage of Texas' laws, Musk's businesses must physically move to Texas. To avoid this issue, Frey has touted the idea of "Functional, Overlapping Competing Jurisdictions" (FOCJ). You may think its a ridiculously technical name, but that's where resolving a situation where two sides claim sovereignty over the same territory takes you.

Frey states, "FOCJ need .. not have a monopoly over a certain area of land. This concept therefore completely differs from archaic nationalism with its fighting over pieces of land. It also breaks with the notion of federalism that units at the same level may not overlap". For example, there may be FOJC offering the "function" of school services. These may operate in the same territory & so "overlap". They would "compete" with one another. Each FOJC is free to set its own rules & taxes. You choose which to belong to. A related article (below) argues that "By allowing ethnic groups to organize areas important to them regardless of their geographic distribution, functional, overlapping & competing jurisdictions have an important role to play in the management of ethnic conflict in plural societies. The functional devolution of powers which is intrinsic to FOCJ may be preferable to territorial devolution when minority groups are spatially dispersed or, when they are geographically concentrated but are in a numerical minority in their region".

This idea is sometimes called "radical libertarian" as it would subject governments to competition within their existing jurisdiction. It's probably too libertarian even for those libertarians who support the ACT party. Furthermore, most economists doubt the operability of functional, overlapping, competing jurisdictions. Which means that the sovereignty debate we've been having becomes pointless since there is no solution to it.



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