Angela Nagle, Kill All Normies: The Online Culture Wars from Tumblr and 4chan to the alt-right and Trump. Alresford, England: Zero Books, 2017. 120 pages.

It is easy to have dark, foreboding intuitions about what apocalyptic movements might be developing on the internet and social media. It is far harder to observe the birth processes of those rough beasts slouching towards Twitter to be born.

Of course, this is the nature of the development of extremist movements. To any outside observer, the 1903 Congress of the Russian Social Democratic Labour Party would have presented nothing more than serious men in beards arguing incomprehensibly over party organization and dialectical materialism. Nor would watching angry veterans get drunk in Bavarian beer halls in 1921 have been much more enlightening about the threat to civilization steeping there.

It would have been helpful, when 20th-century totalitarianism was developing, to have someone like Irish journalist Angela Nagle around. The author of Kill All Normies: The Online Culture Wars from Tumblr and 4chan to the alt-right and Trump is a sensitive and critical observer with the stamina to wade through enormous quantities of dreck. She has studied the tiresome and combative worlds of the online alt-right and identitarian left, managing to balance empathy, analysis and common sense. With the election of Donald Trump, her Marxisant publisher Zero Books recognized that this research was onto something big, and rushed to get this book out. In some places, the hurry shows: names are misspelled, minor errors abound and some chapters seem more finished than others. But overall this is an indispensable work of reporting and analysis.

Nagle starts by situating the dystopic worlds she is about to talk about in the recurrent “cyberutopianism” that periodically characterizes discussions of new communications technologies. The likely ur-text of cyberutopianism is John Perry Barlow’s 1996 Declaration of the Independence of Cyberspace,1 which announced to the “Governments of the Industrial World, you weary giants of flesh and steel” that they had no sovereignty in the pure land of cyberspace, a “world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth,” in which the only law would be the Golden Rule.

In her first chapter, Nagle points to how this trope of cyberutopianism, despite apparently being buried by the absurdities of the dot-com era, was revived around 2011 with the Arab Spring and Occupy movements. She documents romanticization of the “leaderless network” enabled by technology, pointing out that this ideology disabled Occupy from taking on either programmatic form or tactical flexibility. She then turns to the development of the current online right. Kill All Normies shows more compellingly than any other book I am aware of how a nerdy male online subculture oriented toward video games became an increasingly dangerous alt-right.

Nagle describes an older generation of paleoconservatives around Pat Buchanan, who have long viewed politics as a battleground of racial and religious identity and despised the neoconservative project of turning the United States into a “proposition nation” in which anyone, regardless of religious or ethnic background, could be American so long as they believed in free markets and the Declaration of Independence. For the neoconservatives, this possibility was precisely what made the United States superior to “Old Europe.” For the “paleocons,” America is and should be a nation rooted in a white Christian majority, threatened as much by economic globalization and the neoconservative project of “perpetual war for perpetual peace” as by the identity politics of minorities.

The Buchananites recognize their dilemma in supporting a white, Christian American identity that is tied to capitalism and to the valorization of the U.S. military. In Nagle’s Marxist analysis (which many Buchananites share), the traditional white Christian identity of the United States is among the apparently solid things that the logic of capitalism “melts into air” in favour of the depersonalized logic of market exchange. Although Nagle does not point this out, the U.S. military serves both as a critical cultural marker for the white working class culture the Buchananites champion and as the backstop for the liberal, global order they despise. The paleocons share with the identity left a belief that universal, Enlightenment norms of liberalism and modernism are deeply deluded, and indeed view themselves as warriors in an identity struggle for America’s traditional majority.

The Buchananites have been purged by the mainstream right a number of times, most recently during the Iraq war. But they developed a presence online and a policy of “no enemies to the right” – including the small fascist groups that have always existed in America.

The “alt-right” as we now know it comes from a meeting of these Buchananite intellectuals and pseudo-intellectuals with a younger generation marinated in the hypermasculinist subcultures of video gamers and “pick up artists” (men who claim to study techniques for sexual success). The match is hardly a natural one.The denizens of 4chan do not live traditional Christian lives but delight in a deracinated, pornography-centred lifestyle and a nihilistic will-to-power worldview. In Nagle’s analysis, they are the product of the cultural left’s traditional valorization of “transgression” and irony. Nagle describes how the gamer subculture interacted with the “manosphere,” a “leaderless network” of men trading complaints about women, pop evolutionary psychology theories and tips on how to be sexually successful in the Hobbesian 21st-entury dating market. The “manosphere” shades into a “race realist” (i.e. racist) subculture, which focuses these psychosexual anxieties on concern about lack of fertility among white women.

Nagle documents the bizarre “gamergate” controversy, in which a feminist game designer who created “Depression Quest” (described by Nagle as “a terrible game featuring many of the fragility and mental illness–fetishizing characteristics of the kind of feminism that has emerged online in recent years”) was repeatedly threatened with rape and death and harassed in real life and online. This criminal behaviour represented only an extreme example of the treatment regularly visited on women who for some reason inspire the ire of male internet “trolls.” As Nagle pointed out before the world became aware of it with the deadly riots in Charlottesville in August 2017, at the far fringes of this movement are individuals clearly primed for terrorist violence. At the same time, they (apparently with some assistance from Vladimir Putin’s FSB) constituted the “troll army” supporting Donald Trump in the 2016 election.

Nagle’s account combines clear-headed journalistic description of these dangerous developments with an analysis that goes beyond moral denunciation – one that clearly has Marxist provenance but avoids academic jargon. I appreciate her account of how the cultural production of “irony” can allow plausible deniability and how “transgression” can easily lead to reactionary politics. Her analysis of how the logic of 21st-century capital is undermining structures of family, nation and race that were central to the development of capitalism is hardly novel, but is used nicely. From Nagle’s perspective, neither the centre nor the left is providing a positive vision to young white men threatened by demographic transition, transactionalized sexual relationships and the loss of meaningful masculine work. 4chan does not purport to have any answers to these developments either, least of all a traditional religious one, but like a dematerialized Munich beer hall it provides a sense of identity and agonistic struggle.

The other virtual subculture Nagle reports on is left-Tumblr, the “microblogging” home of gender fluidity. As with the racist-masculinist-nationalist right, there is nothing new about the transgender subculture. Drag queens were instrumental in the 1969 Stonewall riot that was a seminal event in the development of the modern gay rights movement. The idea that gender is distinct from biological sex, and more fluid and performative, has been part of feminist theory since Simone de Beauvoir’s 1949 The Second Sex and is the fundamental theme of Judith Butler’s 1990 Gender Trouble. What is new is Tumblr as the “subcultural digital expression of the fruition of Judith Butler’s ideas.”

According to Nagle, there are now literally hundreds of genders being expressed on Tumblr, from Ambigender (“a feeling of two genders simultaneously, without fluidity”) to Xirl (identification as a non-binary girl or nonbinary girl-adjacent). It is easy to be put off by the jargon inherent in these explorations, but in many ways gender-identity Tumblr is the ultimate expression of Barlow’s claim that cyberspace could liberate people from the matter- and history-bound hierarchies of “meatspace.” There can be no doubt that this has been a truly liberating experience for many people faced by stigmatization and seeking social solidarity.

As a leftist, Nagle does not want to deny this and certainly expresses solidarity with people feeling stifled by gender conformity (or who are part of other groups that have found networks and identity online). But she notes that “amid all the vulnerability and self-humbling, members of these subcultures often behaved with extraordinary viciousness and aggression, like their anonymous Pepe-posting counterparts behind the safety of the keyboard.”

“Pepe the Frog” is a cartoon mascot of the “race realist” alt-right, so Nagle is drawing a parallel that is in many ways unfair. The identities found on Tumblr can be life-changing in positive ways, while the same can obviously not be said for awkward white males radicalized by 4chan or the manosphere into politicized bigots. Gender-fluid Tumblr is not known for death and rape threats. But it certainly is known for calling out individuals for humiliation and shaming. Examples of mob behaviour and fanaticism include a widely-followed Twitter user “Brienne of Snarth” who criticized a grieving father of a toddler killed by an alligator in 2016 for “white privilege.”

Nagle introduces the concept of a “scarcity of virtue.” Status can be gained by self-righteously or snarkily denouncing others for racism, sexism, homophobia or transphobia. Many minor celebrities built followers on Tumblr or Twitter by doing just this. But they can, in their turn, be exposed for the same sins by those with a more secure position of intersectional virtue. The dynamics are familiar to people who have encountered left-wing sectarianism in the predigital age, or to those aware of the Christological debates of the fourth century.

But the immediacy of social media does seem to spread moral panics faster and make for astonishing victims. Nagle points to campaigns against feminist icon Germaine Greer and gay activist Peter Tatchell. Secular ex-Muslims have been particularly targeted. While progressives are vulnerable to these tactics, alt-right performance artists like Milo Yiannopoulos made careers out of provoking “social justice warriors,” generating publicity and material rewards from right-wing fans (in Yiannopoulos’s case, until he went over the line in making supportive comments about relationships between pubescent boys and adult men).

One question I have about Nagle’s story here is whether what she is describing is simply the inevitable excesses of an essentially beneficial movement for greater social inclusion. Every reform movement, including those we all commend in retrospect, has had ideologues and enforcers, and has inspired backlash in the broader society – which rarely wants to be disturbed. It is easy to imagine oneself as an abolitionist or fighter for women’s suffrage in the early days of those movements, but it is quite possible we would have found them – as most of their contemporaries did – to be tiresome, self-righteous monomaniacs.

On the other hand, we also have the examples of the Jacobins, Communists and left-wing terrorist groups to show that egalitarian ideology can be consistent with a soul-destroying militant conformism and authoritarianism. I suspect that gender fluidity and intersectionality are unlikely to lead to anything beyond the occasional overreaction and waste of energy, since they seem inherently implausible as a basis for real political power. But it is hard to know.

Nagle points to the revival of a class-based economic left as a way out of the clash of right and left identity politics. This is not a new idea: reading Second International Marxists, it is hard not to be struck by how many of them valued class politics as a way to get away from the nationalist passions they could see pulling European civilization apart (and putting Jews, in particular, in danger), even more than as a way of redressing the inequities of capitalism. The idea of class as the solution to the “national question,” the “woman question” and other such questions can be found in different ways in Engels, Luxemburg and Lenin.

In the end, the reactionaries who thought nation would always beat class turned out to be right. It is fascinating how strong the pull of the idea of class polarization as a cure for identity polarization is among millennial intellectuals like Nagle. This promise of an exit helps explain the appeal of wooden old-leftists like Bernie Sanders and Jeremy Corbyn to people born after Marxism was apparently definitively buried.

Continue reading “#Weimar”

It isn’t easy keeping either of America’s big coalitions together. In the opening months of the Trump administration, Republicans divided over foreign policy (neoconservative hegemonists vs. Jacksonian isolationists), trade policy (traditional Republican business interests and libertarians vs. Trumpian protectionists), immigration (ditto), health care (everybody against the Ryan plan) and, it now seems, even taxes. The Democratic Party was better able to unify around opposing Trump and the Republican desire to repeal Obamacare, but the division between its social-democratic and neoliberal wings – exposed by the surprisingly effective primary challenge of Bernie Sanders – reemerged in the struggle for Democratic National Committee chair between Keith Ellison and Tom Perez. The Trump era looks set to realign the partisan and ideological system that has characterized American politics for the last half-century.

But one issue was an exception. The nomination of the mild-mannered Neil Gorsuch as junior justice of the U.S. Supreme Court united each party internally and totally polarized them against each other. The U.S. Senate – long a bulwark of individualism and cross-party back-scratching, with at least ten Republican members who have publicly feuded with President Trump – divided almost perfectly on party lines. The minority Democrats took the politically risky step of filibustering a nominee whose professional qualifications were difficult to question. And then the majority Republicans took the equally perilous step of rewriting the body’s rules to eliminate the ability of a minority to filibuster a Supreme Court nominee (the so-called “nuclear option”).

The United States has never had the disciplined party structure of parliamentary democracies like Canada and the resolution of the impasse undeniably reduces the overall power of senators. For this reason, the Republican majority has ruled out taking the same step of eliminating the filibuster for ordinary legislation or budget issues, and Democrats would be unlikely to force such a result if they could avoid it. On these other matters, the institutional interests of senators are more powerful than their ideological loyalties. But for Supreme Court nominees, neither party’s base would tolerate such a set of priorities. If another justice dies or retires before the next presidential election – and three of them were born in the 1930s – this disciplined partisanship is very likely to be repeated.

To an outsider, it is strange that the most perfectly partisan issue in American politics is nomination to a purportedly nonpolitical office. On further investigation, it just gets stranger – and says a lot about the dangers to the rule of law of constitutionalizing moral and political conflicts.

From Scalia to Gorsuch via Trump

The fight that led to Gorsuch’s nomination began almost a year before Trump took office. On the night of February 12, 2016, after a day of quail hunting, Justice Antonin Scalia died in his sleep. For someone who made his name as an expert in administrative law and statutory interpretation, Scalia was a colourful and controversial character. A conservative Catholic who was acerbic both in oral argument and in writing, he typically voted for results congenial to the political right – although he was proud of the exceptions, such as his vote in Texas v. Johnson that flag burning is constitutionally protected free speech, as well as his numerous decisions limiting the scope of criminal statutes and protecting what he thought of as rights of criminal defendants.1

Scalia cut his teeth as a free-market critic of federal regulation, particularly of telecommunications. He was thus a minor player in the “law-and-economics” movement of the 1970s that analyzed law in terms of neoclassical microeconomic theory. But his more important role was in defining the specifically legal views of the American right, views that at least purport to eschew any connection with market economics or traditional morality.

Scalia propounded constitutional “originalism” (the idea, refined by Scalia, that the text of the constitution should be read in terms of the “public meaning” it had when adopted), Chevron deference (the idea that the executive branch should get to interpret its statutory powers when they were ambiguous) and statutory textualism (a refusal to pay attention to the political history of a law, combined with a relatively literal reading of its meaning). Although there are certainly conservative lawyers who disagree with one or more of these ideas, these ideas have largely defined the conservative mainstream since the Reagan era – in no small part as a result of Scalia’s energetic advocacy of them. Originalism and textualism in particular stood in contrast to the mainstream of American legal thought, which (as in Canada) prioritizes pragmatism and judicial discretion over the highly formalist and positivist approach Scalia advocated.

The relationship between Scalia’s legal commitments and political conservatism is as controversial as the legal ideas themselves. In any particular case, the results of reading constitutions historically, deferring to presidential administrations or reading congressional enactments textually could be liberal, conservative or neither depending on the constitutional provision, the administration or the Congress. Many of Scalia’s critics have argued that he applied his legal ideas inconsistently when they conflicted with his political biases.2 Scalia did not always deny this, but argued that formalism created an objective standard by which he could be judged, while pragmatism makes a virtue out of political bias.3 At the same time, in a larger sense, Scalia probably thought his legal views supported an overall populist conservatism, because he thought that the progressive agenda was promoted by judges reading the modernist prejudices of their class into constitutions and statutes.

However, another view of the “original” meaning of phrases in the Fourteenth Amendment like “equal protection of the laws” and states being prohibited from depriving any person of “life, liberty or property without due process of law” is that these words enacted principles that are capable of new application as social understanding changes. From this “new originalist” perspective, the original force of the Fourteenth Amendment comes from the underlying revolutionary principles of the post–Civil War Reconstructionist era, not the specific views of the majority of the population at the time. It is perfectly consistent with these principles and with the text to apply “equal protection” to gay and lesbian people and “liberty” to their freedom to marry, regardless of how fringe a view this would have been in the 1860s. Recently, an increasing number of progressive judges and legal theorists have come to see that this is not a dispute about whether the original public meaning of constitutional texts is binding, but about how meaning should be understood. Jack M. Balkin’s 2011 book Living Originalism4 sets this progressive originalist position most coherently, and Elena Kagan, President Obama’s former Solicitor General whom he appointed to the Supreme Court, set it out most pithily at her confirmation hearing when she said, “We are all originalists now.”

While Scalia was on the court, the median justice in ideologically charged cases was Anthony Kennedy, a moderate Republican appointed by Ronald Reagan when the more fearsomely conservative Robert Bork proved unacceptable to the Senate. Kennedy clashed most memorably with Scalia on gay rights issues,5 but was often aligned with the conservative wing of the court in other respects. Scalia’s death during the presidency of Barack Obama appeared to open up the possibility of a Democratic-appointed liberal majority. Obama nominated Merrick Garland, by all accounts a moderate liberal generally disinclined to interfere with the elected branches of government, whether for conservative or progressive reasons. Garland was about as favourable a justice as Republicans could expect from a Democratic president. However, while Democrats controlled the presidency, Republicans controlled the Senate, and they refused to allow Garland’s nomination to come to a vote while Obama remained in office.

Trump’s nomination as Republican candidate for president came as a shock to the leaders of the conservative movement – who believed they had established a lock on the Republican Party since Reagan. The “Reagan coalition” was mobilized around three ideological blocs: social conservatives motivated by a desire to preserve traditionalist virtues, economic libertarians motivated by a pro-market ideology and neoconservatives who advocate an assertive military and foreign-policy posture by the United States. Trump’s obvious personal failings and lack of religious convictions, ingrained protectionism, support for popular spending programs and inconsistent isolationism did not faze the Republican primary electorate, which warmed to his ultranationalist identity politics and authoritarian persona. But little Trump said was consistent with movement conservatism as it had been understood for 40 years.

Nevertheless, while some conservative thought leaders – especially those for whom foreign policy was particularly salient – abandoned Trump altogether, most social and economic conservatives were won over by the time the election rolled around. And indeed while much postelection punditry has focused on the small number of traditionally Democratic rust belt voters who switched from Obama, Trump avoided the electoral annihilation midcampaign polls predicted because traditional Republicans voted for him.

Instrumental to this consolidation was Trump’s commitment to appoint a replacement for Scalia from a shortlist of judicial conservatives prepared by leaders of the Federalist Society, a group of conservative and libertarian lawyers and law professors (while Gorsuch was not on Trump’s original list, he was on a supplemental list delivered later in the campaign). More than any other single thing Trump did on clinching the nomination, this commitment brought the majority of the “movement” behind him – enabling him to win in November despite the well-founded doubts of many movement leaders about his ideological reliability, competence and character. Delivering on this commitment, shortly after being inaugurated Trump nominated Judge Neil Gorsuch, appointed to the federal appellate courts by George W. Bush, to the Supreme Court.

The right-wing legal counterculture

As political scientist Steven Teles documents in his 2009 book The Rise of the Conservative Legal Movement, the Federalist Society is a fascinating case study in long-term institution-building by the American right. Founded by Reaganite students at elite law schools in 1982, the Federalist Society advocates no positions and submits no briefs. It organizes conferences and student chapters for libertarian and conservative legal types to talk to one another and sometimes debate progressives. By creating a network, it built up a right-wing legal counterculture. Of course, there have always been conservative lawyers, but when the Federalist Society was founded, there was little in the way of right-wing legal theory, especially in constitutional or administrative law. But since 1982, whole intellectual movements – law-and-economics, originalism, textualism, Thomist natural law thinking – have developed, been refined and to some extent migrated over to the progressive legal academy.

The political moment of this more ideological brand of right-wing lawyering arrived as a result of disappointment of conservative movement figures in results from Republican appointees. Eisenhower appointed both Chief Justice Earl Warren and liberal icon William Brennan. Nixon appointed the very conservative William Rehnquist, but also Harry Blackmun, author of the Roe v. Wade decision that created a constitutional right of access to abortion. George H.W. Bush appointed Clarence Thomas, who has proven to be more doctrinaire even than Scalia, but also David Souter, who quickly became aligned with the liberal wing of the court and who voted along with Blackmun, Kennedy and Sandra Day O’Connor (another Reagan appointee) to uphold Roe in the 1992 decision Casey v. Planned Parenthood. Casey was the final straw for conservative activists, who adopted the slogan “No More Souters” and broke with George W. Bush when he tried to appoint the insufficiently ideological Harriet Miers to the Court in 2005.

The result is that the American right has demanded ideological reliability, not just Republican partisanship. And, as Lenin and Gramsci realized long ago, this requires ideological institutions engaged in more abstract theorizing. Gorsuch is a hereditary conservative: his mother was an official in the Reagan administration and he is a product of the debates in the Federalist Society and similar circles. As a law professor at the University of Chicago, Scalia was an early mentor of the Federalist Society, and he undoubtedly had an outsize influence on the people who have gone through its ranks. But Scalia was fully formed intellectually before the Federalist Society began, as were Clarence Thomas and Samuel Alito. Chief Justice John Roberts is a lawyer’s lawyer, with an instrumental view of theory. It is widely speculated that he avoided ruling Obamacare unconstitutional because he did not want to embroil the Court, as an institution, in the no-win partisan disputes about health care.

Gorsuch differs from his predecessors in being a generational product of a much more theoretical culture on the legal right. This will likely mean both that he can be relied on from the conservative perspective, and that he will be able to put forward his perspective in a less acerbic way than Scalia. (It also means departure from Scalia’s stance of deferring to executive agencies when interpreting statutes, a position now unpopular on the legal right.) As is now traditional, Gorsuch did not say much that is substantive in his testimony before the Senate Justice Committee. As a court of appeal justice, his record showed he was a better than average writer, with results that were not unusual for a Republican appointee.

Commentators turned to his doctoral dissertation, The Right to Receive Assistance in Suicide and Euthanasia, which examined the issue from various perspectives including common law, constitutional law and contemporary moral philosophy. The dissertation is a solid if unremarkable academic work, addressing the arguments of pro-euthanasia thinkers like Peter Singer and Richard Posner without rancour or hyperbole. But it ends up with a conservative conclusion, defending traditional distinctions between foreseeably causing death with pain medication and deliberately causing it, or between a competent person dying by refusing hydration or treatment and active medical assistance.

Gorsuch’s thesis supervisor, Oxford legal philosopher John Finnis, is a leading exponent of a neo-Aristotelian natural law approach to legal and moral philosophy – ostensibly secular but definitely influenced by a tradition in Western philosophy that had a major impact on the moral theology of the Catholic Church. Gorsuch borrowed from this tradition the idea of human life as an “intrinsic good” that cannot be reduced to a utilitarian calculus or equated with a right of personal choice. While Gorsuch steered clear of abortion politics, and regarded Casey as authoritative, activists on both sides of the abortion debate clearly decided he would support overturning it if the opportunity arose, and he will probably vote like Scalia, while employing more measured rhetoric.

It should be said, though, that Aristotelian virtue ethics and natural law theory are not necessarily right-wing, and that consistent utilitarians and libertarians come to extremely unpopular and counterintuitive moral positions. Singer thinks it is wrong to eat meat or give your child birthday presents if the money could help save someone from malaria, while Posner guaranteed that he would never reach the U.S. Supreme Court by advocating auctioning off rights to adopt babies. This does not mean those positions are wrong (Jeremy Bentham counterintuitively opposed sodomy laws and slavery), but it should put some of the hyperventilating in context. The actually alarming thing is that it is important to dissect a dissertation in moral philosophy for clues about the future of public policy in a democracy of almost 300 million people. This is the consequence of the superempowerment of final courts of appeal.

The balance holds – for now

The immediate effect of Gorsuch’s nomination will not be huge. Anthony Kennedy will remain the median vote on the Supreme Court of the United States, as he has been since Sandra Day O’Connor retired in 2005. Since the ideological space between Kennedy and O’Connor is not that great, really the Court will remain where it has been since Gorsuch was a teenager. But the next death or retirement is likely to be either Kennedy or one of the Court’s liberals, in which case the balance could shift dramatically.

It is surely unfortunate that so much of significance to American public policy turns on actuarial accident. Too much that should be left to politics is judicialized. The inevitable result is that, once the most salient issues are decided by a Supreme Court, the law becomes hostage to politicization. Scalia’s answer to this was to find formalist approaches to adjudication that would transcend the judges’ own biases, but the actual result is that these approaches just become shibboleths for one political coalition and anathema for the other. The political debate is channelled into jurisprudential abstraction, but at the end of the day the judicial balance depends on the brass-knuckle politicking of senators like Mitch McConnell and Chuck Schumer.

Canada does not yet have the problem of polarization around judicial choice and our Supreme Court enjoys widespread acceptance, if not widespread understanding. But the same logic may eventually triumph here, since there is no greater sense in Canadian elite legal circles that the results in constitutional cases are independent of the ideologies and perspectives of the justices. This was exemplified by the questionnaire for Supreme Court of Canada appointment filled out by our most recently appointed justice, Malcolm Rowe, and published by the Trudeau government on the internet. Reflecting the academic consensus since the 1930s, Rowe stated quite frankly that “Supreme Court of Canada judges ordinarily make law, rather than applying it” and that the legitimacy of court decisions derived from the “wisdom and well-founded principles” of its judges.

The appointments of Justice Russell Brown in 2015 and Justice Rowe in 2016 both provoked a more ideologically polarized debate than we have been used to. We can hope that the United States is not the mirror of our future, but pessimism is probably the better way to bet.

Continue reading “Law as politics, politics as law”

Right now, Canadian law makes possession, trafficking and production of cannabis a crime with exemptions for medical marijuana. Simple possession is rarely prosecuted. From your perspective, what are the main problems with this system?

It might be counterintuitive for some people, but most of the problems we have with cannabis arise from its prohibition, not its use.

NORML wants to encourage safe and moderate use of cannabis – for people who want to use cannabis – because, as with alcohol, the majority of users have no problem and experience only its benefits. Prohibition means we leave controlled substances to organized crime, rather than regulating them for safety and purity – although only a minority of cannabis production is controlled by what we would seriously call “organized crime.”

Simple possession is rarely prosecuted? If you’re a kid from a minority community in an inner-city neighborhood or on a reservation, you may have a different experience with the justice system. That’s one important reason to legalize: cannabis need not be the gateway to the criminal justice system that it is now.

If you talk with police – away from cameras and microphones – they will tell you that enforcement of cannabis prohibition is not a good use of their time and resources. And they’ve known this for a long time. It’s politicians, primarily, who have kept the fires burning under cannabis prohibition. In my conversations with law enforcement, they say they would have backed off years ago because, as police officers, they have much bigger problems with alcohol than with cannabis.

Do you see health or other risks in cannabis use?

Yes, there are risks, but these have to be compared with alternatives. People with a preexisting mental illness, or a family history of it, should avoid cannabis and all other psychotropic substances. People should not drive or operate heavy equipment under the influence of cannabis. The evidence about the effect of cannabis alone on driving is inconclusive, but we are against driving while impaired by anything. Alcohol and cannabis are a particularly bad mix. We can expect bad reactions to things like mould and pesticides – and we should pay close attention to prevalence and severity.

Most of the concern today turns on the neurodevelopment of the adolescent brain when exposed to regular high doses. No serious person argues against an age limit, and most scholars of cannabis science would prefer to delay initiation into the late teens or early twenties. What is less certain at this stage is the direction of the causal arrows between use of cannabis and poor school performance or learning outcomes. Does cannabis use at higher doses undermine school performance, or are children who are performing poorly at school drawn to self-medication? The end of prohibition will, among other things, enable a rigorous examination of causes and effects and other correlates among users and nonusers

But in any event, risks pale in comparison to the risk of being criminalized for possession, which has always been the greater threat to life prospects under prohibition. Moreover, we can do more to deal with the risks in a legalized system with evidence-based regulation than under prohibition. Despite almost 90 years of criminal prohibition, Canadian youth are among the highest cannabis users in the world. Regulated legal vendors could do better, as they have for tobacco.

In November, the Task Force on Marijuana Legalization and Regulation provided its report. What do you think was good and bad about that report?

On balance, the report got the fundamentals right. The devil will be in the details, and we have not yet seen those details, but I suspect most casual users – and antiprohibitionists, which is NORML’s historic constituency – are comfortable with the Task Force Report. The issue turns on how one undoes bad policy. That turns out to be a more complex challenge than anyone realized. Almost 100 years of racist, punitive social engineering, deeply shrouded in myth and misinformation, is receding, but not without a fight. We’re at that point now, as Gramsci put it, where “the old is dying but the new is not yet able to be born.” The report does acknowledge that people will – and should be able to – grow their own. NORML argued that cannabis should not fall under the exclusive control of corporations. We’re also glad that the Task Force says cannabis and alcohol should not be sold from the same storefronts.

The Trudeau government has now introduced Bill C-45, which would take cannabis out of the Controlled Drugs and Substances Act and create a new Cannabis Act. What do you think of that legislation?

The act gets the essentials right, but some of the details are wrong or just not known yet.

Keep in mind that, though it may not seem like it, we are in “early days” where this psychotropically complex plant is concerned. There is much to be learned about the full range of therapies and, to be honest, harms associated with it. We have yet to see the regulations, so that limits our ability to pass judgement. From what I can tell, the government took the advice of the state of Colorado to start with stronger legislation on the expectation that it will be possible to loosen regulations with time and experience. The biggest challenge, in my view, was to create a regime that is able to learn and to feed that learning back into the regime’s design in real time. I am optimistic that this bill can do that.

Provincial regulation of sale made sense in the context of our existing jurisprudence over the control of alcohol and tobacco. Simple path dependency just made sense given our constitutional division of responsibilities and history of legislating consumption of toxic substances.

NORML endorses restrictions on promotion similar to those for tobacco for public health reasons. We have never endorsed or condemned the use of cannabis for any person or reason. We do not seek to grow the rate of use nor to shrink it. We just want the criminal justice system out of the whole issue through the enactment of legislation informed by science and best practices rather than fearmongering and hysteria. This act moves toward that objective.

The bill is still too punitive for what it does prohibit. We have pretty good evidence that punishment for cannabis crimes does not deter, and denouncement through criminal stigmatization is more harmful than use.

The worst thing is what the bill doesn’t do. It leaves in place the mandatory minimum penalties (MMPs) in the Controlled Drugs and Substances Act. Policymakers know – and will admit when away from cameras and microphones – that MMPs don’t deter and that certainty of punishment is more effective than severity. MMPs limit the discretion of judges – which is a feel-good measure – and sentence a “class” of crime rather than the individual offender. They’re a lazy means of appearing serious because they’re so easy to enact: a few changes to language. When former justice minister Rob Nicholson was in the Mulroney government, he opposed MMPs. Sooner or later some policymaker will say out loud what everyone knows: we should limit MMPs to the crimes for which the Law Reform Commission recommended it: murder and high treason.

Many critics have noted that the federal bill provides a legal age of 18, but the science suggests that cannabis use can damage developing brains.

There is no logical argument for setting a legal age different from that for alcohol and tobacco, given that both are more harmful and toxic substances. From a public health perspective later initiation is preferable, but it is hard to enforce as a practical matter because Canadian youth are already among the highest consumers of cannabis in the world and cannabis cultivation is no longer the province of nerdy horticulturalists but available to anyone with an internet connection. All public policy has to balance the public good against the practically enforceable. We are long past being able to enforce, as a practical matter, a strict legal age when the plant is so easy to grow.

Are there any amendments to Bill C-45 you think Parliament should consider?

No prison for pot! Mandatory minimums should be repealed immediately – not a year from now – and the availability of a “conditional sentence order” that enables sentences of imprisonment to be served in the community should be restored to at least prevent the serving of actual sentences of imprisonment pending legalization. All indictable offences should be abolished, leaving only summary conviction offences and a maximum of two years less a day imprisonment for serious matters until legalization.

NORML endorses the view that there should be no imprisonment for cannabis offences and the focus should be on monetary penalties for infractions and violations. We have lots of experience and evidence to support the claim that imprisonment does not produce the deterrent effect advertised for it.

The report seems to contemplate federal supply management of cannabis production. This would obviously lead to valuable rents to those producers who get inside the system. Do you have worries about that approach?

Not really because there exists a large and well-established cannabis culture dating back at least to the 1960s, which I predict will emerge out of the underground and assert its vitality and life force. That is, in effect, what is happening with the dispensaries now. Cannabis users will grow their own, trade and sell to one another as they have for decades, but without the threat of criminalization. Many people will prefer the federally sanctioned suppliers, and that’s fine, but at least as many will grow a handful of plants on their balconies or in their backyards or basements or purchase from friends.

What lessons does the regulation of tobacco and alcohol have for legalized cannabis?

The important lessons are derived from public health principles: no advertising to children is the big one because delaying age of initiation is desirable for all psychotropic substances. NORML wants to discourage use by people who operate heavy equipment or drive, the way we do with alcohol, but NORML also wants to discourage texting and other driving distractions. NORML would also like to see some of the tax revenues recycled into treatment and education to encourage safe and moderate use. NORML also feels strongly that permitting home production limits the incentives for corporations to “enhance” their products, perhaps to make them addictive on the tobacco model.

Do you think there are other “controlled drugs and substances” that could benefit from a similar approach to the one taken for marijuana? What would be the best next step?

Canadians should ask themselves, as a thought experiment, which drugs and controlled substances they would prefer to leave to the criminal underclass to have regulated for accessibility, safety and purity. I think we have to assume that we cannot eradicate demand, nor have we been able to eradicate supply. Given that, the best we can do is to employ a harm minimization strategy to both demand and supply. Prohibition, on the evidence and experience, turns out to be a harm maximization strategy. I think we can do better. The public health principles that will come to govern cannabis can be applied to all other controlled substances.

Demand creates its own supply. That supply is going to be controlled either by organized crime or by some government or quasigovernment institution – like a not-for-profit NGO – that is able to regulate for purity, access and quality and that is able to create a real workable gateway between suppliers and children. I echo the conclusion of The Economist’s editors that legalization is the “least bad option.”

Does NORML have any thoughts on how best to address the ongoing surge of opioid dependence and overdose?

There is early – but promising – evidence that opioid use, and associated overdose, seem to be lower in U.S. jurisdictions where cannabis is legal and easily available. We should pay close attention to this correlation because that confirms what many cannabis users suspect: cannabis is an adequate substitute for some of the conditions that opiates treat.

Jacob T. Levy, Rationalism, Pluralism, and Freedom. Oxford, England: Oxford University Press, 2015. 322 pages.

In Rationalism, Pluralism, and Freedom, McGill Professor Jacob Levy has made a major contribution to political theory by identifying and elaborating on a deep and enduring split within liberalism that unlocks much that is otherwise mysterious about its past disputes and future prospects. All liberals want to protect freedom and equality but, from the beginning, they have disagreed about the main source of threat.

For some liberals (whom Levy dubs “rationalists”), the main dangers are from traditionalist communities, whether local, sectarian or familial. For rationalist liberals, these traditional loyalties are the source of sexism, superstition and repression. They see centralized, impersonal nation-states – or, even better, supranational statelike organizations from the European Union to the United Nations – are at least potentially open to reform based on a reasoned understanding of the rights of all. In contrast, other liberals (Levy’s “pluralists”) see the bureaucratic state itself as the main enemy of freedom, constantly encroaching on voluntary and decentralized sources of social meaning. This has led pluralists to be suspicious of state-centred narratives of progress and often to form alliances with the modern state’s illiberal enemies.

Levy considers the consequences of this split for concrete contemporary disputes, for the intellectual history of the Western liberal tradition and for the larger future of liberal polities undergoing rapid cultural change and polarization. In all three areas, he develops complex variations on his simple theme of two liberalisms. After reading Levy’s book, it is hard to read a newspaper without seeing his dilemma play out. Is banning polygamy or the niqab liberation of women or oppression of religious minorities? Must evangelical colleges abandon their condemnation of sex outside heterosexual marriage if they want to train lawyers? Can European judiciaries require member states to accept unwanted demographic change in the name of common refugee protection obligations? How can indigenous systems of hereditary government be given formal, legal power in a modern state? In each case, both sides claim the mantle of freedom, choice and equal treatment. In each case, the issue is whether the main enemy of these values is traditional mores or rationalistic bureaucracies. These dilemmas cut across traditional left/right divides.

In the first part of his book, Levy considers the problem “intermediate groups” pose for liberal political theory. In its simplest form, liberalism focuses on the dyad of the state and the individual. For liberals, the equal autonomy of individuals is the source of both the state’s legitimate powers and the appropriate limits on those powers. Liberal states ought to maximize the freedom of everyone and can only establish limits on that freedom on impersonally justified grounds. Liberal documents from the American Declaration of Independence to the Canadian Charter of Rights and Freedoms follow this structure, deeply embedded in liberal theory.

The trouble, as conservative and radical critics of liberalism have long delighted in pointing out, is that societies are characterized by more than the individual/state dyad. People are embedded in all sorts of local and voluntary loyalties, institutions and organizations. The most benign might be defined by a common interest or hobby. More troublesome are those defined by common descent: from family and clans to ethnic and racial groups. Others are defined by adherence to a religion or other comprehensive ideology. Additional problematic intermediate groups include subnational governments and economic organizations like corporations and unions (although Levy excludes this last type of intermediate group from his discussion for reasons of scope).

Central liberal values such as freedom of association and of religion, privacy and local self-government get their meaning from human beings’ need to participate in these intermediate groups. But even at their best, these groups divide the world between insiders and outsiders, a division that any liberal must view with suspicion; at worst, intermediate groups are explicitly inegalitarian and hostile to individual autonomy.

Levy discusses, and rejects, two liberal theories of intermediate groups. The “pure” theory sees group existence as the simple product of individual choice, and concludes that the state should not interfere with groups so long as there is no explicit coercion to prevent individuals from leaving. On the pure theory, only a central state can violate autonomy: if a religion or an ethnic group is restrictive or sexist, then the individual affected always has the option to leave.

As Levy points out, there are two implicit assumptions in the pure theory: first that exit is realistic, and second that its possibility normatively justifies all internal restrictions on liberty and equality. The problem with the first assumption is that it holds only if the central state is in fact strong enough to guarantee exit, but provides no mechanism by which this strength can be maintained. As for the normative assumption that violations of autonomy and equality are fine so long as there is a possibility of exit, the pure theorists are inconsistent: they would not excuse the state, as such, from any violations of liberty and equality, as long as the affected individual could emigrate. The possibility of exit may diminish liberal unease, but should not eliminate it.

The opposite approach would be to require that every civil society group have the same relationship to its members that the liberal state has to its citizens. Levy calls this the “convergence” view. In some cases, this makes sense. Local governments and incorporated societies are required to have elections for leaders, articulate statelike impersonal justification of their strictures and provide procedural rights to those accused of violating them.

But when it comes to the intermediate groups centrally involved in creating meaning for people, the convergence view would require massive impersonal state involvement in our intimate lives. Descent-based groups do not have formal-bureaucratic organizational structures amenable to legalistic rights talk, and trying to enforce such a structure suggests an almost totalitarian project of atomizing and deracinating people. Religious organizations may or may not have formal structures, but when they do, it seems the most successful (think the Roman Catholic and Mormon churches) are precisely those that are most illiberal.

Levy thinks this is no accident, since religious institutions like those of mainline Protestantism or Reform Judaism that have most converged with liberal, secular values offer little that is distinctive to people who cannot get meaning in mainstream society. If this observation is correct, there will be strong selective pressures in a society globally committed to liberalism for robust intermediate groups to diverge from liberal values. For this reason, Levy does not think convergence is likely as a descriptive matter, and he rejects it, on liberal grounds, as a normative project.

If abstract, universalizing theories of intermediate groups do not work, it is still possible to look to traditions of relative suspicion. In Levy’s account the rationalist/pluralist views need not have the (implausible) deductive clarity of the pure/convergent theories. In the book’s second – and longest – part, Levy retells the intellectual history of liberalism in light of the tension between those who look at intermediate groups primarily as a source of liberal freedom and those who see such groups as a threat to it.

Levy combines a strong historical sense with close attention to theoretical distinctions historians often ignore. His story involves comparisons between familiar characters in succeeding eras, paired along rationalist/pluralist lines: from John Locke and more historically minded Whigs in the 17th century; through Voltaire as despiser of religion and admirer of enlightened despots and Montesquieu as opponent of royal absolutism and admirer of the estates in mid-18th-century France; to Thomas Paine and Edmund Burke during the era of the American and French revolutions; and culminating in the subtler 19th-century contrast of John Stuart Mill, for the rationalists, with his friend Alexis de Tocqueville, for pluralism.

Along the way, Levy introduces and situates a number of lesser-known figures, especially on the pluralist liberal side. Liberal theory developed during an era in which there was a real conflict between the emerging royal/democratic nation-state and the decentralized institutions of feudalism, and Levy shows that liberals were not always on the side of universal law and against feudal privilege. From the English Whigs through some of the French liberal critics of the Revolution to the pluralist new liberals in the 20th century, Levy reminds of us of the ways in which liberals invoked the “ancient liberties” of medieval Europe against absolutist monarchies and then against the ideological nation-state. There is a line, running especially through Catholic thought, from these pro-medieval antistatist versions of liberalism to more recent decentralist and federalist theories. This line has special importance for Canada because it explains some deep resonances between the thinking of British new liberals like Viscount Haldane and Quebec thinkers influenced by post–Vatican II Catholic social thought: behind both looms the 19th-century figure of Lord Acton.

Levy is least confident in his third part, in which he discusses the implications of the pluralist/rationalist dichotomy for our present and future predicament in the multicultural West. Levy obviously has sympathies for the pluralist side, but is willing neither to cast his lot entirely with it nor to try to broker a synthesis.

There is something to admire about this unwillingness to accept an easy resolution. On the other hand, from my perspective, the fact that the resolution between pluralism and rationalism more or less works in practice, at least for now, is itself in need of explanation. Levy seems to insist on a pessimistic or tragic conclusion that we cannot expect liberal values in a broad sense to suffuse civil society over the long run. But theoreticians should be interested in how a trick so difficult to pull off can be done at all. There must be some forces pulling toward equilibrium. In this respect, I think Levy is too dismissive of the forces of convergence, of how mutual accommodation in the political realm, at least sometimes, spills over into more tolerant and egalitarian approaches in the more intimate.

One possible conclusion from Levy’s discussion is that we should seek a golden mean: if either the bureaucratic state or particularistic identity groups get too powerful, then we are in trouble. A conception of political wisdom as requiring balance has a long tradition in the West, dating back to Aristotle and Cicero. It is also consistent with Francis Fukuyama’s observation that the historical basis of Western institutions lies in Western Europe’s uniquely strong-enough-but-not-too-strong central states.

Of course, as the investment advisers are required to say, past performance is no guarantee of future results, and Levy’s pessimism may be vindicated. The key issue is whether liberal societies are able to reproduce a core liberal culture: so long as that remains possible, pluralist concessions to illiberalism within voluntarily chosen intermediate groups probably strengthen liberalism. But there may be a tipping point beyond which the liberal nature of the central state could no longer be taken for granted. Canada has long benefited from a pragmatist streak in its liberal-rationalist ruling elite, but if that same elite loses an understanding of the historically contingent nature of this unstable arrangement along with the vocabulary to talk about how to preserve it, then the whole arrangement could be in danger.

Levy should be applauded for advancing a vital discussion within liberal theory, and doing so in a way that is informed by philosophical, historical and social-scientific perspectives. Political theorists should definitely read it, but so too should lawyers, policymakers, journalists and others interested in reconciling these dilemmas from a more practical perspective.

In addition to the force of Justin Trudeau’s optimistic personality, an obvious explanation for the Liberals’ election victory is that they promised to spend more than they taxed. Focusing just on the amounts promised, there is no reason to fear any serious negative consequences as a result. But the lurking issue is how this victory changes political incentives in the future. The “deficit taboo” is gone – but with it, have we lost the force that keeps democratic politics from leading to a debt crisis?

The Liberal platform announced planned deficits of approximately $9.9 billion, $9.5 billion and $5.7 billion in the first three full fiscal years of the government’s mandate. In contrast, the NDP anticipated surpluses of between $3 and $4 billion per year. At least as these things are conventionally viewed, the Liberals thus outflanked their traditional rival on the left. It is hard to know for sure whether this manoeuvre won the Liberals the “change vote,” but there is no doubt that the conventional wisdom that deficit spending is electoral suicide has been reversed.

From a purely technocratic point of view, the differences between the Liberal and NDP fiscal platform are not that big a deal. The total federal budget for fiscal year 2015–16 is $290 billion. Even the biggest deficit number is less than 3.5 per cent of the total, and on conservative estimates of economic growth, if the Liberal government sticks to its plan the debt-to-GDP ratio will continue to decline.

The main argument given for the deficits is that they get the economy moving again and generate jobs. Behind this slogan are models of the economy. If the total amount that people in the country wanted to spend were constant (a proposition economists describe as “Say’s law”), then more government borrowing would just mean an equal reduction in lending to businesses and individuals. While the mix of jobs would change, the total number would not. But cyclical booms and busts for the entire economy (at least when they are not caused by obvious external events like hurricanes or wars) show that the amount people want to spend is not constant. Sometimes there is a “general glut” where people and resources are left unemployed, even though there are clearly social needs to be fulfilled. At other times people are trying to spend too much relative to what the economy can actually produce, generating inflation.

The classic “old Keynesian” approach was to spend in recessions and tax in recoveries, thereby evening out the business cycle and making Say’s law that supply creates its own demand true by approximation. But Keynes wrote the General Theory of Employment, Interest and Money in the 1930s. At the time countries abandoned the gold standard but the assumption was that fiat currencies, controlled by governments, would be temporary. Monetary policy was more or less fixed, and only fiscal policy could make Say’s law come true.

In a country with its own fiat currency, like Canada, it is important to recognize that fiscal policy can be counteracted by monetary policy. Governments can react to feared inflation by increasing taxes and reducing spending, and to feared unemployment by doing the opposite, but central banks can react by reducing base money (if worried about inflation) and by increasing it (if worried about unemployment). What politicians do to aggregate demand, central bankers can undo. Since the budget cycle is much longer than the time for a central bank announcement, the central bankers have the last word.

In the early 1990s, the Rae government in Ontario ran large deficits with explicit Keynesian justifications, and the Mulroney federal government did the same without them. But the Bank of Canada was engaged in a tight monetary policy. The result was an unusually severe recession in comparison to that in other economies – even as Canada’s debt-to-GDP ratio reached its highest level ever (government debt maxed out at 101.7 per cent of GDP in 1996). In contrast, in the second half of the 1990s, both the federal and provincial governments engaged in serious fiscal austerity for the first time in a generation. The Bank of Canada lightened up and let the dollar fall. The result was a recovery and lower unemployment rates.

Milton Friedman’s belief that the amount of demand in the economy depended only on a particular monetary aggregate turned out to be wrong. But through the Great Moderation between the 1980s and 2008, he appeared to be right that a central monetary authority can offset whatever shocks occur to aggregate demand. A sufficient increase in the monetary base can offset a decrease in velocity (and vice versa). Thus, the central bank can keep overall nominal spending (and therefore inflation) on an even keel if it wants to. The New Keynesian synthesis took this experience into account: while changes in fiscal position as a result of automatic decreased revenues and increased spending on means-tested programs have a useful countercyclical effect, there are limits to what fiscal policy can achieve in light of the monetary offset.

The 2008 financial crisis complicated this picture. When it hit, nominal interest rates were already very low. To the extent that monetary policy has an effect through lowering interest rates, it looked as if the Bank of Canada (along with other central banks) was close to the “zero lower bound”: since interest rates cannot go below 0 per cent, many thought monetary policy could do little if deflationary forces occurred even when money was being given away for free. Thus even Stephen Harper – whose master’s thesis was an attack on countercyclical fiscal policy on the grounds that it will inevitably be driven more by politics than by economic need – undertook some fiscal stimulus via increased deficit spending. But central banks were not as constrained as people thought. They reached for unconventional measures, such as Quantitative Easing, a new term for creating money, which was used to buy government bonds.

The mini-recession of 2015 is not a “general glut” as in 2008–09; it is a partial glut of energy commodities. Canada has to adjust somehow: the dollar has fallen, which makes manufacturing exports cheaper and imports more expensive. This is in effect another form of monetary stimulus. On the day of the election, the Bank of Canada announced that it is maintaining its overnight rate target of 0.5 per cent – which is low, but still leaves some room for conventional monetary policy, let alone unconventional alternatives. In any event, the problem that budget cycles are too long to address fluctuations in aggregate demand is still there: by the time the new spending promised by the Liberal Party platform is put in place, the Canadian macroeconomy may be in a completely different position.

The second argument made by the Liberals for deficit spending builds on the point that interest rates are at an all-time low. If the government can borrow very cheaply, then it only needs a low return on its investment for borrowing to make sense. This is a good argument in principle: provided the value of project benefits offset the (currently low) cost of borrowing the necessary funds. Unfortunately, the Liberal platform refers to all public spending as “investments,” which denies any meaning to the word. We are told, for example, that a Liberal government will “invest” in the middle class by cutting taxes. To be fair, building infrastructure is investment, and it is too soon to know whether it will be infrastructure sufficiently useful to offset its costs. And, in any event, what really matters for our future fiscal position is the debt-to-GDP ratio – something which the Liberal platform promises not to increase.

But the technocratic economic perspective may not be the most important. Politicians get rewarded for pleasing voters, and most voters are not macroeconomists. It is puzzling that democracies can maintain any fiscal balance at all. Spending is popular and taxes are unpopular. Between the mid-seventies and the mid-nineties, that simple dynamic led to an explosion in public debt. The cycle was finally ended two decades ago when the political incentives changed, and deficits became political taboos.

By definition, a taboo is something that is not done for a rational reason. But taboos often evolve into cognitive shortcuts to obtain a (misunderstood) good. Whether or not avoiding pork in the Bronze Age Middle East was a good way of escaping the wrath of God, it was a good way of escaping the risk of trichinosis.

In an ideal world, “bad deficits” will continue to be political poison, while “good, technocratic deficits” will be okay. But making the correct distinction places a big bet on the sophistication of the electorate’s political psychology. No one can intuitively think in terms of billions of dollars, whereas everybody knows what it means to spend more than you bring in.

The generational consensus that deficits are basically bad is now over. What we need to worry about with this election result is not so much Trudeau’s budget numbers as what he and other politicians conclude from his poll numbers.

Ronald Beiner, Political Philosophy: What It Is and Why It Matters.
New York: Cambridge University Press, 2014. 247 pages.

Historians and anthropologists have long been fascinated with extreme cultures: warlike Spartans, fiercely independent mountain peoples, societies obsessed with asceticism and mystical experience. But we – the kind of people who read or write for Inroads – are typical specimens of the most atypical human culture of all.

Educated citizens of developed Western countries are unlike any other people who have ever walked the earth. UBC psychologists Joe Henrich, Steve Heine and Ara Norenzayan have labelled us “WEIRD” (for Western, Educated, Industrialized, Rich and Democratic) and have demonstrated that we are statistical outliers in the way we think.1 We have very little intuition about the natural world, but work well with abstractions. We detach means from ends. We are unusually willing to be fair to and to trust strangers. We value romantic love and individual choice, and pay little attention to extended family and inherited tradition. Our morality celebrates ever-expanding circles of concern and peaceful and equal treatment and respect for those different from ourselves, at the expense of honour, purity, authority or sanctity. On all these dimensions, Westerners are WEIRDer than non-Westerners, educated and affluent Westerners WEIRDer than working-class ones, and later generations WEIRDer than their parents.

This new kind of person is quite clearly the product of post-medieval historical developments in western Europe and then its settler colonies: the scientific revolution, the Reformation, the Enlightenment and the widespread disgust with honour and tribalism after the World Wars. Going back further, we are ultimately heirs of the interaction of biblical religion and Greek philosophical insight: the meeting of Athens and Jerusalem. We are also products of those who used the logic and rhetoric of the post-Enlightenment West to oppose religious, racial, gender and other hierarchies that characterized the West in its rise: among others, the abolitionist, anticolonial, civil rights and feminist movements.

WEIRD societies have advantages that are hard to deny (tempted though we may be to try by the WEIRD aversion to tribalist boasting). Any number of statistics about health or wealth would make the point, but the most dramatic is life expectancy at birth, which rarely exceeded 40 years anywhere before 1900, but today is converging on 80 in developed countries. The exponential growth of scientific knowledge is equally hard to relativize away: we just know more than our forebears did, and WEIRD habits of mind both reflect and promote this. For now, at least, the WEIRDer parts of the planet are also the most powerful.

However, reasonable people can disagree about whether this trend towards WEIRDness represents moral progress. Indeed, the striking thing about WEIRD habits of mind is they make it difficult even to talk about moral progress. Scientific development has tended to make us think that real knowledge comes from quantitative and experimental methods that do not give rise to moral insight. And the universalist values of liberalism paradoxically undermine themselves once they are (correctly) seen as the products of a specific, historically developed culture. If the most important thing is to be fair to people who are different, then the very idea that our own moral beliefs are truer than those of people who disagree with us, or come from other historical traditions, becomes suspect.

No culture anywhere consists entirely of virtuous and excellent people. But WEIRD culture seems unique (and, arguably, uniquely bad) in that it appears to abandon even the aspiration to any virtue other than tolerating others and living peacefully with them. Have we given up on the quest for rationally understanding how best to live? Has our immense technological reasoning and comparative tolerance meant that we must abandon the task at the heart of philosophy as Socrates, Plato and Aristotle would have understood it?

In Political Philosophy: What It Is and Why It Matters, University of Toronto professor Ronald Beiner takes up these questions by reviewing central texts of fourteen 20th-century intellectuals: Sigmund Freud, Max Weber, Hannah Arendt, Michael Oakeshott, Leo Strauss, Karl Löwith, Eric Vogelin, Simone Weil, Hans-Georg Gadamer, Jürgen Habermas, Michel Foucault, Alasdair MacIntyre, John Rawls and Richard Rorty. For Beiner, reflection on the value of modernity is political philosophy: there is virtually nothing in this book about institutional forms, racial/ethnic conflicts, gender, issues of peace and war or economic distribution, and remarkably little about politics, democracy or the state. Even when the writers he talks about addressed these issues, Beiner is always interested in what they thought of the merits of liberalism, modernity and value-pluralism, which Beiner for the most part treats as synonymous. Beiner’s contribution is to put together, in an accessible and even entertaining way, a conversation among those thinkers of the past century who most deeply accessed the resources of the Western tradition to consider the merits of its WEIRD progeny.

Critics of modernity: Strauss, Weil, Vogelin and MacIntyre

Some on this list – Strauss, Weil, Vogelin and MacIntyre, especially – clearly thought the West had taken a wrong turn. Strauss and Vogelin were aligned with the political right; Weil was, and MacIntyre is, an unconventional leftist. But for all four, modern philosophy, of which the modern world is a product, represented a decline from ancient and medieval thought precisely because it abandoned the quest for rational truth about how best to live. Strauss is notoriously difficult to pin down because of his belief that philosophers cannot always responsibly say what they mean, but in the text Beiner discusses, Natural Right and History, he warns of the effects of subsuming an objective right based on enduring human nature in quintessentially modern historical relativism. Weil’s themes are familiar today in the public statements of Pope Francis: she believed modern capitalism and state socialism both contradicted the objectively true Christian message, understood in highly Platonic terms. Vogelin diagnosed modern ideologies of every stripe as “Gnostic” attempts to realize in the social world what classical Christianity and Platonism had understood to be transcendent and beyond history. MacIntyre relies on Aristotle and Thomas Aquinas for his critique of the modern state, market and morality: things go wrong when we no longer understand that there is a right way of being for humans and therefore stop trying to seek it out.

Beiner is sympathetic to these root-and-branch critiques of modernity in favour of an ancient conception of the objectivity and unity of virtue. But he recognizes that none of these thinkers actually delivers a firm rational foundation for the good, and all of their political projects are nostalgic or utopian. Beiner longs for an “epic” mode of philosophizing that would try to discover the true purpose of human life (the “summum bonum”), but in the end he admits that we are not likely to see it, and concedes that the attempt has dangers of fanaticism and totalitarianism.

Unless we are prepared to agree with Vogelin that the ancients discovered the science of the transcendent, and that everything that has happened since the Middle Ages was no more than perversely forgetting this, then I think we have to agree with Beiner’s conclusion, if not with his regret. In Aristotle’s biology, living things, like tools or other human artifacts, have a function and can be evaluated by how well they fulfill that function. A knife’s function is to cut, and a knife that cuts well is a good kife; a shark’s function is to hunt, and a shark that hunts well is a good shark. The goal of ethics is to find the true function (telos) of human beings. But Darwin showed that beneath all the amazing functionality of biological life lies an amoral and mechanistic process of natural selection.

There is no reason to think there is a summum bonum. Even if there were, how could we identify the subset of humanity who knew what it was? Conceptual reasoning, historical erudition and empirical knowledge of human psychology are all good things, but there is no evidence that they make people morally better or politically more astute. As Oakeshott and Gadamer emphasized, philosophers have no special access to knowledge of the good life. Vogelin’s analysis of the theological roots of modern ideologies remains valuable, as does the point common to these theorists that morality makes more sense when rooted in a theory of human nature and the virtues that make it the best it can be. But there is no single such theory that can claim clear rational superiority over all the others, and even if there were, it would not justify coercively imposing it on everyone.

Modernity’s defenders: Weber, Habermas, Rawls and Rorty

If philosophers cannot tell us what the good life is, then the task must be left to ordinary people, deciding either individually or collectively. In other words, we are left with some mixture of liberalism and democracy. Beiner puts forward Weber, Habermas, Rawls and Rorty as the defenders of modernity and the plurality of legitimate values. There is a risk of caricature in that framing, since none of the “defenders” are uncritical of liberal modernity. A central theme for both Weber and Habermas was that the growth of bureaucratic rationality (for Weber) or the “steering media” of the market and state (for Habermas) threaten more immediate relationships between people. Rawls and Rorty were highly critical of the unequal distribution of wealth and opportunity in a liberal capitalist economy. Still, none of this group was nostalgic for traditional authority or believed there was a unique “philosophical” path to the truth about what is good for human beings.

Weber believed that a genuinely scientific study of society must be value-neutral, while political commitment necessarily meant making a tragic, existential choice between values rather than rationally deducing the right one. Beiner argues that Weber contradicted his value-neutral stance in his lectures on science and politics as vocations, since he obviously engaged in normative rhetoric. This criticism (and a similar criticism of Foucault) misfires because Weber did not claim to speak as a scientist (and Foucault did not claim to speak as a genealogist) when making value statements. In claiming that Weber and Foucault demonstrated a philosophical commitment when they made moral claims, Beiner tacitly makes the assumption that normative language is the province of philosophy. But this assumption is precisely what those he is criticizing objected to. Weber provided no scientific or philosophical argument for liberalism, or for anything else, but he never said he did.

Beiner is on stronger grounds criticizing Habermas and Rorty. Habermas insists on the non-subjectivity of truth, but he defines truth as whatever everyone would agree on in an idealized interaction. This is appealing in that it does not privilege special insights available only to philosophers, but the problem is that this idealized discussion is no longer about anything other than itself. In Habermas’s politics, we all have an obligation to try to agree on what it is that we would all agree on if we could really talk as equals. But this is just as circular as defining chemical truth as being about what perfect chemists would agree on if they discussed things long enough, rather than being about atoms and molecules. it is equally vacuous when applied to social and political debate: a debate about how best to defend a country or reform health care is not about what we agree on, but about the strategic situation or the most effective ways of preventing disease. For Habermas, we talk, but we don’t talk about anything.

Rorty was a pragmatist who considered not only moral and political ideas, but even scientific and technical ones, as just “ways of talking” that should be evaluated for usefulness, not truth. For him, aerospace engineering is not in any fundamental sense truer – as opposed to more useful – than beliefs in witchcraft, so it was no serious knock on his social-democratic multiculturalism that it could not be rationally established as better than Thomist Christianity or Islamic fundamentalism. This sounds absurd, but instrumentalist theories of scientific knowledge are not crazy, and may even be right.

The difficulty for Rorty is that an instrumentalist philosophy of science is only plausible if it leaves scientific practice unchanged: if a philosopher came along and said theoretical physics had to change because of his or her views, or depended on their being correct, the philosopher would rightly be laughed out of the room. But Rorty claimed his ironic, postmodernist attitude as necessary for a proper “culture of liberalism”: we will all be better off if we accept his rediscription. As Beiner demonstrates, though, once we accept Rorty’s rediscription, we can no longer consistently talk about being better off. If Rorty claimed his philosophical (or really antiphilosophical) views had no political implications at all, then he would be as immune to Beiner’s criticisms as Weber and Foucault. But since he didn’t make that claim, Beiner’s criticisms are on the mark. Rorty has a mandatory conception of the good after all, and it is a self-contradictory one.

Beiner raises a similar objection to the late Rawls of Political Liberalism. In that book, Rawls introduced (or perhaps reintroduced) the distinction between a political conception of justice and comprehensive conceptions of the good, the right or how the universe works. A liberal society is characterized by what Rawls calls “reasonable pluralism.” Many comprehensive conceptions of the good – each logically incompatible with the others – nonetheless live together because they are each compatible with the political conception of justice manifested in that state. Catholics, Buddhists, Kantians and devotees of Ayn Rand can all live under the same laws without oppressing the others, as long as those laws are governed by what Rawls calls “public reason,” and as long as all these groups accept this. This is only possible if the sphere of what the political concerns itself with is limited. Liberal politics therefore cannot provide answers to ambitious questions about the meaning of human life, or be premised on such answers.

Beiner thinks he has Rawls in the same kind of logical bind as Rorty. Rawls’s comprehensive view is not to have a comprehensive view, and this is self-defeatingly circular. He also accuses Rawls of unnecessarily limiting the ambitions of philosophy by conceding that no progress is possible in coming to a better substantive view of the human good.

But Rawls escapes these criticisms. Rawls, unlike Rorty, does not try to argue against comprehensive conceptions of the good, or try to establish that they are all equal, morally or logically. He just wants to isolate political structures from dependence on the controversial claims of those conceptions. Rawls places justice/fairness/right as the preeminent value for the ordering of the basic structure of society, and insists that the basic structure be fair between conceptions of the good. This is obviously inconsistent with the idea that “error has no rights.” But it does not involve a claim that there are no errors. For Rawls, as for John Stuart Mill, a free and just society is the way to find out what is good: the best conception is more likely to win out in a fair fight than in a fixed one.

Beiner cannot accept this because he bakes comprehensiveness into his definition of political philosophy. It is a “total horizon of moral, social and political existence in its normative dimensions.” This is refreshingly unfashionable, but it amounts to erasing the distinction between specifically political philosophy and philosophy in general. Dangerously, this presupposes no limits to the political sphere.

The “political” has always referred to specific institutions. For Plato and Aristotle, this was the Greek city. In the medieval world, it was the empire or realm. For moderns, it was the nation-state, as recognized in international law and politics from the Treaty of Westphalia through the United Nations Charter. One theme through Western thought is that these institutions have their inherent limits and therefore, even at their best, will not be able to realize the most important values. Even Plato seems to have realized this after his negative experiences in Syracuse. Aristotle distinguished the active life of politics from the (better) contemplative life that politics could at most make possible. Post-Augustinian Christian political thought emphasized both the legitimacy of secular authority and its lack of ultimate significance. Liberalism did not invent the idea that the political good is less than transcendent, although it certainly depends on it. Beiner ignores the institutional, and thereby the limits on a political philosophy.

The communitarian challenge and the liberal response

For me, the most interesting chapter of Beiner’s book is his “short excursus” on the communitarian movement of which he was a part. The leading figures, in addition to MacIntyre, were Charles Taylor, Michael Walzer, Christopher Lasch and Michael Sandel. The common ground was a critique of liberalism as being based on a false notion of human beings as fundamentally detachable from the social context in which they grew up.

As Beiner realizes, communitarianism was never able to deal with an obvious liberal response. Since it is an undeniable and universal truth that selves are “situated,” it is not possible for liberalism to threaten this truth. Of course, people are inevitably shaped by the communities in which they grow up, and will inevitably seek to be part of communities once they have done so. Liberalism has no problem with this: community is what the very-liberal principle of freedom of association protects. For liberals, the only issue arises if adults are coerced into remaining in “their” birth communities once they have chosen otherwise.

Liberalism allows, but does not require, single-minded adherence to particular communal identities. In contrast, illiberal identity politics inevitably requires people to abandon some communal identities in favour of others: most saliently for Canadians, membership in the Québécois people is said to require abandoning visually identifying with a religious community. The most effective response to this sort of demand by a communitarian philosopher like Taylor is the liberal rhetoric of freedom of religion and expression. Beiner observes this, and observes the general decline of communitarianism into a self-contradictory illiberal multiculturalism, in which identities are privileged just so long as they are defined as being outside the mainstream. But his analysis is weakened because his conception of political philosophy prejudges the issue of the role of the state in an illiberal way, and because he is ultimately uninterested in reflection on specific institutions.

Communitarian thinkers also had a bad habit of relying on their own ipse dixit about social trends, unchecked by any empirical methodology or modesty in the absence of one. Beiner quotes approvingly from Lasch’s early 1990s claim that liberalism was “crumbling” because of drugs, crime, gang wars, decay of the educational system and ever-increasing racial polarization. It is now pretty well known that crime and violence have declined since Lasch wrote. The educational system and racial polarization are less easy to quantify, but adjusted for demographic shifts, U.S. students do better on tests today than they did then, IQs continue to rise, and America elected a black president in 2008. Beiner does not talk about any of this, and to my mind is generally too nostalgic about the days when an erudite intellectual could rant about “current trends” without any empirical support. Arendt and Vogelin come to mind for me, but of all of Beiner’s post-Weberian exemplars, only Foucault, Habermas and Rawls felt any need to keep up with empirical social science.

Beiner’s ultimate conclusion is pessimistic. He cannot see how philosophy can rationally justify a single summum bonum. But acknowledging pluralism is, for him, surrender. For a student, his book is an excellent introduction to 20th-century debates about “modernity,” but it does not address more institutionally focused political philosophy. Beiner has failed to give sufficient weight to the autonomy of political philosophy and its dependence on focusing on the purposes of specifically political institutions. Continue reading “Political philosophy without political institutions”

Joseph Carens, The Ethics of Immigration.
New York: Oxford University Press, 2013.

384 pages.

Demographic politics are back. Migration from poor to rich countries may be the most polarizing issue of the 21st century for Europe and North America. We urgently need a way to think clearly about how a liberal-democratic state may treat people who move to it – and, more radically, on what basis, if any, it may stop them from coming in the first place.

While most people in the West think migrants have a right to be treated equally once they are here, there is a broad consensus that governments can, and should, keep people out if it is in their national interest to do so. In The Ethics of Immigration, Joseph Carens, a political theorist at the University of Toronto, argues that this widespread intuition is wrong, and that basic liberal democratic commitments require more or less “open borders.” His argument is provocative and very accessible. Carens has a knack for making technical immigration policy and even more technical philosophical debate interesting. Unfortunately, however, he embraces a style of “ideal theory” that renders his book much less useful for the genuinely tough issues of immigration policy than it could be.

There is no doubt about the timeliness of immigration as a burning moral and political issue. Between the world wars, anxieties about the fall of birth rates among European-derived people brought the open migration of the 19th century to an end. The defeat of fascism eventually resulted in a partial turnaround. In 1957, the Treaty of Rome established free movement of workers within what was then the European Economic Community. In the mid-sixties, Canada, the United States and Australia abandoned highly restrictive and racially discriminatory immigration policies. In the following half century, the demographics of the Anglosphere and, to a lesser extent, continental Europe changed dramatically. But the rich countries have never allowed in more than a fraction of the people who would like to come. While the global South, with the exception of parts of east Asia, did not approach the economic well-being of its former colonial masters, it did have a population explosion as access to modern health care dramatically reduced child mortality. The result was, and is, many more potential migrants than the West is prepared to accept.

Mass migration has never occurred without resistance. For decades, many European countries have had populist anti-immigration parties – sometimes explicitly racist or fascist. In the United States and the Commonwealth, nativism has expressed itself primarily through mainstream parties. For the most part, though, each new cohort in the native population has been more open to racial and ethnic diversity, while the descendants of migrants undeniably assimilated in the sense of becoming adept in the local language and popular culture. Business and political leaders have seen immigration as a way to bring in needed skills and mitigate the threat to the welfare state from aging native populations. In the 1990s, it was easy to imagine that the West would embrace a post-ethnic identity and provide a new home for ambitious people from poorer countries.

It is still possible, but the 21st century has been hard on inevitabilist illusions. As the last overwhelmingly white generation in the West, aging baby boomers have found a strange new respect for the demographic anxieties of the 1920s. September 11 reignited the West’s anxiety about the Islamic world. Muslim immigrants are particularly visible in western Europe. The 2008 economic crisis and the failure of Europe’s labour markets have pushed demographic politics back to the centre of controversy. As I write, most polls show Marine Le Pen as the most popular first-ballot choice in France’s 2017 presidential election. The United Kingdom Independence Party captured 13 per cent of the vote in Britain’s May 7 general election. Populist anti-immigration parties received more than 10 per cent of the vote in the most recent elections in France, Switzerland, Austria, Belgium, Finland, Norway, Sweden, Denmark and the Netherlands. Mainstream European parties are, with few exceptions, careful not to support increased legal immigration and are firmly in favour of suppressing illegal border crossing.

The anti-immigration wing of the Republican Party has been able to prevent any legislation giving legal status to the tens of millions of foreign nationals, mostly Mexicans, working and living in the United States illegally. President Obama, resorting to executive action, has responded by not enforcing existing immigration laws against large categories of people. The legality of this action will be decided in America’s highly partisan federal courts. Democrats and pro-immigration Republicans (most prominently represented by Jeb Bush) insist that they will increase enforcement on the Mexican border and have very limited proposals for extending legal immigration. Canada has maintained a relatively strong consensus in favour of existing levels of legal immigration of around 250,000 people per year, although the Harper government has tried to shift the composition of legal immigrants away from the family and refugee classes and toward economic immigrants.

The tension between the economic forces for increasing migration and the political forces for slowing it is only going to rise. Lance Pritchett estimated that in 2002 a Salvadoran with a primary school education could make almost 15 times as much working in the United States as at home. The ratio is even higher between sub-Saharan Africa and Europe. While the global South is entering the final phase of the demographic transition as birth rates fall, it will be a century before this plays out. In the meantime the gap between a growing working-age population in the South and a declining one in the rich countries is going to become starker. We can expect an aging Western electorate in a time of diminished economic expectations and increased security concerns to vote against accelerating the demographic shift that began in the 1960s. The reforms of that decade are under threat: it is hard to imagine their being expanded. But by limiting immigration, we are leaving trillions of dollars of potential economic wealth on the table, while condemning millions to poverty and insecurity.

19_migrant_USDA photo by Bob Nichols.Economically, immigration increases the size of the pie. Immigrants and their families usually increase their incomes substantially. This is not surprising because economic improvement is usually their motivation for immigrating, and it has to be significant enough to overcome all the disincentives of moving to an unfamiliar culture. For the receiving country, economic theory tells us that mobility of people, like mobility of goods and capital, should result in gains from trade. But these gains are not distributed equally. The less you have in common with the average immigrant, the more you will benefit. Specialists on immigration economics like George Borjas have found that high-skilled immigration increases overall wealth in the receiving country substantially, while diminishing inequality within the native population. Low-skilled immigration to economically developed countries benefits the immigrants themselves and high-skilled natives (but not much), but results in lower wages or joblessness for less-educated natives.

The social effects for receiving countries seem to be mixed. On the one hand, more diverse societies allow for more options and thereby more freedom. More ways of living feed more perspectives into the social mind. On the other hand, as Robert Putnam has shown, diversity can lead to a sense of social isolation and a decline in trust. At existing levels, immigration does not seem to have a dramatic effect on political institutions: recent immigrants participate less in politics, but generally vote in patterns similar to older populations. Despite the hype, radical anti-Western politics are restricted to a tiny minority.

What does immigration do to poor countries? On the “brain drain” view, rich countries lure away much of the high-skilled elite that source countries desperately need and spend scarce resources educating. On the other hand, migrants to the West send money home and bring back skills. Remittances from expatriates exceed all foreign aid. Migrants provide a bridge for the transmission of Western technology and organizational knowledge.

If immigration implies winners and losers, how should we decide whom to let in, and how to treat those who are here? On a straightforward cosmopolitan utilitarian calculus, more immigration is a good thing: immigrants benefit and the net effects on others are uncertain and probably positive. From the narrower perspective of current citizens of rich countries, high-skilled immigration seems to be good, but large amounts of low-skilled immigration could create more unequal societies, transforming Europe and North America into versions of Brazil or South Africa. In Michael Walzer’s phrase, open borders will mean “a thousand petty fortresses” as the well-off separate themselves domestically. But on a global level, this dystopian vision will actually be more equal than the status quo, so maybe we are morally obliged to do it anyway.

Applying principles to immigration issues

Carens’s strategy is to answer the moral questions about immigration using principles that have near-unanimous support among citizens of democratic countries – albeit applied in ways the vast majority of those citizens would reject. In the first part of The Ethics of Immigration, he presupposes that states have a moral right to restrict immigration, and discusses the implications of generally accepted democratic principles for such issues as birthright citizenship, naturalization, assimilation, rights of permanent residents and temporary workers, rights of illegal (“irregular”) immigrants and the grounds on which legal immigrants should be admitted. In the second part, he takes the more radical path of challenging the right of the state to keep people out at all.

Some of Carens’s conclusions will not be controversial within mainstream liberal opinion, at least in Canada. He is in favour of automatic citizenship for children of foreign nationals born in a country. Those who grow up in a country should have an automatic right to its citizenship as well, regardless of birthplace or nationality of parents. Authorized permanent residents should have essentially the same legal rights as citizens, and should have a right to obtain citizenship after they have been in the country for a lengthy period of time. While he acknowledges that public social norms will inevitably reflect majoritarian culture, they should also develop to accommodate minority interests.

What I found interesting about his discussion on these points is that many of the arguments turn on whether dual citizenship is something a state has a right to discourage. Carens compares making a person choose between two nationalities when they have close links to both to forcing a child to choose between parents. I find Carens’s arguments persuasive, but only because intercountry war has become unthinkable, except perhaps involving pariah states that do not send many migrants. A century ago, this would have seemed utopian: of course any state needed to know whether it had its nationals’ loyalty in a war. Concerns about loyalty today are not really about loyalty to specific states but to revolutionary ideologies, so dual citizenship is no longer a big deal.

But I think the failure to examine the factual/historical presuppositions for his argument exposes a weakness in Carens’s approach. Carens claims he can avoid empirical controversy by talking only about what justice requires and is concerned that excessive pragmatism will confuse what we can endorse and what we must endure. The problem is that it makes no sense to ask what is right when faced with unavoidable necessity. When the prospect of interstate war was the most important issue in world affairs, dual citizenship would have been not only inexpedient but also unjust.

Not all of Carens’s conclusions in this section of the book are uncontroversial. Carens says naturalization tests are unjust because people inheriting their citizenship through birth or parentage do not have to demonstrate any particular knowledge. He argues that there are strong normative obligations on a host population to modify its culture to accommodate newcomers, and even argues for an asymmetry of obligation: migrants are morally entitled to associate only among themselves, but natives are not. Even history must change – according to Carens, “the history of the nation has to be imagined and recounted in a way that enables citizens of immigrant origin to identify with it.” Carens maintains that temporary workers must be given the same workplace rights as other residents, although he allows for differences in access to social insurance. With respect to “irregular migrants,” he argues for a firewall between immigration authorities and other state authorities, particularly police, social workers and schools, and says that irregular migrants obtain a moral right to stay after about ten years in the country. Enforcement of immigration laws should primarily target employers.

In relation to who should come in, assuming the state can morally make such decisions, Carens posits that family reunification is morally required but is uncertain whether “family” should be understood in terms of the culture of the migrants or of the receiving country. He says ethnicity and cultural affinity are not legitimate grounds to choose migrants, although linguistic ability and economic prospects are. Carens also says that the current refugee policy of almost every Western country is immoral, and that European and North American countries are morally obligated to make a serious effort to resettle the millions of Convention refugees currently in camps.

I am sympathetic to many of Carens’s conclusions, although I disagree about history: if it were up to me, history would not be “imagined” for contemporary political purposes at all. But I doubt that any of these conclusions follow from generally accepted normative principles. For cosmopolitans, all that matters morally is membership in the human species, so the state can’t rightfully prioritize the interests of its current citizens at all. Carens says he is not a cosmopolitan, and thinks the state should prefer those who are members of the society. But behind most of his conclusions is the premise that the only thing that matters to social membership is duration of residence within the country’s borders. Any other principle, he argues, would privilege the way of life of the native population over those of the migrants.

To me, this just seems to be a restatement of the cosmopolitan viewpoint. If an existing majority is allowed to prioritize what is “theirs” precisely because it is theirs, then Carens’s arguments do not follow. They can set the rules about social membership, and if migrants don’t like those rules they don’t have to come. This particularist intuition is at the root of most of the attitudes Carens objects to. Clearly, “love of one’s own” has deep roots in human nature. Classical liberals think the state and the law should not act on this premise, although voluntary associations may. Communitarians disagree. Carens wants to have his communitarian cake and eat it too.

Utopian theory or lifeboat morality?

The most controversial issues are those surrounding “open borders.” According to Carens, the basic democratic principle of liberty implies that coercion must be justified, and the basic principle of equality implies that differences in treatment, particularly those based on status inherited at birth, must be justified. Closed borders are enforced by men with guns, and are coercive. And they deny rights of entry to rich countries, and all the opportunities that go with those rights, on the basis of an accident of birth. It follows that we must either come up with special justifications for controlling immigration or abandon our commitment to liberty and equality.

The obvious response is that what justifies limiting immigration is the chaos that would ensue if all the people who saw it as in their economic interest to move did so at once. The number who might like to move from the global South to Europe and North America is conservatively numbered in the hundreds of millions. The experience of contemporary levels of immigration would be no guide to what would occur if all immigration controls were lifted. Carens acknowledges the point, but says that this should not matter because the massive demand for immigration exists only as a result of the inequalities between rich and poor countries. If every country in the world had more or less similar levels of economic opportunity, only a few unusual people would want to leave their country of origin. Immigration at this level would be no threat to national identity, social order or any other good that seeks to justify immigration restriction.

To my mind, this is a cop-out. The National Front’s Marine Le Pen and UKIP’s Nigel Farage could happily agree that if such a world ever came into existence, they would support open borders. The issue, surely, is what the obligations of rich countries might be in this world. To be sure, moral philosophers should not feel confined to the immediately practicable. But they should not help themselves to an assumption of changed material circumstances that just disappears the dilemma they are purporting to assist us with. Migration between Sweden and Switzerland is not a burning issue one way or the other. If economic opportunities were more or less the same everywhere, we could expect that democracies would agree to let one another’s nationals move freely on the expectation that few would. That was no doubt the mindset of the signatories of the Treaty of Rome in 1957. If there were no significant economic inequalities in the world, we probably would not have much in the way of immigration control – but if we did, it would be no big deal.

In our world, in contrast, many Africans risk their lives every year to get into Europe, as do Latin Americans to get into the United States. We cannot escape the moral seriousness of sending them back – even if they are “only” economic migrants, it means sending them to live a life we would never accept for ourselves. But by the same token, Carens cannot really escape the argument from necessity: if Europe or North America let everyone in who wants in, economic theory would predict that people would keep moving until there was no longer a benefit to do so. There would be little welfare state left, and possibly little in the way of democracy and a market economy.

For Carens, as for John Rawls before him, anything that is a product of human action is subject to human agency: if it is a social fact, we could change it. Since the division of the world into states is a social fact, in his view it makes sense to question its justice, even if we have no real option of exiting a world of nation-states. He finds the idea that justice applies to the evaluation of options only if there is a mechanism to choose between them “puzzling.” But justice presupposes choice: as Carens and Rawls would concede, it makes no sense to say polio or cancer is “unjust” unless you posit an agent who could get rid of it. The historically given may be just as impossible for any particular agent to undo as the naturally given. Carens thinks it is obvious that feudalism or slavery was “unjust” before there was a way to change it.

But this is not obvious at all. Thinkers as diverse as Marx, Hayek and Burke would deny that it makes sense to talk about the “justice” of a utopian scheme without explaining the agency by which it would be realized. An immigration law can be changed because we have the mechanism of legislative amendment (itself a product of a historical development no one could have planned). But we have no similar mechanism to get rid of the division of the world into states or the economic differences between the rich countries and the poor ones.

Carens sometimes suggests that open borders would motivate Europe and North America to do the right thing and bring the global South up to their own economic level. But he does not try to establish that they could do this even if they wanted to. For most of human history, every society was in a Malthusian trap: economic improvement due to technological advance could lead to population growth, but it could not lead to sustained increases in living standards. Northwestern Europe escaped this trap in the late 18th century. The leftist explanation for this was colonialism and slavery, but it seems pretty clear that the causation ran the other way: Europe could have global colonial empires because it became rich, but it did not become rich because of global colonial empires. The West has a poor record of transplanting its institutions and, anyway, does not have the right to do so.

Of course, it is perfectly possible that other parts of the world will escape the Malthusian trap: east Asia has largely done so, and the Indian subcontinent and much of Africa have recently shown some signs of economic convergence. The biggest danger, particularly in Africa and the larger Middle East, is renewed civil conflict, although corruption and ethnic politics are certainly obstacles as well. But whatever happens, the West will at most play a supporting role. Carens has a remarkably old-fashioned view of Western agency acting on Southern structure.

In a very short passage, Carens provides a more useful analysis by comparing the rich countries to a lifeboat. The people on the lifeboat have no moral obligation to allow so many people into it that it sinks, but they do have an obligation to take as many as they can without endangering themselves. As Carens says, all Western societies could take more immigrants without endangering the institutions that make them desirable places to move to in the first place. Of course, there are difficult tradeoffs. Those most likely to drown without the lifeboat are the unskilled, but those who would be easiest to accommodate are the relatively fortunate. The lifeboat analogy allows for quantitative restriction on immigration, but it does imply that the number of immigrants should be as large as possible. The number of legal immigrants that is politically feasible will always be smaller than the number lifeboat morality demands. Hence Carens’s political project is sound, even if his utopian theorizing is not.

Brian Leiter, Why Tolerate Religion?
Princeton, NJ: Princeton University Press, 2012
208 pages

In the late seventeenth century, the Sikh religion was at a crossroads. Indeed, it was not clear whether it could survive. The Muslim Mughal empire, reasonably tolerant at the height of its power under Akbar a century earlier, had decided to suppress the upstart faith. Guru Gobind Singh became the last of the Sikh living gurus at the age of nine when his father, the ninth guru, was executed at the orders of the emperor. In 1699, a few years after winning a major battle against the Mughals, he created the Khalsa order. On joining the Khalsa, all prior social distinctions of caste, race and even gender were to be eliminated. The Khalsa became the basis of the first Sikh state in the eighteenth century.

Today, the Khalsa are the visibly “observant” Sikhs. As in many such orders in various religious traditions, the inner spiritual meaning of the initiation was to be illustrated by exterior signs: the “Five Ks.” The most noticeable is the kesh, the uncut hair that requires Khalsa men to wear beards and their hair in turbans. The most troublesome for modern secular states is the kirpan, a short sword that initiates must keep on their person at all times for self-defence and, when required, for promoting justice.

Hyperventilating on the internet aside, the North Atlantic West does not today face an existential crisis comparable to the Mughal persecution. But it does face a crossroads. For the first time in centuries, issues of religious diversity and the limits of toleration take centre stage in the West. Traditionally Christian populations have become polarized between those who have become thoroughly secular (the majority outside the United States) and a remnant evangelized by Protestant and Catholic revivalists who bear little resemblance to the establishment clerics of the mid-20th century. Where these two groups are both numerous, as in North America, they do not get along well, and their differences have ignited a “culture war,” now into its third decade.

Moreover, since 2001, Western foreign policy has focused on the challenge to Western security and interests posed by militant Islamists. Mass immigration means every religious tradition in the world has significant representation in western Europe and North America. Feminism and sexual liberalism have increasingly become nonnegotiable commitments of the West, but at best, they are in tension with traditional religious commitments, and at worst, they represent the face of evil and decadence to orthodox believers. Religious diversity is perhaps the most unsettling result of mass migration, and certainly the least susceptible to traditional liberal modes of compromise.

Under traditional liberal assumptions, religious toleration requires that the state enact laws for secular reasons, that everyone obey them and that religion be a private matter. This understanding has been challenged within human rights and constitutional law by the idea that religious believers need exemptions from laws that may have been secular in their intent but interfere with religious practices or doctrines.

The most prominent case in Canada was that of Gurbaj Singh Multani, a devout Sikh and initiate of the Khalsa order. In September 2001, he was a 12-year-old attending public school in LaSalle on Montreal Island. He accidentally dropped his kirpan in the schoolyard. The school confiscated it, but soon agreed with his parents that he could continue to wear the kirpan as long as it was sewn into his clothes in a secure and inaccessible way. However, this decision was overturned by the school board as contrary to the school’s prohibition on the carrying of weapons. The school board’s decision was in turn reversed by the Supreme Court of Canada in 2006 on the grounds that it failed to reasonably accommodate his freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms and section 3 of Quebec’s Charter of Human Rights and Freedoms. This decision sparked almost a decade of controversy about the accommodation of minority religions and the secular nature of the state throughout Canada, particularly in Quebec.

Multani posed an impossible dilemma for a society committed to religious pluralism. Modern states deliver security and justice by insisting on a monopoly of force governed by impersonal laws. Even a country as respectful of individual self-defence as the United States requires that some spaces be weapons-free, and high on the list of such spaces are schools. No one can suggest that the modern state made schools weapons-free out of hostility to Sikhs. But the vow that a member of the Khalsa takes always to carry a kirpan is not a mere interest or preference that can be traded off in the pluralistic give-and-take of politics. It is an oath to God. It seems the secular state must either force some of its citizens to violate commitments of fundamental importance to them for a diffuse and uncertain benefit or exempt those citizens from a common requirement based on beliefs that cannot make sense to the fellow citizens who must take up the corresponding burden.

In Why Tolerate Religion?, Brian Leiter, a professor of law and philosophy at the University of Chicago, asks whether there are any reasons to treat religious and secular conscience differently, when and whether religiously mandated behaviour should get special exemptions from general laws enacted for secular purposes, and how far a state may go in suppressing religious expression to assert its own secularity. He answers that there are no distinctive reasons to respect religious conscience that do not apply to conscience generally. Since he thinks there is no way to give every conscientious objector an exemption from general laws, he holds that there should be no such exemptions, at least when the effect of an exemption is to shift a burden onto those who do not share the objection. He approves of states asserting their secularity, and even of suppressing religious expression to the extent necessary to do so, but argues that France’s practice of banning the hijab (Muslim headscarf) and other overt religious symbols for recipients of state services goes too far.

Leiter’s idiom is English-speaking analytic philosophy, with the strengths and weaknesses of this approach. The strength is a clear and logical argument from first principles: when there are conceptual leaps, they are laid out for the reader to decide whether to jump along with him. The weakness is a lack of historical perspective and a particular lack of sympathy for the religious sense. The result for me is that I agree with Leiter’s principles, but find his application of them sometimes to be too doctrinaire.

A Canadian reader especially will appreciate Leiter’s comparative approach: although he is an American law professor, he uses the Multani case to frame his discussion, and he engages critically but sympathetically with France’s attempt to maintain its system of laïcité (secularism) in light of the increased demographic presence of Muslim minorities.

Leiter opens by setting out the facts of Multani and comparing them to a hypothetical story of a rural schoolboy who inherits a knife from his father and wants to keep it on him at school. Knowing how to handle knives and guns is an important aspect of manhood in the rural culture of the American south and west. According to David Hackett Fischer’s Albion Seed, the folkways of this American backcountry can be traced back to the often lawless premodern borderlands of the British Isles, Ulster and the English-Scottish border. This kin- and honour-centred way of being an English-speaking person carried over to Appalachia, and was reinforced by the Great Awakening of evangelical and often sectarian Protestant fervour, the War of Independence and the Civil War. In other words, these folkways have some historical resonances with the development of the Khalsa. But, much to Leiter’s approval, no Western country would consider this boy’s plea to keep his knife to raise any kind of human rights or constitutional question.

As Leiter notes, the Canadian Charter guarantees freedom of “religion and conscience”, and a number of other human rights instruments speak of both. Yet claims of secular conscience are very rarely considered by the courts (and, if they are, they tend to be subsumed within freedom of expression, rather than freedom of conscience). Requests for exemption from generally applicable laws are almost always based on specifically religious practices and commitments.

Leiter usefully distinguishes among indifference, toleration and respect. As Leiter points out, toleration is by definition grudging: no one would be happy if a neighbour told them, “We tolerate people like you.” Indifference, not toleration, is the appropriate liberal attitude toward the race, ethnicity and sexual orientation of those with whom we share a community. One uncelebrated advantage of indifference is that it can be absolute. A liberal secular state has no reason to care about its citizens’ metaphysical beliefs or ritual practices if they do not affect the public sphere or the rights of others. This contrasts with most premodern states, which could tolerate heretical and infidel views (as Akbar did) but could not really be indifferent to them.

The question of toleration, by contrast, arises precisely when there is a secular or liberal reason to wish a belief or practice were otherwise. The “accommodation” cases, like Multani, therefore raise the question of toleration, properly speaking, since they arise precisely when the secular state has a legitimate reason, by its own lights, to interfere with the practice. Toleration, unlike indifference, cannot be absolute: the secular state has to suppress human sacrifice and perhaps polygamy, certain types of ritual animal slaughter and circumcision.

Leiter successfully argues that there are no reasons internal to the liberal tradition to tolerate (in this sense) religious conscience that do not also apply to secular conscience. He refers to John Rawls and John Stuart Mill, but I believe the principle can be derived more straightforwardly: it cannot make sense to demand that the state be neutral between mutually contradictory religious beliefs and at the same time privilege religion as such over other sources of moral commitment. Any reason for a Catholic to tolerate a Buddhist is also a reason to tolerate a vegan atheist. The United States is a bit of an outlier within the West on this subject. When Dwight Eisenhower said after being elected President in 1952 that “our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is,” he was widely mocked, but his statement seems to have expressed an enduring mindset among the American people. A 2014 Gallup poll reveals that healthy majorities would consider voting for a gay or Jewish president, and 58 per cent would vote for a Muslim, but a bare majority would even consider voting for an atheist. Some of the members of the Supreme Court of the United States think the government can promote religion in general, even if not a specific religion.

Leiter easily shows this approach is not consistent with basic principles of liberalism: whatever toleration the state should extend to religious conscience, it should also extend to secular conscience. His next move is more problematic. He claims that giving everyone who had a secular conscientious objection to a law an argument for an exemption from that law would be unworkable, and therefore defends the “no exemption” rule in the 1990 American case of Employment Division of Oregon v. Smith. In Employment Division, the Supreme Court denied Native American users of peyote in religious ceremonies an exemption from generally applicable drug laws on the basis that this law was not motivated by a desire to suppress their religion. The American Congress reacted by passing the Religious Freedom Restoration Act (RFRA), which requires accommodation of religious practices unless the government has a compelling interest that cannot be met with a less restrictive alternative. This rule is very similar to Canadian constitutional doctrine. Originally the subject of bipartisan support, it has become unpopular among American liberals since it was invoked by evangelical Protestant business owners who objected to paying for certain methods of birth control in the 2014 Hobby Lobby case.

Leiter is right that the RFRA and Canadian religious freedom jurisprudence discriminate on the basis of religion if they allow religious believers to shift burdens onto those who do not agree with them, without giving similar protection to nonreligious believers. At first glance, it seems compelling to say that this is not a rule that could be generalized to everyone with a claim of conscience, and it should therefore be abandoned altogether.

I think Leiter makes two mistakes in his argument at this point. First, he assumes that the relative absence of claims based on secular conscience is a product of legal doctrine, so that if the doctrine were relaxed there would be a flood of such claims, making law impossible. However, it seems more likely to me that the lack of “freedom of conscience” cases independent of religion is due more to the lack of plausible and motivated plaintiffs. If it were otherwise, Canadian law would have confronted the question of when a secular conscientious objector gets an exemption by now.

While Leiter is right to say that allowing exemptions that impose significant burdens on nonbelievers (“burden-shifting exemptions”) is not consistent with the religious freedom of those nonbelievers, he misses the fact that the actual cases usually turn on whether a real burden has been shifted. The early cases in Canada involved paternalistic laws, such as involuntary blood transfusions for Jehovah’s Witnesses, motorcycle and construction helmet requirements for Khalsa Sikhs or Sabbath-closing laws said to protect workers. The peyote ban in Employment Division is similarly paternalistic.

John Stuart Mill famously thought paternalism was never a good reason for a law. The Canadian Supreme Court has rejected Mill’s “harm principle” as a constitutional doctrine, and no doubt other high courts would do likewise. But it is coherent to allow the state to coerce people for their own good when what is at stake is merely preference and convenience, while rejecting such coercion when it offends what is taken to be a categorical moral demand. It is certainly possible that the same logic would be extended to a person who objected to a paternalistic law on the grounds of a plausible claim of secular conscience.

Other exemptions may be justified on the basis that the burden shifted to the majority that does not share the conscientious belief is equalized by other burdens the majority is able to impose just by being a majority. These cases are more difficult because they tend to assume both that there is a stable majority and that minorities with concentrated interests can never get their way. This may have been a reasonable assumption when, for example, in English-speaking North America, an undemanding official Protestantism surveyed a significant Catholic other and insignificant non-Christian alternatives. But it will not do for the 21st century when there is no longer a religious majority to accommodate everyone else in return for recognition of its hegemony.

On the other hand, the idea that everyone should be encouraged to accept give-and-take in the distribution of burdens is a civilized one, and we can hope it will survive. In any event, if the burden shifted is perceived to be too great, current doctrine – whether in Canada, in Europe or under the American Religious Freedom Restoration Act – will not accapt the claim for accommodation.

This leads me to my second complaint about Leiter’s approach: it ignores the details. The school and the Multani parents worked out a compromise: the kirpan would be on Gurbaj’s body, but sewn in such a way that he could not access it. Along with the total lack of evidence of school violence with kirpans in Canada, that solution does not seem to have really shifted a burden onto anybody. The pedestrian compromise demonstrated a civilized pragmatism in contrast to the school board’s ideological and “principled” approach. Indeed, the dissent in the Supreme Court of Canada would have avoided profound questions of religious freedom altogether in favour of a banal administrative law requirement of reasonableness. Leiter ignores the stitches. He makes fun of the Court’s willingness to restrict kirpans in courts and airplanes, but the same solution might not work on an airplane or in a criminal trial.

It might well be argued that the political system is very good at compromising interests. The judiciary, when it purports to deduce its rulings in favour of particular interests directly from the basic values of society, delegitimizes the losers in a way that an (always temporary) political loss does not. The reaction to the Multani decision is a good example of how little the Court is really able to foresee the consequences of what it does, and supports the wisdom of the more restrained judges who would have found for him solely on administrative grounds. But at a broader level, the accommodation legal norm is itself a product of a political process that has been able to maintain more legitimacy among religious minorities than the more logical approach in France. I do not see why the same approach cannot be extended to secular minorities when they have conscientious objections to following the law.

Stitches won’t always do it, and the secular West will sometimes have to insist on its own most basic commitments. Leiter rightly makes us aware that toleration is a virtue we only need when we have reason to be in conflict with one another. But his reluctance to dig into the details of the cases leads him to neglect the possibility that, instead of grand theorizing, those conflicts can usually be resolved with a little common sense.

As the April 7 election showed, there are no sure things in Quebec politics. If the Parti Québécois had won, and if – as originally announced – the National Assembly had enacted Bill 60 (the “Charter of Values”) without using the notwithstanding clause, it would have been challenged in the courts, and would likely have been struck down.

With the victory of the Quebec Liberal Party, it is harder to make predictions – especially about the future, as Yogi Berra would say. The Liberals promised a more moderate version of the Charter of Values. Kathleen Weil, the new Quebec Minister of Immigration, Diversity and Inclusion, has been vague about what the legislation will contain.

Scope of any challenge

While the PQ’s Bill 60 had 52 articles, three in particular seemed vulnerable to court challenge:

  • section 5, which would have prohibited employees of public bodies from wearing headgear, jewellery or clothing which conspicuously indicate a religious affiliation;
  • section 6, which would have required employees of public bodies to keep their faces uncovered; and
  • section 7, which (subject to some unspecified exceptions) would have required anyone receiving a public service to keep their face uncovered.

Sections 6 and 7 were not the first legislative attempt to require public employees and people receiving public services to uncover their faces. While worded somewhat more obliquely, Bill 94, introduced by Jean Charest’s Liberal government in 2010, would have had the same effect. Weil has indicated that there will be some legislation on face coverings, both for those who provide and those who receive public services. The new government might also seek to legislate on the question of conspicuous religious symbols, although a Liberal bill would undoubtedly be less sweeping than the PQ’s Bill 60, and will surely not invoke the notwithstanding clause.

If legislation in this area faces a court challenge, as it very likely will, such a challenge will inevitably be brought under both the Canadian Charter of Rights and Freedoms and its Quebec counterpart. It might prove tempting for a number of judges on the Supreme Court to resolve the case under the Quebec Charter.

First stage: Does legislation infringe a Charter right?

Challenges under the Canadian Charter always involve (at least) two stages. First, the party challenging the law must show that it “infringes” one of that person’s guaranteed rights found in sections 2 through 23 of the Charter. But it is important to realize that even if this occurs, the law is not automatically struck down. The government can still justify the law as a reasonable limit that can be “demonstrably justified in a free and democratic society” under section 1 of the Charter.

Challengers would argue that legislation restricting religious dress violates freedom of conscience and religion (s. 2), freedom of expression (s. 2) and the right to equality and protection of the law without discrimination based on religion (s. 15). The government, in turn, would claim – as the PQ stated in the preamble to Bill 60 – that the measures are necessary to ensure the values of separation of religions and the state, the religious neutrality of the state and equality between women and men, and therefore justifiable under section 1. Weil has said that rather than secularism (laïcité), the government will invoke the religious neutrality of the state.

I do not think there is any doubt that the challengers would succeed in establishing that restrictions on religious dress or rules that require people to uncover their faces would infringe freedom of conscience and religion and freedom of expression, and probably the right to equality and protection of the law without discrimination based on religion. If such restrictions were upheld, it would be under section 1 of the Canadian Charter.

A law breaches freedom of religion if it interferes with a person’s ability to act in accordance with his or her sincere religious beliefs in a manner that is more than trivial or insubustantial. “Triviality” must be judged from the framework of the believer. There really cannot be any doubt that restrictions on religious symbols and face coverings interfere with sincere religious practices.

Some defenders of the law might be tempted to argue that it interferes with religious practices only if the individual chooses to be a public employee or receive a public service. The Canadian courts do not accept this line of reasoning. The public employment context might make restrictions justifiable that would not be justifiable in other contexts, but those justifications still have to be made under section 1.

If such restrictions were upheld, therefore, it would be under section 1 of the Canadian Charter. What are the chances of that?

Second stage: Can the restriction be justified?

As a general matter, it is foolish to be confident regarding what the Supreme Court of Canada will decide under section 1. The formal structure of analysis is well understood, but the actual result is frankly dependent on the views of the majority of the Court. These views are not as polarized and ideologically predictable as in the United States. This is how Canadian lawyers like it, but it makes things hard to predict (as the federal government found out when two former Supreme Court justices and the author of the most influential treatise on Canadian constitutional law failed to anticipate the result in the reference concerning its abortive appointment of Marc Nadon to the Court).

The first question in a section 1 analysis is whether the objective of the legislation is sufficiently “pressing and substantial” to warrant limiting a constitutional right. The objective is distinguished sharply from the effects. Governments are usually taken at their word as to what the objective is, and rarely lose at this stage of the analysis. However, in the case of a restriction on religious dress, there would be some pressure to have the Supreme Court say that the very purpose of this legislation is an invidious antireligious bias, and it cannot be ruled out that the Court would agree and invalidate the legislation on these grounds alone.

On balance, though, I expect the Court to be true to historical type and to accept Quebec’s objectives as legitimate, especially if the Liberals do not try to assert a strong form of secularism. Obviously, the objective of equality between men and women is legitimate and is part of the Charter. The position that upholding the religious neutrality of the state is not a pressing and substantial objective that warrants limiting religious freedom does not survive reductio ad absurdum. Governments have to be able to impose restrictions on a government worker prosletyzing on the job. Even if questioning the motives of Quebec governments is popular in English Canada (although perhaps not so much for a federalist one), it would tend to undermine the legitimacy of any adverse decision in Quebec, and I doubt the Court would do that.

However, the Court might well say that the means chosen are not proportionate to the ends, and strike down the legislation for that reason. There are three elements to the “proportionality inquiry,” as Charter jargon would have it. The first is that there must be a rational connection between the law and the objective invoked to justify it. The second, and harder, test is that the law must “minimally impair” the right. In other words, if there is a way to accomplish the same goal that does not impair religious freedom as much, the law is unconstitutional. Finally, even if the law has benefits in terms of the legitimate objective, and even if these benefits could not be achieved in a less religious freedom–impairing way, the court could still decide that the bad effects outweigh the good ones.

The Liberals have a better shot at persuading the Court of the proportionality of the measures they propose than the PQ would have had with Bill 60.

The most vulnerable provisions would be the ones regarding receiving public services, because the impact on dignity and ability to participate in society are most intense. It will be argued (in my view, correctly) that preventing women wearing veils from accessing public services undermines the gender equality it is supposed to promote by further isolating an already marginalized group of women. The Court has, in some circumstances, upheld government requirements that women with religious objections to doing so show their faces – on drivers’ licences and in courts. However, it has done so where there is an obvious utilitarian explanation for why removing a face covering is necessary or at least desirable. A broad ban might well be (and, in my view, should be) seen as too restrictive, although courts might give a lot of weight to government concerns about identification.

Restrictions on religious expression by those providing public services would be given more leeway, but should also be tied to a utilitarian justification. When Bill 60 was being debated, the opposition parties proposed restricting its application to relatively few state officials. While the Supreme Court reacts well to moderation, this seems hard to justify in principle. If it is inappropriate to stop observant Sikhs from being traffic cops, it is equally inappropriate to stop them from being judges.

The harms that legislative restrictions on religious dress would be intended to remedy seem, certainly to most English Canadian observers, to be symbolic at most. The denial of public services to women covering their faces for religious reasons seems particularly difficult to justify. Should the Liberals introduce legislation to the same effect, it will be argued (I think rightly) that this just isolates and punishes the women the law is supposedly intended to benefit.

The composition of the Supreme Court has changed since the last major religious freedom cases, and the issue has far more salience than it ever did. Past cases leave a lot of wiggle room, so this composition may make a difference. Social scientists suggest that high courts usually reflect the elite consensus as the national level. Since that consensus was strongly against Bill 60, the best way to bet was that it would have been struck down. Time will tell whether a similar national elite consensus develops on the Liberals’ alternative, but, if it does, expect invalidation.

While visiting London in the summer of 1857, the Baron Carl de Gleichen, a man of complex nationality and advanced views, was set upon by denizens of the Victorian underworld and robbed. His assailants were caught and brought before the Marlborough Street Police Court. However, because the baron would not say he believed in a future state after death in which he would be “rewarded or punished according to his deserts,” they were set free. At English common law, the baron could not take an oath if he did not think a supernatural force would punish him for breaking it,1 and since he was the only witness, there was therefore no evidence with which to convict.

In 1992, an Ontario high school student – known to us as “N.S.” – told a trusted teacher that she had been repeatedly raped by her cousin and uncle from the age of six. Her family did not want to take any action and the police did not lay charges. It is hard to imagine N.S. had the self-confidence generations of privilege and freethinking had bred into the baron. Fifteen years later, though, she tried again. A Crown prosecutor was sufficiently persuaded of the plausibility of her evidence to allow charges to proceed. By this time, N.S. had developed the religious conviction that she must wear a niqab, a veil that covers her entire face other than her eyes, when in the presence of men outside her direct family.

Although they attended the same mosque as N.S., the accused men asked for a court order that N.S. remove the niqab while testifying. They argued that only by seeing her face could the judge or jury tell whether she was lying. As a result of a complex decision released by a divided Supreme Court of Canada in 2012, we do not know whether N.S. will be compelled to choose between obeying her religious convictions and testifying against her alleged assailants.2 On the basis of the Supreme Court decision, an Ontario Court judge has decided that N.S. must remove her veil to testify; she plans to appeal. In any case, it is clear that some Muslim women will not be allowed to testify in Canadian courts if they will not show their faces.

Religious belief and the competence of witnesses

Google remembers Baron de Gleichen today because his treatment by the English criminal justice system outraged John Stuart Mill:

This refusal of redress took place in virtue of the legal doctrine, that no person can be allowed to give evidence in a court of justice, who does not profess belief in a God (any god is sufficient) and in a future state; which is equivalent to declaring such persons to be outlaws, excluded from the protection of the tribunals; who may not only be robbed or assaulted with impunity, if no one but themselves, or persons of similar opinions, be present, but any one else may be robbed or assaulted with impunity, if the proof of the fact depends on their evidence … Under pretence that atheists must be liars, admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obloquy of publicly confessing a detested creed rather than affirm a falsehood.3

Outlawery was the gravest punishment of the Anglo-Saxon legal order because an outlaw could be subjected to violence with impunity, and Mill knew the term resonated with his Victorian audience. He pointed out that the protection of the criminal law does not extend to a person who cannot give evidence in court. He had enough imagination to see that a judge or jury drawn from mainstream society will discount the honesty of a person who conscientiously holds minority opinions more than they should, and that there is therefore no danger that such a person’s evidence will be given excessive weight. By holding on to this “relic of persecution,” society injured both the religious liberty of its freethinkers and its own safety.

On Liberty is a favourite of undergraduate education in political theory and philosophy. It is clearly written and reasonably short, and easily inspires classroom discussion about the implications of the harm principle for censorship of pornography and hate speech. As an undergraduate, I must have been assigned it at least three times. But I don’t remember anyone lingering over the case of Baron de Gleichen. Classroom time is scarce, and I suspect it would have seemed too easy: an aftereffect of religious bigotry without any plausible secular justification that was anachronistic even at the time. Debates about the limits of freedom of speech were burning ones in the social science and humanities faculties of the early 1990s, but debates about the relationship between religious beliefs and the competence of witnesses in court proceedings, if we had thought about them at all, would have seemed about as relevant as the divine right of kings.

N.S.’s case shows we would have been wrong: de Gleichen’s case was not an easy one, and when faced with similar issues today, there is no guarantee we will get them right. With the exception of Justice Rosalie Abella, who consciously or unconsciously echoed Mill, the judges of Canada’s highest court decided that juries cannot be trusted to weigh the evidence of a woman who braves the obloquy of wearing a niqab. In Mill’s terms, they have declared such women outlaws, excluded from the protection of the tribunals. Two justices would never allow the evidence of a veiled woman to go to a jury; the majority would give trial judges the discretion to allow it when the evidence of marginal importance, but not when it is central to the case and credibility is in issue. The issues Mill dealt with remain living ones. Questions of who can give evidence go to the heart of who is included in a society both because a person who cannot give evidence is outside the protection of the legal system and because evidence depends on a consensus on procedures for determining who can be trusted. We are still a long way from those procedures being rooted in science, which means they must depend on cultural expectations, which in turn are more rooted in religion than secular undergraduates are likely to realize.

Oaths and early modern English law

As is so often the case, condescension about the past blinds us to a more interesting story. In fact, easy as it is to forgive him, Mill was unfair to the authors of the common law rule he decried. They were relative cosmopolitans who acted not out of religious bigotry or hatred but from purely secular motives.

Like most legal rules in those days, the “rule in Omichund v. Barker” arose out of concrete litigation. Barker was an Englishman trading in Calcutta in the first half of the 18th century, before British dominance was established in India. He ran up a large debt with a local merchant, Omichund, and sailed home rather than pay it. In 1744, Omichund sought the assistance of the English courts in enforcing his debt. The English Court of Chancery allowed for written depositions under oath from residents of foreign countries, a process that gave it a lot of international commercial litigation. Omichund’s witnesses swore an oath in accordance with Hindu custom and Barker objected that only Christians could swear an oath that would be admissible in an English court.

The issue was of enough importance that the Lord Chancellor asked the chief justices of the other English courts to convene a panel to rule on it. Britain’s growing power depended in large part on the ability of its newly independent legal institutions to ensure commercial security, which would be undermined if they could not accept evidence in commercial matters from outside the Christian world. But secular law was still closely associated with Christianity. The Lord Chancellor himself, although no longer usually an ecclesiastic, still played a significant role in appointing bishops of the Church of England. More importantly, the law was extremely concerned about perjury and tightly restricted who could testify in a case. Parties and spouses of parties could not testify in their own case. People under 21 could not testify. Perhaps the most influential common lawyer of all time, Lord Coke, had specifically said that “infidels” could not testify.

The opinion that comes down to us was that of the Lord Chief Justice of the Court of Common Pleas, Sir John Willes. Willes was by all accounts a worldly Hanoverian gentleman. According to Horace Walpole’s catty but entertaining memoir, Willes’s passion for gaming “was notorious; for women, unbounded.” Willes recognized it was “greatly to the advantage of this nation to carry on a trade and commerce in foreign countries.” He also recognized how important it was that an oath be regarded as binding by the person swearing it. Willes had the education in classical and biblical literature to easily demonstrate that oaths are universal institutions long predating Christianity. What mattered was not whether Omichund’s witnesses’ beliefs were true, but whether they created a motive to be honest. Willes and his fellow chief justices told the Lord Chancellor that Omichund’s evidence should be admitted.

Indeed, Willes’s rhetoric sometimes reminds the modern reader of John Stuart Mill. Willes denounced the “little mean narrow notion that no one but a Christian can be an honest man.” Still, as a betting man he was quite concerned about probabilities, and he was prejudiced enough to give the prior probability of a Christian’s telling the truth a higher estimate. Willes said Christians were “under much stronger obligations to swear nothing but the truth” than those who subscribed to other religions. But he also assumed, no doubt correctly, that English judges and juries would think likewise and could safely be entrusted with the decision of how much weight to give infidel witnesses.

This was an important breakthrough in an era when the ability to give evidence was so restricted by rules based on reliability. Willes was the product of a legal system that took the propensity of human beings to perjure themselves for granted and did not particularly trust juries to figure things out: that is why the system would not let anyone with an interest in a case testify. Omichund actually represents a landmark in the development of the more modern principle of evidence according to which anything relevant can usually be admitted unless there is good reason to think people have cognitive biases that mean they will put much more weight on the evidence than they should. Of course, common sense is imperfect and subject to prejudices, which no doubt sometimes put Hindu creditors at a disadvantage relative to their defaulting Christian debtors. On the other hand, while they were at a disadvantage, they were not excluded. Non-Christians could continue to use English courts; British commerce could continue to build on reliable legal institutions.

Willes stipulated the limit that caught the baron a century later as follows: “Such infidels (if any such there be) who either do not believe in a god, or, if they do, do not think he will either award or punish them in this world or in the next, cannot be witnesses in any case.” As his parenthetical remark suggests, Willes was impressed by the universality of oath-taking and did not seem to think there was anyone who failed to give it supernatural sanction and would therefore be caught by the rule. In any event, he needed a limit because he needed the oath. The 18th century had no great faith in human honesty. The oath was both a ritual and a technology for distinguishing statements on the basis of which a person’s life or property could be taken.

By the time Mill wrote, the era of parliamentary legal reform had begun. Protestants in the Anabaptist tradition who believed Matthew 5:34 prohibited oath-taking4 were a loyal part of the Liberal-Radical coalition, which had introduced legislation to allow for “solemn affirmations.” This legislation excluded atheists and did not change the common law requirement of belief in supernatural enforcement in relation to oaths. However, it was relatively easy to imagine extending affirmations to freethinkers and atheists, and by the end of the 19th century, this had occurred.

It remained open to 20th-century juries and judges to give greater weight to the testimony of witnesses who appear to think they will be subject to divine wrath if they do not tell the truth. In fact, difficult as it is for me to admit as a secular person, this may be a valid statistical generalization; the question of the impact of religious belief on truthfulness and other prosocial behaviour is a complicated one. While empirical sociologists in the sixties seemed to show a lack of correlation between antisocial behaviour and lack of religious belief, subsequent results are, well, complicated.5 Suffice to say that while Mill and Willes were definitely right about a lack of any necessary relationship between religious belief and honesty, Willes may have been on to something about the way to bet. There is no real reason to think that ordinary people are systematically deluded about these effects and, even if they were, long before the Charter of Rights, no one thought it would justify denying secular people the protection of the tribunals. Richard Dawkins himself can visit Toronto secure in the knowledge that if he is mugged on Philosopher’s Walk, he will be allowed to testify about it. We have made that much progress.

The Canadian conception of freedom of religion from the eighties to the present

At this point, the reader will already be anticipating that I will argue that the solution our great-grandparents came up with in relation to atheists and freethinkers in the 1890s ought to be extended to women whose interpretation of Islam requires them to wear the veil in court today, and may have framed some objections. Some may think there is just a more rational basis for worrying that testimony by veiled women will lead to inaccurate verdicts than was the case with enlightened barons. That objection will be addressed when I get to the Supreme Court’s own reasons. It turns out that the evidence, such as it is, says the opposite.

But a different objection demands a digression before we get there. A rule requiring a witness to swear to a belief in supernatural consequences for perjury differs from a rule requiring witnesses to reveal their faces when testifying. The question of supernatural consequences for perjury specifically refers to religious or metaphysical belief, while the question of whether one must reveal one’s face does not. On its own terms, the common law would not accept Baron de Gleichen’s evidence because of his sincere religious convictions. In contrast, the rule announced by the Supreme Court does not say N.S. must testify in a certain way because she is Muslim: rather, her interpretation of Islam means she cannot conscientiously follow the rule.

The most fundamental issue in the law of freedom of religion is whether this distinction matters. On one view, a law does not interfere with freedom of religion as long as it is written in general terms and is not motivated by religious bigotry: if a religious believer feels she cannot comply with it, that is her problem – the law is fine. In 1990, in Oregon v. Smith, a majority of the American Supreme Court endorsed this limited view.6

The case was brought by adherents of the Native American Church, which prescribes the use of peyote in its rituals. The adherents claimed an immunity from the general Oregon law prohibiting possession of peyote. The majority of the highest American court said the right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” A more militant version of this objection holds that allowing exemptions from general rules based on religious beliefs is itself a violation of state religious neutrality – a concept associated with “strict separation” in the United States and laïcité in France.

Oregon v. Smith was immediately controversial. If it is right, then religious freedom has very little contemporary relevance, since laws almost never single out religious belief, but majoritarian practices often cause problems for believers. The U.S. Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993 in specific response to Oregon v. Smith. The authors of the RFRA decided that free exercise of religious freedom needs to be protected by giving courts or other bodies the power to scrutinize general laws that have the possibly unintentional effect of interfering with sincere religious practice. A law stipulating that everyone must work on Saturday or accept blood transfusions is no big deal for a Methodist, but on this broader view would render Orthodox Jews and Jehovah’s Witnesses less free.

Until the decision in N.S., it was uncontroversial in the Supreme Court of Canada, although not in the political sphere, that the broader view of religious freedom was the right one. If a general law or policy substantially interferes with a person’s ability to act in accordance with his or her sincere religious beliefs, then it offends that person’s freedom of religion under section 2(a) of the Charter of Rights and Freedoms. It cannot matter whether the sincere religious belief is a reasonable one from the point of view of a secular court and there need not be any religious motivation to the law or policy.

There is a catch, though – there has to be. Some sincere religious beliefs (for example, a belief in human sacrifice) would be completely intolerable if put into practice. Some in the media remarked that the N.S. case involved a “contest of rights” since the accused men complained that if N.S. could testify without showing her face, their right to a fair trial would be compromised. In fact, this problem is universal in freedom of religion cases. They are all contests of rights. Any law or policy has at least a perceived benefit, and therefore removing it, or even exempting a subsection of the population from its effect, has a corresponding cost. Someone must pay that price, and it is in the nature of freedom of religion cases that religious belief will be a determining factor in who that is. If my coworker cannot be required to work on Saturdays because she views them as sacred, then I must take her shift precisely because I do not share that belief. The problem is reasonably tractable in a society in which there is a secure and normative religious tradition that agrees to accommodate everyone else in exchange for its dominance. Canada is increasingly not that type of society.

Judges cannot solve this problem, but they can negotiate it. Canadian judges do so by invoking section 1 of the Charter, which affirms the protected rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Courts take a look at the secular justifications for the policy and decide whether the burden imposed on the believer is greater or less than the burden on society of choosing some alternative. In practice there is no metric with which to measure the weight of a burden on a sincere religious belief, so the court really considers how compelling the secular justifications for the law or policy are.

The result is that freedom of religion cases do and should turn into grubby exercises in analysis of often technical policies. Those seeking grand principles will not find them. Sunday observance laws are not acceptable as criminal prohibitions, but are fine as labour regulation. Observant Sikhs need not wear hard hats on construction sites, and their children may wear ceremonial daggers in public schools, but Jehovah’s Witnesses under 16 cannot prevent medically necessary blood transfusions. Observant Jews can set up a succah on commonly owned property contrary to the terms of a declaration of co-ownership, but a Hutterite cannot refuse to provide a photo for a driver’s licence.7

The results in these cases are not easy to predict. Many of the decisions were accompanied by strong dissents, so that all we can say about the result is that it got the most votes in an electorate of nine. But any legal regime will have hard cases, and hard cases are the ones that will go to the highest court. The more fundamental objection comes from those who believe religious freedom requires a strict and formal theological neutrality from the state, a neutrality that is inconsistent with all this balancing and accommodation. But after being buried so overwhelmingly by the Supreme Court early on, is this alternative conception capable of revival?

The Supreme Court rarely explicitly refers to public controversies it may become embroiled in, but there is little doubt that it is aware of them. The basic framework of analysis for religious freedom in Canada dates back to the 1980s, when it had extremely low political salience. Economic forces and consumer demand pushed Canadians toward Sunday shopping faster than the courts did, and hardly anyone really cared about Sikh construction workers wearing hard hats.

Anxieties created by Canada’s changing demographics remained below the surface, at least from the perspective of elite opinion. September 11, 2001, brought to the fore an anxiety about Islam in particular that has always existed in Western civilization. Because the Canadian political system is not well designed for an open discussion of the optimal amount of assimilation of recent immigrants, the topic plays out in populist sociodramas.

The 2006 Multani decision permitting kirpans (ceremonial daggers) in schools triggered one such, when the town council of the village of Hérouxville, Quebec, enacted a charter for new immigrants forbidding both the use of kirpans and the wearing of the niqab and hijab. Premier Jean Charest reacted to the subsequent controversy by appointing sociologist Gérard Bouchard and philosopher Charles Taylor to head a public inquiry into “Accommodation Practices Related to Cultural Differences.” When Bouchard and Taylor reiterated much of the orthodoxy about religious accommodation in their 2008 report, it met with a cool reception from the public. All three provincial parties immediately rejected its recommendation that the crucifix hanging in the National Assembly be removed.

While the Charter and multiculturalism in the abstract remain enormously popular in Canada, the low salience of accommodating religious minorities and apparent consensus in favour of such accommodation no longer seem to exist. A 2008 poll by the Insitute for Research on Public Policy showed 53 per cent of respondents opposing accommodation of religious and cultural minorities in comparison with only 18 per cent supporting that approach.8 Although the heroic rhetoric of constitutional judicial review would hold that courts ignore public opinion, Multani remains a high-water mark for constitutional religious accommodation, which has not done as well in the highest court since then.

In N.S., the majority of the Supreme Court continues to analyze religious freedom issues in more or less the old way. The issue is still how big a deal it would be to change the secular rule, with the Chief Justice and three others deciding it would be too big a deal in most circumstances, while Justice Abella concludes that it would not. However, two justices, LeBel and Rothstein, seem to me to abandon the historic Canadian analysis entirely, albeit not explicitly. Their decision does not follow the familiar (to Canadian constitutional lawyers) steps of justification of limitations of rights, but simply asserts that court proceedings are a communication process and “wearing a niqab … does not facilitate acts of communication.” However, they do not really try to justify a new departure along the lines of Oregon v. Smith, a departure that would require backing away from three decades of decisions.

Of course, the reader of Inroads is not subject to the institutional constraints of Supreme Court justices, and can decide that we made a bad turn with the Sikh hard hat case. At least in the long run, supreme courts tend to follow national elite opinion, and I cannot claim that there is a drop-dead logical argument that compels us to avoid the path of Oregon v. Smith on pain of self-contradiction. But to me the lessons of Omichund v. Barker suggest that we should not follow that path.

It is obvious that Baron de Gleichen’s religious freedom was violated, as was the freedom of other skeptics who had to pretend to believe in a deity to get ordinary criminal and civil justice. It’s not that the rule that caught him up was explicitly theological in motivation; it’s just that the reasons for that rule were not really good enough when society was actually confronted with the need to think about them. And yet it’s only with the broader conception of religious freedom we have had since the eighties that the need to think about our reasons arises. And surely we owe N.S. very good reasons if we are to expect her to recognize the legitimacy of a system that allows violence against her to remain unpunished.

The broader conception of religious freedom at least provides a framework for requiring such reasons, but for there to be more than a framework, the court’s scrutiny needs to be a searching one. In cases like N.S., where the traditional rule was made by the courts themselves, we should be skeptical that such scrutiny will really be forthcoming. To see why, we need to turn to the decision itself.

Not necessarily removal,
but removal if necessary

Frank Scott famously suggested that William Lyon Mackenzie King would not let his “on the one hand” know what his “on the other hand” was doing. Chief Justice McLachlin would perhaps not appreciate the comparison, but she is comfortable portraying her decisions as treading a middle path between two extremes:

A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified. On the other hand, a response that says a witness can always testify with her face covered may render a trial unfair and lead to wrongful conviction.

In the end, the Chief Justice gives trial judges the discretion to order the niqab removed or not, depending on the importance of the evidence and the possibility of a case-specific compromise. Not necessarily removal, but removal if necessary.

As I hope the digressions about Omichund v. Barker and past religious freedom jurisprudence show, the Chief Justice was exactly right about the problems with such a “secular response.” However, in light of this, and even more importantly in light of the fact that excluding N.S.’s evidence renders her an outlaw in precisely Mill’s sense of subjecting her to violence with impunity, the burden of proof is surely on the Chief Justice to show when testimony with a face covered poses a risk of unfair trials and wrongful convictions.

In fact, as the Chief Justice acknowledges, the cognitive science evidence is the other way. The evidence before the court at first instance, and the bulk of the articles submitted on appeal by various interveners, supports the basic finding that people are likely to overestimate how much they can tell about a witness’s truthfulness by looking them in the face. The Chief Justice noted that the evidence before them was fairly weak, and I sympathize with a demand by the Court for better social science before we dispense with common sense and tradition.

The problem, though, is that the Chief Justice ignores the possibility that a contextual case-by-case balancing can be done by the jury. They are the ones chosen for common sense and the ability to distinguish lies and errors from truth. Juries are not perfect, and cognitive science can reveal biases that really do cause wrongful convictions. The most important is probably sincere but mistaken identifications. Lots of evidence suggests that juries and judges give far more weight to these than they should (unfortunately, the court system has been very slow to correct this bias). Another is forensic science, where juries (and, unfortunately also judges) have a propensity to be bamboozled by confidently presented work that may be subject to all sorts of biases.

However, even if the Chief Justice was unwilling to accept the evidence that juries and judges are overconfident about their ability to tell whether someone is lying by looking at them (demeanour), there is absolutely no reason to think they err in the opposite direction. There is no reason to think that an ordinary jury, in a country where a majority of people would ban the niqab if they could, will give too much weight to the words of a woman who will brave the obloquy of publicly confessing to a detested version of a marginalized creed.

Defence lawyers can, and will, draw the attention of juries, or of judges sitting alone, to the fact that they could not see the complainant’s face in sexual assault trials. It is far more likely that this will raise a “reasonable doubt” when it should not than that it will fail to do so when it should.

As Justice Abella pointed out, we allow people whose facial features have been frozen by accident or illness to testify. The Charter itself guarantees the right to an interpreter, even though that obviously reduces the ability of juries and judges to “read” a witness. The Court has relaxed the traditional rules against hearsay, effectively allowing out-of-court testimony that cannot be seen at all when there is no better evidence. In the absence of a clearly demonstrated cognitive bias, none of this is unfair if the defendant can poke holes in it.

While I think we should be glad that the Court’s majority has left the door open for future courts to look at better cognitive evidence and let women wearing niqabs testify, I fear this will be unrealistic in sexual assault cases. The effect will be to render those women outlaws – cruelly ironic in light of the usual objection to the niqab as oppressing those very same people.

Chief Justice McLachlin is a reasonable, moderate person, as was Chief Justice Willes three centuries ago. In both cases, the decisions could have been much worse, but both have had the effect of creating outlaws based on religious convictions. I hope the next generation of legal leadership can do better.

Continue reading “Veils of ignorance”