Tag: Lord Acton

Mere Liberalism

A response to a common caricature of liberal beliefs

There is a rhetorical trope in contemporary critiques of liberalism and libertarianism, especially those coming from the political right, that holds it for fundamentally flawed because it conceives of individuals as “atomized”, isolated, a- or even anti-social creatures moved by no higher emotion than crass self-interest. We have even hosted one critic who made this argument as a guest on this blog.

A recent post on Law and Liberty, in which Luma Simms “reviews” Ilya Somin’s book Free to Move: Foot Voting, Migration, and Political Freedom, encapsulates this argument very neatly. I put “review” in scare quotes because, as Professor Somin points out, it misrepresents his book. But the exact same caricature is used to attack not only Professor Somin’s work, but liberalism and libertarianism more broadly; nor is it used by Mrs. Simms alone. So I think that a general response is warranted.

Mrs. Simms writes, summarizing the worldview that ― according to her ― underpins Professor Somin’s arguments in favour of greater freedom of movement and of personal choice more generally:

Man is a rational being; his actions are based on individual choice, guided only by reason; his judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture); if he acts with others it is by his choice alone; he must live by his own achievements, for his own happiness and self-interest; he has no moral duty to others. As such, man must have the political freedom to follow his self-interest to achieve his happiness. It is autonomous individualism through and through.

As a summary of the liberal worldview ― and, to repeat, many critics of liberalism use descriptions like this one in just this way ― every one of these statements is grossly exaggerated or outright false.

“Man is a rational being“

Liberalism ― and for that matter conservatism or socialism ― does presuppose a measure of rationality in human beings. There would be no point in advocating for, say, freedom of speech, the Rule of Law, or democracy if human beings weren’t rational in the sense of thinking, making and carrying out plans, responding to incentives, and seeking to act on their (physical and social) environment in ways calculated to produce consequences.

But liberalism doesn’t require or depend on complete rationality. Liberals and libertarians can acknowledge failures of rationality: Bryan Caplan is no less of a libertarian for having explored at length The Myth of the Rational Voter. Liberals and libertarians can recognize that human beings are emotional, too. Love of freedom is an emotion, and no less than love of God or love of hearth and home.

“His actions are based on individual choice, guided only by reason“

As I have just noted, liberals and libertarians know that human beings can emotional or irrational. Needless to say they also know that their choices are constrained and their actions are shaped by the circumstances ― familial, economic, cultural, environmental ― in which they find themselves. Perhaps Mrs. Simms means that liberals want, as a normative matter, to create a state of affairs where humans are free to act exactly as they choose; but they do not. On the contrary, liberals respect property rights and the autonomy of individuals, families, and voluntary associations (including businesses, churches, NGOs, etc.), which means that they will uphold private arrangements that may diminish individuals’ choices.

Now, there are difficult questions that liberals and libertarians can struggle with about private choices that radically deny individual autonomy: self-enslavement is perhaps a silly example best left to philosophy seminars, but, say, parents who refuse to provide a minimum of education or healthcare to their children are a grim reality. But of course liberals recognize that interference with the freedom of some to secure some core of autonomy to others is still interference.

“His judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture)“

I don’t think that any liberal or libertarian believes this. Yes, liberalism values independent judgment; yes, liberalism wants individuals to be free from legal compulsions of their judgment: hence its insistence on freedoms of conscience, thought, opinion, and so on. If this is what Mrs. Simms derides as liberalism’s rejection of “obligations and constraints that come from … country”, there’s something to the charge. If the critics of liberalism want “country” to introduce indoctrination and state ideology, let them say that clearly; better yet, let them spell out what they are going to indoctrinate us in (beyond platitudes about the common good), and give us a chance to decide whether we want to drink their particular kool-aid.

But as for other kinds of duties and compulsions, not only do liberals not reject them ― on the contrary, leading liberal thinkers have specifically insisted that the point of freedom is to have the ability to do one’s duty, as one sees it. Hence Lord Acton’s definition of “liberty”, in The History of Freedom, as “the assurance that every man will be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion” (3). Hence Hayek writing, in The Road to Serfdom, that

[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name.

Liberals regard obligations to family and friends, to God if one so believes, and even to country and “culture”, whatever that might be, as matters of conscience. The claim they reject such obligations is preposterous calumny. What they reject is the claim of “authority and majorities, custom and opinion” to interfere with an individual’s conscience to impose obligations of this sort when they are not felt.

“If he acts with others it is by his choice alone“

Again, it’s a bit difficult to say whether this is supposed to represent what liberals believe is the case or what liberals believe ought to be the case. But neither representation is accurate. Liberals neither deny the existence of social ties, such as those of kin, in which individual autonomy is far from complete, nor wish to abolish them. Liberals also do not deny nor, except for anarchist libertarians, wish to rid themselves entirely of collective political action, which is also involuntary as to many individuals who are forced to go along with the decisions of the authorities.

Liberals do want to provide exit opportunities for people who may find themselves bound by social ties that are or become abusive. They also want to limit the ability of majorities to impose on dissidents through the political process. But they want to do these things precisely because they recognize that human beings belong to groups, associations, and communities which they have not freely chosen and because they have no wish to abolish such groups, associations, and communities.

“He must live by his own achievements, for his own happiness and self-interest“

I don’t know many, if any, flesh-and-blood liberals or even libertarians who believe this. It sounds like a paraphrase of Randian objectivism, but I must confess that I’ve never read Rand, so I don’t know if it’s an accurate representation of her views. What I think I can assert with a good deal of confidence is that these views, if indeed she held them, are not at all representative. There just isn’t anything in classical liberalism or (non-Randian?) libertarianism that says that people must be navel-gazers, hedonists, and egotists.

To be sure, liberals acknowledge the fact that human beings are generally pretty self-interested. They have their altruistic impulses too, but they are often selfish. Liberalism’s response is to try to channel self-interest through institutions that can turn it to the greater good. The market is one such institution, as Adam Smith explained by pointing out, famously, that “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest”. And liberals try to use politics in this way too: hence Madison’s insistence that “ambition must be made to counteract ambition”.

But, to repeat, none of that precludes or condemns altruism. In trying to channel selfish behaviour for the benefit of society, liberalism certainly does not say that unselfish behaviour should somehow be disapproved of. What liberalism does insist on is that there are limits ― depending on one’s version of liberalism, perhaps very stringent limits ― on the degree to which people can be coerced into acting and living for the sake of others. But liberalism has a better opinion of human nature than those theories that apparently say that human beings will be navel-gazing hedonistic egotists (or, all manner of other unedifying things, as other critics of liberalism claim) unless forced to be virtuous by the government. (Liberalism asks: how is government going to be more virtuous than the governed?)

“He has no moral duty to others“

I won’t repeat what I’ve already said about Lord Acton’s and Hayek’s championing of freedom as the space in which individuals can understand and discharge their obligations ― not one where they have none. Let me, instead, remind you of the Lockean argument for the state. In a nutshell: individuals have inherent natural rights and a moral duty to respect the rights of others; unfortunately, left to their own devices, they are not very good at complying with this duty even when they earnestly try; an authority that can clarify the scope of individual rights and corresponding duties, and impartially adjudicate allegations of breach is necessary. A concern with moral duty is that at the foundation of liberal politics.

Again, what liberals deny, with greater or lesser vigour depending on their preferred flavour of liberalism or libertarianism, is the claim of the state to create moral duties incumbent on those subjects to their jurisdiction. If they subscribe to the doctrine of natural rights, they will say, with Jefferson, that governments are instituted in order to secure these rights, and that, therefore, the creation of duties not tending to secure natural rights is beyond their just powers. But it does not follow, and liberals do not believe, that moral duties to others cannot arise otherwise than through the state.

Let me make just two additional points. One, which follows directly from the foregoing is that critics of liberalism are often confused, or obfuscating, about its nature: it is a political, not a moral, philosophy; a theory of how political power should be organized, not of how to live a good life. Liberal political institutions (understood broadly, to include things like constitutions, laws, and courts) serve to preserve the space in which individuals ― either alone or in community with others ― seek to live a good life, as they understand it. Some liberal thinkers such as Adam Smith or even, to an extent, Lord Acton, had ideas about the good life. Being a liberal doesn’t mean taking no interest in moral questions. It only means renouncing the imposition of one’s own answers to such questions by force on others whose answers might be quite different.

The second point I’ll make here is that while I have responded to a critique of liberalism coming from the right, this critique would need only minimal adjustments to its language to be embraced by the illiberal left. The view that liberalism is nothing more than a smokescreen for egoism and selfishness is a staple of socialist doctrines going back a century and a half. The criticism of liberalism as denying social ties, and the limitations that community and belonging impose on individuals might seem newer. Indeed, many right-wing critics of liberalism are convinced that it is no different from socialism in this regard. But real-life socialist regimes were actually quite nationalistic themselves. More importantly in 2021, the ascending left considers human beings to be largely shaped by their intersecting identities, and bound by the resulting sums of privilege and oppression. They use a different vocabulary from the one that appeals to the right-wingers, but their message, and their critique of liberalism, is much the same. And, of course, it is wrong for much the same reasons.

Left and right alike criticise liberalism for its commitment to respecting the autonomy of individuals in ordering their own moral universe, based on their understanding of their place in the world and their relationships with family, community, and perhaps God. They think they can do better: give people a purpose in life and a morality which, left alone, they sometimes fail to find. But there is, and can be, no agreement on an all-encompassing morality that is not imposed by force, and as difficult as it may be to find one’s purpose without coercion, it is more difficult still to accept a purpose imposed on us by others. The others, after all, are still our fellows, albeit that an accident of birth, or the privilege of education, or the fortune of an election, or the force of a coup has elevated them to a higher social ― not moral ― station.

Thus the illiberal right and left alike are doomed to failure in their quest for a better world. As Hayek wrote, they have “nothing to put in … place” of the individualist, liberal virtues ― “independence, self-reliance, and the willingness to bear risks, the readiness to back one’s own conviction against a majority, and the willingness to voluntary cooperation with one’s neighbors”. In their place, they can only make a “demand for obedience and the compulsion of the individual to do what is collectively decided to be good”. And because they know that they cannot persuade people to abandon liberalism with such demands, they try to caricature and defame it. Do not believe them.

The Detestable Attestation

Thoughts on the federal government’s attempt to make religious groups capitulate to its views on abortion

The federal government dishes out money to various organizations to hire young people for summer jobs. But starting this year, the government decreed that there will be no money for any groups that do not

attest that both the job [for which young people will be hired] and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Despite the seeming generality (the absurd generality, as I will explain below) of this statement, the government’s focus is quite clearly on “women’s rights and women’s reproductive rights, and the rights of gender-diverse and transgender Canadians”, and more specifically on “sexual and reproductive rights — and the right to access safe and legal abortions”, which are said to be “at the core of the Government of Canada’s foreign and domestic policies”.

Predictably ― except, it would seem, for the government itself ― many religious groups, who were among the frequent recipients of funding under the summer jobs programme in the past, and whose contributions the Prime Minister himself claims to value, are objecting to this attestation. Since they do not share the government’s vision of “sexual and reproductive rights”, especially when it comes to abortions, they are reluctant to profess their “core mandate”‘s consistency with these rights. The government argues that the objectors misunderstand the point of the “attestation” ― it is enough for it that the group not be primarily anti-abortionist ― but for religious groups themselves, implying that their pro-life views are somehow not “core” is out of question. As they see it, they are being denied access to a government benefit for which they would otherwise qualify on the basis of their religious and conscientious beliefs.

They are quite right, as many commentators have already pointed out. John Ibbitson, in The Globe and Mail, equates the attestation with “making applicants sign on to a Liberal values manifesto”. In the National Post, John Ivison echoes this analysis and adds that “there is a hierarchy of rights in this country: at the apex are those rights the Liberals find agreeable, at its base are those they find abhorrent”. In a CBC Opinion piece, David Millar Haskell points out that the government’s insistence that religious organizations can sign the attestation “shows a complete lack of awareness of what it means to be ethical”, because it cannot be embraced with engaging in the “practice of equivocation and mutable morality”.  A Globe editorial points out that “[t]he Charter protects the[] freedom to dispute the contents of the constitution and its interpretation by the courts”, and that the government’s position “that arguing against a right is as bad as infringing it” is “chilling”. Writing for Policy Options, Brian Bird sums up the issue by noting that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”, instead of the “shield for citizens against the abuse of state power” that it is supposed to be.

All this, I think, is correct. Much like the Law Society of Ontario’s “Statement of Principles” requirement, the “attestation” is a values test that conditions eligibility for a public benefit on the would-be recipient’s agreement with the government. It is an obvious instance of compelled speech and, more importantly, an interference with freedom of conscience. The government cannot ask people to profess or to express particular beliefs, even as a condition of providing a benefit. The Charter was meant to break what Steven Smith (the law and religion scholar, not to be confused with Stephen Smith, the contract theorist) recently described as “the centuries-old pattern in which governments have attempted to compel dissenters or outliers to publicly affirm and acquiesce to the dominant orthodoxy” ― the government’s attempt to invoke it to perpetuate this pattern notwithstanding.

In one of the few attempts to defend the government that I have seen, Dale Smith notes that governments always channel public funding to  causes and groups whose morality they approve of, and away from others. That much is true ― and worthy of condemnation. But Mr. Smith is missing a couple of important distinctions. For one thing, there’s a difference between a completely discretionary decision to allocate funding this way or that, and using a values test to deny funding to a beneficiary who otherwise meets set criteria on which everyone is judged. And second, I think that, as Prof. Smith suggests, there is something particularly odious about governments, not content with discriminating against citizens for their views, demanding that citizens also actively express or endorse beliefs that they do not hold.

And as for the government’s claims ― supported by Daphne Gilbert in an Ottawa Citizen op-ed ― that the objectors misunderstand the attestation, they simply ignore the fact that, when it comes to religious (and, I have argued, conscientious) obligations, the state cannot tell people what theirs are. If a religious group cannot dissociate its “core mandate” from its anti-abortionist stance, neither Professor Gilbert, nor Workforce Development and Labour Minister Patty Hajdu, nor Prime Minister Justin Trudeau is entitled to tell it that it ought to be less scrupulous.

I’d like to add a few more points which I mostly have not seen made in other critiques of the federal government’s position. The first concerns the meaning and scope of the “attestation”. While a few rights are singled out ― a point to which I will return shortly ―, on its face the “attestation” requires the support of “individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights”. What does this even mean? Quite clearly, the rights one is required to support are not limited to Charter rights, but some “other” ones as well. So how about some other non-Charter protected rights? For instance, must applicants to the Summer Jobs Programme support property rights (which, though not in the Charter, are part and parcel of Canadian law)? And then, of course, there is the question of “Charter values”, which Justices Lauwers and Miller recently noted in Gehl v. Canada (Attorney General), 2017 ONCA 319 , “are not a discrete set, like Charter rights, which were the product of a constitutional settlement and are easily ascertained by consulting a constitutional text”,  [80] and which, moreover, “can easily be in conflict”. [82] In other words, the government is asking people to “attest” to their support of an indeterminate and indeterminable set of potentially contradictory rights and “values”. This is contrary not only to the freedom of conscience, but also to the principle of the Rule of Law.

All that said, while the “attestation” is seemingly extraordinarily broad, it is obvious that its true purpose has to do with the government’s support with a fairly narrow set of equality and reproductive rights described as being “at the core of” its policy. (By the way, how “core” are these things to the government’s “mandate”, actually? I’d say that they are pretty tangential to most of what it does; the government may disagree, but this of course only makes more pressing the question of how the government thinks it can define for others what their “core mandate” is.) Mr. Ivison is right to describe this approach as constructing a “hierarchy of rights”. Reproductive and equality rights are at the top; their advancement is the government’s priority. In the middle, a vast number of unknown “other rights” are ostensibly important too, but the government doesn’t seem to care about them very much. And at the bottom, as Mr. Ivison says, are those rights ― like freedom of conscience ― that get in the way of its agenda. The reason I dwell on this, though, is that this is not the first time the government has done something like this. In the context of the Court Challenges Programme, of the celebrations of constitutional anniversaries, and of proposed legislation supposed to foster Parliament’s engagement with the constitution, the government plays favourites with constitutional provisions, playing up its commitment to some while ignoring others. The government is treating the constitution not as a binding constraint, but as a political prop, to be used in order to advance its agenda, ignored when unnecessary, and overridden when inconvenient.

My concluding observations concern the reasons the government got into this mess, and the way we might avoid repetitions in the future. We have come to accept the idea, of which Lord Acton warned as a great danger in his Lectures on Modern History, of the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”. (289) In its role as promoter of wealth, the government  decides to subsidize youth employment ― having first made young people unemployable thanks to minimum wage laws that don’t account for their lack of skill and experience enacted in its capacity of guardian of morality. And then, since it is also the intellectual guide of the nation and the mainspring of progress, the government decides to use subsidies as an occasion to inculcate the proper understanding of (some) rights to those who want to receive them. As Lord Acton realized, such a government must be oppressive; it “governs, and all other things obey”. (289) While much of the criticism of the “attestation” is couched in partisan terms, as if it were a peculiarly Liberal pathology, the truth is that the view of government from which its imposition results is shared by all of the principal federal and provincial political parties, and indeed by most of the critics. To be sure, the existence of the criticism shows that one need not be a fire-breathing classical liberal to oppose government overreach. But unless we recover something of Lord Acton’s suspicion of governmental beneficence we will never do more than fight rear-guard battles against its encroachments; we will never allow ourselves to strike back at its ineradicable tendency to overreach.

Whether groups that receive funding under the Summer Jobs Programme support (its interpretation of) human rights is none of the government’s business. Citizens are not obliged to support rights ― only to respect them to the extent that they are reflected in laws that bind them, which must be clear enough for the citizens to understand what it is that they must do. It is the government’s job to comply with the constitution ― all of it, and not just the bits it likes. But to keep the government to its proper sphere, we must first remember what that sphere is.

Dark Vision

A critique of a “vision” of the courts as moral authorities.

In a post over at Slate, Omar Ha-Redye sets out what his title describes as “A Judicial Vision of Canada at 150 and Beyond“. The post is a rather rambling one, but insofar as I understand its overall purpose, it is meant to highlight the centrality of the Supreme Court to our constitutional framework, as illustrated in particular by the Court’s role in re-setting Canada’s relationship with its aboriginal peoples on a more respectful basis. Mr. Ha-Redeye opens his post by confidently asserting that “[f]or most of us today, the Supreme Court of Canada is the arbiter of the most complex questions of law, and the definitive authority for morality in our democracy.” He concludes as follows:

At Canada 150 the Charter, and the Supreme Court of Canada that enforces it, is as much of our democratic institutions belonging to us, if not even more so, than Parliament or the executive. Its autonomy, and insulation from the winds of popular change, may actually provide greater stability and greater effect to individual rights than the right to an individual vote.

In 1867, the vision of Canada could hardly be said to be a judicial one. In 2017, it’s difficult to envision a rule of law without it. [Sic]

Again, it is not fully clear what this is supposed to mean. Who are the “we” of the introduction? What is it difficult to envision “a rule of law” without? But I would like to offer a response, because Mr. Ha-Redeye’s “judicial vision” is, to me, a gloomy one ― and I say this as someone who believes in what is often disparagingly termed “judicial supremacy”.

First, this vision seems to me to reflect a certain confusion of principles, not to mention history. As I have argued here, it is a mistake to claim that the Charter and its enforcement by the courts are democratic. Asking unelected and largely unaccountable institutions to make decisions of public importance, including decisions concerning the powers of democratic majorities, is not what democracy is about; it is not “the government of the people, by the people”, although it may well be “for the people”. If “for the people were enough, then an enlightened monarch or a benevolent dictator would be able to call himself democratic too. Of course, to say that the judicial enforcement of entrenched constitutional rights is not democratic is not to say that it is bad; only that it has a democratic cost. This cost may be, and I think it is, worth incurring ― democracy, as I wrote in the post linked to above, is not the only thing that matters ― but we should not attempt to mask this cost by verbal gymnastics.

As for the Rule of Law, it would have been just as difficult to conceptualize it without a robust judicial role in 1867 as it is now. To be sure, the Fathers of Confederation did not provide protections for individual rights that were as deep or wide-ranging as those that we acquired with the Charter. But they structured the federation they were creating so as to provide some protections for individual rights. For instance, they attributed legislative powers to that order of government which was more likely to respect the rights, customs, and desires of its constituents in respect of the particular subject matter ― Parliament for criminal law, the provinces for most of private law. They set up a judiciary over which no legislature had undivided power, the better to ensure its independence. They provided special safeguards for those rights, notably in the realm of education, which they singled out for protection against legislative majorities. And they knew that these structural protections would mostly be enforced by the courts. The contrast that Mr. Ha-Redeye, like so many others, purports to draw between 1867 and 2017 is exaggerated in order to support the authority of today’s judiciary at the expense of that, not merely of our constitution’s supposedly backward framers, but of the constitution itself.

Most importantly, however, I am dismayed by the characterization of the Supreme Court as “the definitive authority for morality in our democracy”. Like Benjamin Oliphant, I suspect (and certainly hope) that the Court itself would disclaim this grandiose title. But it is distressing that a citizen of a free country thinks it appropriate to bestow it, and is convinced that many, even “most” of “us” ― whoever “we” may be ― would do likewise. In a free society, there can be no “definitive authority for morality” ― even political morality. Morality is a matter, ultimately, of individual conscience ― whether or not directed by God, religion, or anything of the sort.

Here is what Lord Acton (who did believe that conscience was a religious matter ― but I don’t think we need to agree with him on that) had to say about this, in discussing the “Beginning of the Modern State” in his Lectures on Modern History:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities. When it had been defined and recognised as something divine in human nature, its action was to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men. By that hypothesis, the soul became more sacred than the state, because it receives light from above, as well as because its concerns are eternal, and out of all proportion with the common interests of government. That is the root from which liberty of Conscience was developed, and all other liberty needed to confine the sphere of power, in order that it may not challenge the supremacy of that which is highest and best in man.

Mr. Ha-Redeye says he wants to protect individual rights, and is wary of majoritarian institutions’ failings in this regard. And yet, at the same time, he anoints another institution of the state as the definitive moral authority, thereby denying what Lord Acton saw as the very basis for individual rights in the first place ― the fact that there can be no definitive moral authorities (at least on Earth) outside of each person’s conscience. Mr. Ha-Redeye claims that states and nations, if not also majorities, enjoy “the sublime prerogative” of “the knowledge of good and evil”. But if they do, why would they not impose their views on the citizens (or rather, the subjects) ― by inquisitorial means if need be?

Now, Mr. Ha-Redeye and those who agree with him, if anyone really does, might argue that by exalting the Supreme Court as the “definitive moral authority” they do not mean to give power to the state. They may well share what I have described here as the Canadian tendency not to think of courts as being part of the state at all, but to see them as the citizens’ agents and protectors against the state. To a greater extent than I did in that post, I now think that this tendency is an error. As I said then, courts are of course different in important ways from the state’s other components in that they give individuals more opportunities to be heard. Nevertheless, they are a part of the state’s machinery of coercion, and those who forget this only increase the courts’ power over them.

To be clear, I believe that the courts have a very important role to play in ensuring that “states, nations, and majorities” cannot constitute themselves into supreme arbiters of morality; that the voice within is more important than what W.H. Auden so aptly described as “the loud, angry crowd/ very angry and very loud/ [saying] law is we”; and that the sphere of power must accordingly be confined. But the sphere of judicial power must be confined no less than the spheres of its legislative and executive brethren. The courts have no more title than parliaments or kings to the prerogative of the knowledge of good and evil. If we grant them this title, then we will well and truly have a “juristocracy”, and the rights we claim for ourselves will be no more than serfs’ boasts about the wonders of life under the heel of their beneficent lord.

State v. Conscience

Freedom of conscience, state authority, and the case of the citizenship oath

As I had already mentioned, last week I spoke at a discussion on freedom of conscience that the Runnymede Society organized at McGill on Tuesday. It was a lot of fun, and as always at McGill there were some great questions from the students who came out. For those of my readers who weren’t there though, I thought I’d post my prepared remarks. I ended up moving a few things around in the presentation, but this is close enough to the substance of what I said. Those of you who have followed my posts on the citizenship oath probably won’t find much that’s new here, but if you’ve missed them, this is a flavour.

* * *

The idea of freedom of conscience has been in conflict with state authority for as long as it existed, which is to say about 500 years. (Since it’s the Runnymede Society that has invited us here, I would have loved to say something about the Magna Carta ― but although freedom of the Church is the very first article of the Great Charter, there is nothing there about freedom of conscience, or for that matter about other “fundamental rights” protected by section 2 of its Canadian descendant. Indeed, the development of the very idea of conscience is associated with Aquinas, who was only born 10 years after the Magna Carta was issued.)

Lord Acton puts the idea of freedom of conscience beautifully and concisely. It is the belief that “the knowledge of good and evil is not the sublime prerogative of states, nations, and majorities. … Its action is to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men.” Needless to say, the man or woman who seeks to live by his or her own lights is bound to clash with the state, which wants to reserve the prerogative of defining good and evil for itself, for reasons both righteous (of which Hobbes and Locke remind us) and corrupt, of which Lord Acton does: “The passion for power over others can never cease to threaten mankind, and it is always sure of finding new and unforeseen allies in continuing its martyrology.”

The conflict is ineradicable, but the weapons by which it is waged change. We have forced the state to abandon the executioner’s sword, and we have now at our disposal the instrument of judicial review of legislation. When Henry VIII became the first monarch to demand that all of his subjects swear allegiance to him (in his newfound capacity as the head of the Church of England), Sir Thomas Moore, who refused, was beheaded. When people who seek to become Canadian citizens refuse to swear that they will “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors,” they are allowed to go to court and to challenge the requirement that they take the oath.

As some of you may know, recently a group of would-be Canadians did just that. They lost, however, both at the Superior Court of Justice and at the Court of Appeal for Ontario. The Supreme Court refused to hear their appeal. Still, we thought that it might be interesting to come back to this case, as an illustration of the conflict between the authority of the state and the conscience of individuals. The case, I should note, was litigated under the heading of freedom of expression, not freedom of conscience. But although I believe that the applicants should have prevailed on that claim too, I think that it fails to capture the really interesting and distinctive feature of the problem of the oath, which is the way in which it is tied up with conscience.

Originally, swearing an oath meant incurring a religious obligation, but the idea of an oath persists, even in a secular state, cut off from its religious roots. Any oath, as the Supreme Court has recognized, is an attempt to “get a hold” of the conscience of the person who swears it. Breaking an oath would be immoral, even if one doesn’t believe that it would result in damnation―and regardless of any criminal sanction that might follow. But an oath typically involves morality at another level as well, in that its performance is almost always a matter of moral judgment. This is not a conceptual truth―some oaths are not of that sort―but the law tends to require oaths in those situations where it cannot describe and therefore impose the obligations it would like to demand because they are vague, subjective, and ultimately appeal to the conscience of the person who is to perform them.

I’ll mention just one example other than the citizenship oath itself, drawn from the oath that you will swear when you are called to the bar. Those of you who will be called in Ontario, and perhaps in other provinces too, will swear, among other things, to “seek to ensure access to justice”. This is not a straightforward obligation. Discharging it will require you to think about just what your duties really are; a judgment that is no doubt partly intellectual, but also, to a considerable extent, moral. Ensuring access to justice is, for a single lawyer and for the profession as a whole, a matter of degree, and you must decide how far to go. Should you limit your fees? How much pro bono work should you do? Can you “ensure access to justice” while being a member of a state-enforced cartel whose raison d’être is to increase the cost of legal services? The oath does not answer these questions; there is no rule to guide you; you must figure these things out for yourselves, in conscience. What the oath does―if you take it seriously, and not just as an ancient ritual, which in fairness it might be―is it “gets a hold” of your conscience and directs you to ask yourselves some very hard questions.

Oaths of allegiance are similar in that they enlist the conscience of those who swear them; they require these persons to ask themselves what it means to be loyal to that to which they pledge allegiance, and what that duty of loyalty that they impose might require in various circumstances. The oath of allegiance is not reducible to those obligations that state imposes by law―for example with the provisions of the Criminal Code regarding treason. If it were, there would be no need for it. The reason an oath is required is that something more―namely, a moral commitment that goes beyond legal obligation―is thought to be necessary.

The people who challenged the citizenship oath―unlike, I suspect, most of those who swear it but regard it as a mere meaningless formality (myself included, I confess)―have thought about it would mean to “bear true allegiance to Elizabeth II, Queen of Canada.” They think that would mean being personally loyal to the monarch and politically loyal to the monarchy, both of which they regard as intolerable. And the courts that have passed on their claim implicitly agree that the state could not actually impose this sort of condition on acquiring Canadian citizenship. But, they have said, this is all a misunderstanding. Swearing allegiance to the Queen of Canada does not mean swearing allegiance to Elizabeth R. personally; nor does it mean endorsing the monarchy as a system of government. If only the people who are challenging the oath understood it correctly, they’d realize that it is not the sort of imposition that they imagine it to be.

Now, I take it from Philippe Lagassé, who spoke at McGill not long ago, that the courts are right as a matter of Crown law. The Queen of Canada to whom the oath refers is the personification of the Canadian state, and an entirely distinct entity from the head of the Church of England, for instance. But, I submit, the state―and keep in mind that the courts are a branch of the state―cannot have it both ways. It cannot ask people to swear an oath, and thus to work out for themselves, as a matter of conscience, what their obligations are, and then turn around and say that those who have done this exercise got the answer wrong. The state can impose legal obligations by statute, in which case people’s misunderstanding of the law cannot ground a constitutional challenge to it, as the Supreme Court has held in Khawaja. A statute merely tells you what to do or not to do; it does not have anything to do with your conscience. But if the state, instead of enacting a statute, exacts an oath, and thus appeals to conscience, must respect the conscientious judgment of the people whose morality it seeks to enlist. In this instance, it means that the courts should have recognized the burden on the persons who challenged the oath to the Queen, and required the state to justify the imposition of this burden under section 1 of the Charter.

I don’t have the time to go through the complete section 1 analysis, which is unfortunate because there is a lot to say there, both about the futility of loyalty oaths generally and about the defects of ours in particular. I’ve gone over that in more detail in an article. I will only make one point that has to do directly with freedom of conscience. At the last stage of the Oakes justification test, we have to consider the impact of the infringement on the claimant. If we think only of the oath’s infringement of freedom of expression, as the Ontario courts have done, that impact is very limited. But if we consider the oath as an enlistment of the conscience of those who swear it for the rest of their lives, it is, I believe a rather more serious business.

Ultimately, the Canadian state does not care very much about the oath it exacts from its new citizens. One of the people who had challenged the oath to the Queen withdrew from the proceedings, swore the oath, and became a citizen. He then proceeded to write to the government telling it that he recanted the oath he just swore. The government wrote back saying that this didn’t matter. Now imagine, for a second, that you are testifying in court, and decide to tell the judge that you recant your oath to tell the truth ― and the judge tells you that this is fine, and just go on. Still, it is a reminder of the conflict between conscience and authority ― even if authority may not be inclined, in this instance, to fight as hard as it once did.

* * *

In case you want to see more of my thinking on the matter of the citizenship oath, the paper I mention above is here. As for the Lord Acton quotes, they are drawn from his magnificent Lectures on Modern History.

How Power Corrupts III

I have already touched on the issue of the meaning of Lord Acton’s dictum, that “power corrupts and absolute power corrupts absolutely.” I have invoked J.R.R. Tolkien’s treatment of the pernicious influence of power on those who once wield it even once they relinquish it, and discussed Mikhail Bulgakov’s claim that “all power is violence done to people.” Boris Schumatsky’s article on the lies of Vladimir Putin, of which I posted a translation yesterday, gives me an occasion to continue on this topic, because it suggests an additional way in which “power corrupts” that was missing from my earlier posts ― that power is inextricably linked with deceit. (I should specify that in this post,  I am referring only to misrepresentations of existing facts, not to broken promises, the subject of an op-ed by Andrew Coyne this morning. Mr. Coyne makes an impassioned plea for treating them as lies and finding ways for eliminating them, but while some of his arguments are quite compelling, I think the issue of promises is both different from that of misrepresentations of fact and perhaps more complicated than Mr. Coyne allows.)

Of course this is not a very original idea. Its best-known literary treatment is surely George Orwell’s Nineteen Eighty-Four. Still, since I’ve taken upon myself to catalogue the corrupting effects of power, it deserves to be reiterated here. Besides, Mr. Schumatsky hints at a reason to think that, as Kurt Vonnegut would have said, Nineteen Eighty-Four isn’t enough anymore. The regime’s lies in Nineteen Eighty-Four had to be backed up by an elaborate and brutal apparatus that eliminated any idea, whether in print or in anyone’s mind, that was contrary to them. As Mr. Schumatsky shows, that’s not actually necessary. Truth need not be wholly suppressed. It can simply be swamped by lies, made into one of many competing narratives, until people give up trying to figure out where the truth is. That is why, Mr. Schumatsky says,

[t]he Kremlin doesn’t really aim at people believing its lies. Putin wins when other heads of government let the lies stand uncontradicted. Putin surely knows that at least some politicians see through him. But: they don’t call a con a con, nor an invasion an invasion, nor a hybrid war a war. … When the truth is absent, the lie wins.

The result looks a great deal more benign than Ingsoc, but it is still very effective at getting the liars into power and keeping them there. And importantly, it is not only Mr. Putin who resorts to this tactic. Politicians in the West who mislead or lie to voters about crime, climate change, immigration, or globalization might not care if people don’t quite believe them (though they’re surely happy if they do). It is enough for them to create the impression of competing, equally plausible narratives, to justify acting, or not acting, as if the one they prefer is true.

The desire to gain or to keep power, so eloquently described by Tolkien, creates the temptation to lie. So does the fear of losing power, described by Bulgakov. But Orwell illustrates, and Mr. Schumatsky explains, a further point: power gives one the means to lie effectively. In Mr. Schumatsky’s words, when “[e]ach player has his own truth, or even truths, which he freely adjusts according to need … only one thing matters: who is strong enough, to impose his truth on his opponent?” This too is something that politicians in the West are well aware of, as they show whenever they exploit the power of the incumbency and the resources of the state to support and impose their own “narratives,” regardless of their relationship to truth.

The other link between power and lies, to which Mr. Schumatsky points with his concluding quotation of Solzhenitsyn, has to do with violence. If, as Bulgakov suggested, power is violence and if, as Solzhenitsyn claimed, violence and lies are inseparable, then power too is necessarily concealed and upheld by lies. And indeed, we know these lies very well, from the attempts to deify the rulers or the claims that their authority has a divine blessing, to the mythologies of nationalism, to the claims of a supposedly universally acceptable social contract. Lord Acton again, in his Lectures on the French Revolution, made this point with his usual eloquence:

The strong man with the dagger is followed by the weaker man with the sponge. First, the criminal who slays; then the sophist who defends the slayer.

Political power might be ineradicable; or, at any rate, it is at least possible that we are much better off with it than without it. But that doesn’t change the sad fact that those who seek it, those who wield it, and those who justify it will all be tempted to lie, and that at least most of them will succumb to the temptation. This too is how power corrupts.

I want to end on a (somewhat) more optimistic note, however. As I have observed in my previous posts, democracy and the Rule of Law provide mechanisms that check, although they cannot eliminate, the corrupting effects of power. When politicians lie, their parliamentary opponents, as well as journalists, can call them out on it. In many cases, they have an incentive to do so. In some cases, courts too can serve as mechanisms and fora for “setting the record straight.” Even by simply ensuring that laws are applied according to their terms, without favour or abuse, courts limit the scope for official lies. All these mechanisms are liable to misuse and abuse. Courts can be dragged into political disputes, undermining their independence; freedom of speech serves those who want to spread lies as well as those who want to counter them. But they are the best we’ve got, and it is for us to put them to the best use we can.

How Power Corrupts II

In my last post, I used The Lord of the Rings to explore the meaning of Lord Acton’s dictum ― “power tends to corrupt and absolute power corrupts absolutely.”  There is another novel, similar in many ways, though perhaps not superficially, to The Lord of the Rings, from which we might also learn something about the corrupting effects of power. It is Mikhail Bulgakov’s The Master and Margarita. 

For those who have not read it, The Master and Margarita is a double narrative. The main story is that of the devil’s visit to Moscow one spring week in the early 1930s, and that of two lovers whose paths he crosses, the Master and Margarita of the title. But within the main story there is a second one, ostensibly a novel that the Master has written, about Pontius Pilate and Yeshua Ha-Nozri, Jesus, which takes place one spring week 19 centuries earlier.

The crucial sentence about power is uttered by Yeshua as he is being interrogated by Pilate:

All power is violence done to people. There will come a time when there will be no power, neither that of the Caesars nor any other. Man will pass into a kingdom of truth and justice, where there will be no need for power.*

These are the words which earn Yeshua his death sentence. By the time he uttered them, Pilate, though initially hostile, was becoming convinced of his innocence and inclined to let him go. No longer. Pilate is now much too afraid that any leniency towards what might ― and, in the paranoid climate of the reign of Tiberius, inevitably will ― be interpreted as treason and lèse-majesté. Pilate thunders “[t]here has never been, there is not, and there never will be a power greater or better for men than the power of emperor Tiberius!” ― and goes on to sign Yeshua’s death warrant.

Pilate’s behaviour illustrates one corrupting effect of power ― the fear it breeds, in both those who wield and are afraid of losing it, and in those who are subject to and are afraid of being crushed by it. Pilate represents power, and power always worries about it challengers. Pilate is also subject to the absolute, unforgiving, vicious power of the emperor. And, though fearless in battle (as indeed he makes a point of telling us), he is scared out of his wits, and condemns a man whom he knows to be innocent, only to go on and say, desperately, that “cowardice is the worst of all the vices.”

But Yeshua’s words point to another form of corruption that power works. Power, he says, is violence. And violence corrupts the person who engages in it. It is often said that the death penalty demeans not only the person being killed, but also, albeit in a somewhat different way, the executioner (just by way of example, see the famous words of Justice Blackmun, in Callins v. Collins, 510 U.S. 1141 (dissenting from denial of certiorari): “The path the Court has chosen lessens us all.”) And the death penalty is, of course, only the most extreme form of the violence that the state can inflict on a human being, and that it will inevitably inflict on human beings. The exercise of power is, inevitably, the exercise of coercion, which stains or takes something (innocence? kindness? the capacity for empathy?) from the person engaged in it.

And it will not do to argue that some exercises of power at least are legitimate, say because they conform to some theory of justice that reasonable people ought to accept. Never mind that reasonable people disagree about what such a theory of justice might look like, to the point that, as Jeremy Waldron once put in during a seminar, “we have theories of justice coming out of our ears.” Suppose there were such a theory. But the fact that reasonable people ought to accept it doesn’t change the fact that some people are not reasonable, and the best and most just power will still be doing violence to them. This is not to say that we can or ought to get rid of power altogether. The kingdom of truth and justice which Yeshua expected has not come, and so far as we can tell is not about to. But the fact that the exercise of power is necessary does not negate its corrupting effects.

That said, it is also true that these effects can be reduced and checked. Limiting the time during which one is able to exercise power is one way of doing so. Limiting the scope of power any one person is able to exercise is another. Subjecting power to law is a third. As some Rule of Law theorists, especially prof. Waldron, argue, the subjection of power to law makes it more respectful of human dignity ― less brutal, less violent. Good law, no more than good intentions or a good heart, does not fully protect against the corruption that power works. But it just might make the evils we must put up with tolerable.

* The translation is my own; the word Bulgakov uses, власть, can mean either “power” or “government.” It is also the word which is used to render Lord Acton’s dictum in Russian.

UPDATE: I have just come across a sentence by David Post, in this article, which very nicely captures what I have been trying to say about power and violence:

“Collective action,” … is another way to denote the use of coercive force to bind some portion of the polity to act in ways that others think necessary for the common good. (1458)

How Power Corrupts

Over at Bleeding Heart Libertarians, Bas van der Vossen has a post asking what is it exactly that we mean when we say, with Lord Acton, that “[p]ower corrupts and absolute power corrupts absolutely.” As he shows, the meaning of Lord Acton’s dictum is not quite clear. Prof. van der Vossen suggests three possibilities ― each of them, in his view, unsatisfactory.

One is that “to say that power corrupts is to say that power makes people worse persons.” But does it? People might lose their idealism in power, and might act badly while wielding power ― but “[t]he corrupting effects of power seem to disappear once the power goes as well.” They seem not to become permanently worse individuals. Another possibility is that power only gives people an opportunity to act on their bad impulses and desires ― whether we all have those or power actually attracts those who have more than their fair share. But if so, then power doesn’t actually corrupt ― it only reveals pre-existing rot. Finally, it might be that power “invokes and amplifies various psychological biases and heuristics in ways that are dangerous.” It neither makes people worse nor merely reveals their bad sides ― it “strengthen[s] the worst in us.” But this seems to be a “limited” sort of corruption, and it’s not clear what “absolute power corrupts absolutely” might mean in this context.

Yet, as prof. van der Vossen says, “[m]ost people think [Lord] Acton touched upon something of real importance.” Why? To help us understand, we could do worse than to turn to The Lord of the Rings, which is, in no small part, a meditation on the corrupting effects of power ― and which, probably not coincidentally, also happens to have mass appeal. And to understand The Lord of the Rings, and Tolkien’s thinking on the ill-effects of power, we could do worse than to turn to Tom Shippey’s book J.R.R. Tolkien: Author of the Century. (Seriously, it is a fantastic book. If you like Tolkien, read it.)

Prof. Shippey notes that Tolkien’s critics have argued that, although the Ring of Power is said  to “turn[] everything to evil, including its wearers, [so that] no one … can be trusted to use it” (114), some characters ― Frodo, of course, but also Bilbo and Sam ― do in fact use it, without apparent ill-effect. This point is similar to prof. van der Vossen’s objection to the “power makes you a worse person” interpretation of Lord Acton’s dictum.

Prof. Shippey’s response to it is to say

that the use of the Ring is addictive. One use need not be disastrous on its own, but each use tends to strengthen the urge for another. The addiction can be shaken off in early stages (which explains Bilbo and Sam), but once it has taken hold, it cannot be broken by will-power alone.

As with the Ring, so with other forms of power, including political power. Politicians, in democracies, do not wield that much of it ― they are restrained by the law, by public opinion, by interest groups, and so on.  And then, more often than not, they are forced to leave office, whether by term limits, by the voters, or by rebels in their own parties. So, like the Hobbits who only use the Ring a few times, they do not really become addicted; addiction might start (as it does in Sam, when, having put on the Ring, he briefly fantasizes about being “Samwise the Strong, Hero of the Age”), but it can be stopped in its tracks when the politician leaves office.

Another point that is relevant here is that, as Tolkien and prof. Shippey make clear, it matters how one gets and uses the Ring. Gollum gets it by violence, and he is unquestionably “corrupted”, terminally so as it turns out, though even he, when weaned off of  his addiction, shows signs of becoming a somewhat better person. Bilbo, by contrast, starts his ownership of the Ring by taking pity on Gollum, which Frodo later does too. The suggestion is that pity and kindness make a person more resistant to the corruption of the Ring, though not impervious. Note that it is not good intentions that matter. Gandalf and Galadriel tell Frodo that their good intentions would be of no avail against the Ring’s ill-effects, and Boromir demonstrates it. What matters is actual kindness “in the moment.” (Bilbo surely, and Frodo almost certainly, had no far-reaching intentions at all when they each took pity on Gollum.)

This too, I think, is relevant to politics. It seems plausible that those politicians who are fundamentally decent and kind people ― not those, mind you, who are full of intentions so good that the end justifies the means! ― are less subject to the corrupting effects of power ― but that does not mean that they escape them altogether.

For a further point to be made here is that it is not the case that, as some critics whom prof. Shippey discusses have contended, the “good guys” emerge unscathed from the War of the Ring. And, in particular, we know that all those who have worn and used the Ring are in need of healing. Bilbo and Frodo go to the Undying Lands, and Frodo tells Sam that his “time will come” too. Frodo, to be sure, was hurt in a physical sense, during the fight on Weathertop, and also by Gollum. But Bilbo and Sam weren’t, yet they also must go. They are not corrupt if we take corrupt to mean “evil,” but they are if we take it to mean “broken” ― which, indeed is what the etymological meaning of the word ‘corrupt’ is (according to the OED, it ultimately derives from the from the Latin cor– “altogether” and rumpere “break”). Yet note that Sam doesn’t realized that something is wrong with Frodo ― he is shocked when Frodo tells him he is about to leave. And he certainly doesn’t think that there is anything wrong with himself.

And similarly, it is not all that clear that politicians are not corrupted by their exercise of power. Of course, as prof. van der Vossen says, a politician who authorized espionage programmes will not, in retirement, go about snooping on his neighbours. But that does not mean that “the corrupting effect of power … disappear once power goes.” They are more subtle than that. A retired politician might not be particularly nosy, but how many of them are anywhere near as idealistic as they were when they took office (not all are, of course, even then, but many are). How many of them are not somewhere on the way to accepting that the end justifies the means? Decency, humility, and limits on the power one gets to wield limit the corruption, but they probably do not eliminate it.