{"id":2438,"date":"2017-08-04T12:12:37","date_gmt":"2017-08-04T12:12:37","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2438"},"modified":"2018-08-31T18:45:43","modified_gmt":"2018-08-31T18:45:43","slug":"the-courts-are-not-supreme-arbiters-of-morality","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/the-courts-are-not-supreme-arbiters-of-morality\/","title":{"rendered":"The Courts are not Supreme Arbiters of Morality"},"content":{"rendered":"

In a post over at Slate, Omar Ha-Redye sets out what his title describes as \u201cA Judicial Vision of Canada at 150 and Beyond<\/a>\u201c. 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\u2019s role in re-setting Canada\u2019s relationship with its aboriginal peoples on a more respectful basis. Mr. Ha-Redeye opens his post by confidently asserting that \u201c[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.\u201d He concludes as follows:<\/p>\n

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.<\/p>\n

In 1867, the vision of Canada could hardly be said to be a judicial one. In 2017, it\u2019s difficult to envision a rule of law without it. [Sic<\/em>]\n

Again, it is not fully clear what this is supposed to mean. Who are the \u201cwe\u201d of the introduction? What is it difficult to envision \u201ca rule of law\u201d without? But I would like to offer a response, because Mr. Ha-Redeye\u2019s \u201cjudicial vision\u201d is, to me, a gloomy one \u2015 and I say this as someone who believes in what is often disparagingly termed \u201cjudicial supremacy\u201d.<\/p>\n

First, this vision seems to me to reflect a certain confusion of principles, not to mention history. As I have\u00a0argued here<\/a>, it is a mistake to claim that the\u00a0Charter<\/em>\u00a0and 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 \u201cthe government of the people, by the people\u201d, although it may well be \u201cfor the people\u201d. If \u201cfor 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 \u2015 democracy, as I wrote in the post linked to above, is not the only thing that matters \u2015 but we should not attempt to mask this cost by verbal gymnastics.<\/p>\n

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\u00a0Charter<\/em>. 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 \u2015 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\u2019s judiciary at the expense of that, not merely of our constitution\u2019s supposedly backward framers, but of the constitution itself.<\/p>\n

Most importantly, however, I am dismayed by the characterization of the Supreme Court as \u201cthe definitive authority for morality in our democracy\u201d. Like\u00a0Benjamin Oliphant<\/a>, 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 \u201cmost\u201d of \u201cus\u201d \u2015 whoever \u201cwe\u201d may be \u2015 would do likewise. In a free society, there can be no \u201cdefinitive authority for morality\u201d \u2015 even political morality. Morality is a matter, ultimately, of individual conscience \u2015 whether or not directed by God, religion, or anything of the sort.<\/p>\n

Here is what Lord Acton (who did believe that conscience was a religious matter \u2015 but I don\u2019t think we need to agree with him on\u00a0that<\/em>) had to say about this, in discussing the \u201cBeginning of the Modern State\u201d in his\u00a0Lectures on Modern History<\/em><\/a>:<\/p>\n

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.<\/p>\n

Mr. Ha-Redeye says he wants to protect individual rights, and is wary of majoritarian institutions\u2019 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 \u2015 the fact that there can be no definitive moral authorities (at least on Earth) outside of each person\u2019s conscience. Mr. Ha-Redeye claims that states and nations, if not also majorities, enjoy \u201cthe sublime prerogative\u201d of \u201cthe knowledge of good and evil\u201d. But if they do, why would they not impose their views on the citizens (or rather, the subjects) \u2015 by inquisitorial means if need be?<\/p>\n

Now, Mr. Ha-Redeye and those who agree with him, if anyone really does, might argue that by exalting the Supreme Court as the \u201cdefinitive moral authority\u201d they do not mean to give power to the state. They may well share what I have described\u00a0here<\/a>\u00a0as the Canadian tendency not to think of courts as being part of the state at all, but to see them as the citizens\u2019 agents and protectors\u00a0against<\/em>\u00a0the 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\u2019s other components in that they give individuals more opportunities to be heard. Nevertheless, they are a part of the state\u2019s machinery of coercion, and those who forget this only increase the courts\u2019 power over them.<\/p>\n

To be clear, I believe that the courts have a very important role to play in ensuring that \u201cstates, nations, and majorities\u201d cannot constitute themselves into supreme arbiters of morality; that the voice within is more important than what W.H. Auden so aptly\u00a0described<\/a>\u00a0as \u201cthe loud, angry crowd\/ very angry and very loud\/ [saying] law is we\u201d; 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 \u201cjuristocracy\u201d, and the rights we claim for ourselves will be no more than serfs\u2019 boasts about the wonders of life under the heel of their beneficent lord.<\/p>\n

 <\/p>\n

This post was previously published on Double Aspect<\/a>, Mr. Sirota’s award-winning blog<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

In a post over at Slate, Omar Ha-Redye sets out what his title describes as \u201cA Judicial Vision of Canada at 150 and Beyond\u201c. 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 …<\/p>\n","protected":false},"author":1256,"featured_media":2439,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[107,244,86,129,128,62,352,126,319,318,316,315,374],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2438"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2438"}],"version-history":[{"count":2,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2438\/revisions"}],"predecessor-version":[{"id":2441,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2438\/revisions\/2441"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/2439"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2438"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2438"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}