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.

How Power Corrupts IV

Thoughts on Bryan Caplan and David Henderson’s discussion of power’s corrupting effects

Longtime readers may recall my posts trying to catalogue the various ways in which political “power corrupts, and absolute power corrupts absolutely.” I have written about power’s subtle but corrosive effects on those who wield it, even once they no longer do; about the violence that those who exercise power inflict on others; and about power’s inextricable connection with lies. I have occasion to return to this topic, thanks to a discussion between Bryan Caplan and David Henderson over at EconLog.

Prof. Caplan argues that “politicians are, by and large, evil people.” They might be well-intentioned, but good intentions are not enough:

virtuous people can’t just conform to the expectations of their society. Everyone has at least a modest moral obligation to … investigate whether their society’s expectations are immoral.

Moreover, this obligation weighs more heavily on people exercising political power:

[i]f you’re in a position to pass or enforce laws, lives and freedom are in your hands. Common decency requires you to act with extreme moral trepidation at all times.

But politicians never do that, since “[t]hey’re too busy passing laws and giving orders to face the possibility that they’re wielding power illegitimately.” Indeed, they have no incentive to exercise this moral “due diligence,” because “[p]olitical systems reward them for seeming good by conventional standards.” At best, they will “do what most people consider good.” At worst, they will just pretend.

Prof. Caplan’s point about incentives is particularly important for the inquiry into the corrupting effects of power. Even if aspiring politicians start out agreeing with prof. Caplan about the importance of questioning prevailing moral standards, they will soon abandon such questions, which are only likely to land them in electoral trouble. The quest for power and the struggle to retain it do not just allow a person’s bad sides to shine; they also mar the good ones.

(Prof. Caplan also has a follow-up post in which he discusses politicians’ propensity to lie, and ties to his argument about their being evil. It’s worth a look, but since I have already dealt with that particular topic in a prior post, I will say no more of it here.)

Prof. Henderson responds that, though well put, prof. Caplan’s case is not “compelling,” in the sense that nothing much follows from it. For one thing, “politicians aren’t equally evil. In fact, a few seem to be quite good.” And for another, prof. Henderson reminds us of the inconvenient truth that, to achieve our goals ― he speaks of liberty, but of course it is no different if you believe in “justice,” or “equality,” or anything else ― we probably have to “deal[] with politicians.” And if we want to do that, we might as well treat them respectfully, even if suspect them of actually being evil.

Turning, as I did in my first post on this topic, to The Lord of the Rings, we might call this the Gondor problem. The ring of power might be dangerous, says Boromir, but we’ve got a country to save, and we’d be silly not to use it. And note that, in a very real way, Tolkien lets himself out of this problem a little easily. His characters, other than Boromir (and the more obvious “bad guys”) forswear the use of the One Ring, to be sure, but many of them are quite comfortable with wielding the more conventional instruments of power ― notably military force ― as well as the Three Elvish rings. While we are consistently told that these instruments cannot stop Sauron, especially if he get hold of the One Ring, they are nonetheless necessary tools to allow the One to be destroyed, as well as for solving the more minor problems characters face (such as the occupation of the Shire).

The most significant exception to this trend is, tellingly, Frodo, who pointedly refuses to take up arms during “the scouring of the Shire.” Frodo is clearly engaging in something like prof. Caplan’s moral due diligence, asking himself and others whether it is permissible to engage in violence to get rid of the “ruffians” who are occupying and exploiting the Shire. But his conclusion that violence is to be avoided to the greatest extent possible, and there is to be no killing of hobbits, does not make him very popular at all. He is, we are told, more or less sidelined during the events, and is not acknowledged as “the famousest of hobbits” in their aftermath. This is, of course, in keeping with what prof. Caplan says about politicians ― and, tellingly too, Frodo never seeks public office in the Shire, unlike all of his less morally diligent (or at least more morally conventional) companions.

But while Frodo does the right thing, is he right? It is painfully clear that that his attempts to operate by persuasion alone are not enough. If the hobbits want to live in their libertarian quasi-paradise instead of the semi-socialist dystopia, they have to fight for it. The conventional morality of Merry and Pippin  leads them to what seems to be the only right conclusion, even though they fail to engage in right thought process. Perhaps this is accidental; Frodo just happened to be wrong, and his companions, right. Maybe Tolkien should have written a different book if he really wanted to be consistent in his message about the corrupting effects of power. But I’m not sure that this alternative book would have spoken to us in the way The Lord of the Rings does; that its dilemmas would have been as recognizable and as gripping.

One way in which power corrupts those who exercise it and even those who merely seek to do so is by giving them incentives to blind themselves to the possible immorality of their actions. Yet it is not obvious that there is a way to renounce the use of power completely. As in my prior posts, I conclude, therefore, with a reminder of the importance of the instruments we have developed to limit both the scope and the duration of the power any one person as able to wield. Of particular importance to this post is constitutionalism enforced by independent courts. An entrenched constitution provides a set of (partly) moral constraints on the exercise of power, which if effectively enforced ought to limit the damage that morally negligent or even wilfully blind politicians are able to inflict on those whom they govern. Like other power-constraining instruments, this one is far from being perfect, but it is better ― a good deal better, sometimes ― than nothing.

Frustrating

I am quite late on this, but I have only recently come across a post by Grégoire Webber on the UK Constitutional Law blog, arguing that the Supreme Court’s reasoning in Canada (Attorney General) v. Bedford, 2013 SCC 72, the decision striking down various prostitution-related provisions of the Criminal Code is based on flawed inferences from the fact that these provisions did not criminalize prostitution itself (i.e. the sale of sex). Prof. Webber argues that

[t]he judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law.

In prof. Webber’s view, this “unstated premise” is mistaken. That selling sex is not legally prohibited does not make it morally permitted. The Supreme Court compared the Criminal Code’s prohibitions on prostitution-related activities, which had the effect of making sex work more dangerous than it would have been in their absence, to a prohibition on wearing a helmet while riding a bicycle. The trouble, prof. Webbers contends, is that

[t]he assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

If prostitution ―unlike riding a bicycle ― is morally wrong, then it is permissible for the legislature to “frustrate [it] by indirect means,” such as the criminalization of various activities surrounding it, which is exactly what the provisions invalidated in Bedford did.

With respect, I think that this argument misses the point. The issue in Bedford is not whether Parliament ought to be able to frustrate the commission of moral wrongs by indirect means, but whether the means it had chosen were permissible.

Take an example offered by prof. Webber ― say adultery ― and assume that a legislature wants to frustrate its commission without criminalizing it. (For the sake of convenience, make it a legislature in a unitary state, unencumbered by the division of powers under the Canadian constitution, albeit subject to a bill of rights exactly like the Canadian Charter of Rights and Freedoms). The legislature could do several things. It could fund couple-therapy programmes that would (hopefully) make for happier marriages and less adultery. It could require anti-adultery education in schools. It could make a public promise of fidelity a requirement for entering into a civil marriage. It could implement rules punishing adulterous spouses in the event of a divorce, for example depriving them of property or support entitlements they would otherwise obtain. It could also amend the criminal law to provide that the killing of an adulterous spouse is not to be treated as a murder, but as justified self-defence.

The first two of these options would obviously be legally permitted, and I think there is nothing wrong with them from a broader perspective of political morality (though mandatory anti-adultery education sounds a bit creepy). They may or may not be effective, but not legally or morally problematic. A mandatory promise of fidelity may be constitutionally problematic as a violation of freedom of conscience, as I have argued here, insofar as there is disagreement in society over the meaning of marriage and the value (or interpretation) of fidelity. It would also, I think, be morally disturbing, because overbearingly paternalistic. Family law rules punishing adulterous spouses would probably not be unconstitutional, unless it is shown that their application punishes one gender more than the other, in breach of the constitutional guarantee of equality. Morally, such rules would be troubling, not least because of the perverse incentives and acrimony they would generate; even assuming that their purpose would be worthwhile, they could easily do more harm than good. Finally, I think it is quite clear that exempting the killers of adulterers from the law of murder would be both immoral and unconstitutional, no matter how effective such a measure might be at “frustrating” adultery. Subjecting adulterers, no matter how badly we think of them, to an increased risk of death would be a violation of the rights to life and to security of the person, and an entirely disproportionate one.

Indeed, so would be a rule allowing police officers to shoot persons whom they caught in the process of committing actual crimes in situations where doing so is not necessary to preserve anyone’s life or safety. That the activity a legislature seeks to frustrate is a morally ― or even legally ― prohibited one is simply not a sufficient justification for depriving those involved in the activity of certain rights.

Thus, even assuming that sex work is morally wrong ― which I do not believe (and which, as I read his post, prof. Webber might not believe either) ― Parliament is not justified in seeking to frustrate it by any means. The means it chooses, just like the means it chooses to prevent the commission of actual crimes, must still comply with the Charter, and in particular with the security of the person guarantee that was invoked in Bedford.

H/T: Paul Daly

Perverts

I would like to ask Peter MacKay, the federal Injustice Minister, some questions about the federal government’s proposal for regulating prostitution out of existence, Bill C-36. The immediate inspiration for these questions is the story of Mike Allen, a Progressive-Conservative member of the Alberta legislature, who pleaded guilty in Minnesota to charges resulting from his attempt to hire two sex workers while visiting the state. Unfortunately for him, the women to whose ad he responded were undercover police officers. Mr. Allen had had to leave the PC caucus, but his colleagues have now voted to allow him to rejoin them.

My first question is whether Mr. MacKay would be brave enough to call Mr. Allen a pervert ― which is how he described people who use the services of sex workers ― to his face, and not just to moralize in the abstract. A second, related, question is what Mr. MacKay thinks of Mr. Allen’s caucus colleagues, who presumably have concluded that his actions were not especially reprehensible. Are they perverts too? Or do they just lack Mr. MacKay’s especially fine moral judgment?

Another set of questions concerns police investigations like that which ensnared Mr. Allen, involving women officers posing as sex workers. Are such tactics going to be used in Canada, if Bill C-36’s provisions criminalizing the purchase of sex become law? If not, what in Bill C-36 makes it so? If yes, does Mr. MacKay think that this is a good thing? More specifically, does Mr. MacKay think that these tactics comport with the dignity of the officers who have to pose as prostitutes ― as persons, as women, and as police officers? Do they respect gender equality, which he purports to advance by prohibiting the purchase of sex?

In a somewhat different vein, I would also be curious to know whether Mr. MacKay thinks that it is a good idea to expend police resources on such investigations. Is it worthwhile to employ officers to lure potential consumers of sexual services? Is it a better use of their time than, say, investigating actual human trafficking or other cases where people are actually forced into sex work? Or a better use of taxpayer money than helping actual victims of such practices?

I would like to know, in a nutshell, what it is that Mr. MacKay thinks that we as a society gain by having a Mr. Allen prosecuted and condemned, except assuaging a lust for what Jonathan Kay, of all people, has described as “punitive, obsessive, politically cynical moral absolutism” ― a lust which even people who might be expected to support the government do not share (as Mr. Kay’s example shows). This lust, indeed, makes me think that the real perverts who threaten us are not the Mr. Allens of this country, but the Mr. MacKays.

 

Sex and Cigarettes

In defending the provisions of the Criminal Code relative to prostitution which the Supreme Court ultimately invalidated in Canada (Attorney General) v. Bedford, 2013 SCC 72, the federal government argued that their goal was to deter prostitution ― which, however, they did not criminalize. Presumably, given their effects, which were mostly to expose sex workers to violence from clients and pimps, these provisions were supposed to make them too afraid of sex work to keep at it. (The Supreme Court, I should note, did not accept the government’s characterization of the prostitution provisions’ purpose.)

As I wrote in discussing the Bedford decision, this is a hypocritical approach ― “[n]ot criminalizing prostitution but hoping that if we make it awful enough it will go away.” Unfortunately, Bill C-36, the federal government’s proposed response to Bedford, in many ways doubles down on this approach of hoping to drive people out of sex work by making it desperately miserable, without prohibiting them from engaging in it (although it does criminalize the sex workers’ clients). In the case of sex work, this strategy has attracted withering criticism, and rightly so.

But in at least one other context, it is deployed without any protest. When it comes to government attempts to deter smoking, hardly anyone these days thinks it wrong to disgust smokers into quitting (or to disgust potential smokers into not taking up the habit), while not banning cigarettes (and eagerly continuing  to collect taxes on them). The government requires printing disgusting graphic pictures on cigarette packaging, and it tries to prohibit tobacco products that taste like something other than tobacco. As tobacco companies try to get around these rules, scientists and advocates urge it to widen the bans, arguing that

If people are going to use tobacco, then it should taste like tobacco … It should be harsh smoke that they’re inhaling and should not be hidden in the flavours that are being added to the products.

The reasoning is an exact parallel of that which the federal government applies to prostitution. It is not very much of a stretch to imagine Peter Mackay thinking, if not saying, that if people are going to become prostitutes, they should feel like prostitutes; that it should be the fear and squalor that they’re feeling, which should not be hidden behind the comfort and safety of well-protected work environments.

Needless to say, tobacco policy does not raise quite the same sort of concerns as sex work policy does. Legally, there is a constitutional right to the security of the person, but no right to be free from disgust. At the level of morality, it is arguably less objectionable to “nudge” people through disgust than through fear. Yet the similarities between the two policies are remarkable. In both cases, the government (and advocates urging it on) seek to deter a behaviour that prevailing morality finds reprehensible (the sale of sex, the use of tobacco) not by prohibiting it, but by subjecting those who engage in it to the heavy pressure of their own negative emotions (fear, disgust).

I’m not sure if there are other examples of laws that operate in this way in Canada. (One superficially similar case, Québec’s former rule prohibiting butter-coloured margarine, was obviously motivated not by moral concerns but by the pressure of the dairy lobby.) One example that does come to mind, however, is the laws requiring one or both of the parents of a minor to be notified before she can have an abortion, which exist in a number of States in the U.S. Again, the governments of these States seek to deter what they regard as a morally undesirable practice by exposing those about to engage in it to shame and possibly fear (as well as financial and other pressures).

I am inclined to think that this approach is wrong, whether in the case of sex work, abortion, or smoking. As Jeremy Waldron’s work on the Rule of Law and human dignity emphasizes, law normally tries ― and ought to try ― to treat those subject to it as human beings, endowed with dignity and capacity for rational choice. It does not, and ought not to, treat them as objects or beast who need to be prodded around. Regulatory schemes that rely on visceral negative emotions such as fear, disgust, or shame seem to me to come close to doing that. To be sure, law often relies on a certain fear of negative consequences of non-compliance with its substantive or formal requirements (whether punishment, liability, invalidity or unenforceability, etc.). But, for one thing, it seems to me that, although the difference is difficult to put into words, the nature of this fear is not the same, and not as disturbing. Perhaps more importantly, and more clearly, the unpleasant consequences of non-compliance  are something the law explicitly tells people to avoid. There is no manipulation going on. They are also produced by the legal system itself ― by the judges who announce them, by the prison wardens and bailiffs who enforce them, and so on, not by external factors for the law purports not to take responsibility.

These thoughts are somewhat tentative, and I would welcome correction and contradiction. If I am right however, this sort of manipulation by negative emotions in the service of majoritarian morality is wrong, and we should oppose it, regardless of whether it is applied to sex work, abortion access ― or cigarettes.