Court off to bad start

For centuries the House of Lords was the highest court of appeal in England, although more recently the full Lords did not actually hear cases, which in 1876 were delegated to the Lords of Appeal in Ordinary, or the Law Lords. As of 1 October, however, this body's jurisdiction was turned over to a new Supreme Court of the United Kingdom, the membership of the former becoming the first justices of the latter, thereafter losing their right to vote in the upper chamber of Britain's Parliament.

Right off the mark the court has created controversy in ruling against London's JFS school, which had declined to enrol a certain "M" whom it judged to be further down the waiting list with respect to eligibility for admission.

The 12-year-old boy was refused a place at the JFS (formerly known as the Jews' Free School) in Brent, north London, despite regularly attending a Progressive synagogue. While his father is Jewish by birth, his mother is Jewish by conversion. However, the conversion ceremony was conducted by a Progressive rather than an Orthodox synagogue, which is not recognised by the Office of the Chief Rabbi. The children of atheists, and practising Christians, were allowed to attend the school as long as their mothers were considered Jewish.

For those of us who remember the civil rights struggles of the 1950s and '60s in the US, the school's action sounds like a clear case of racial discrimination which the Court rightly prohibited. Yet all communities set boundaries around themselves, necessarily including some people and excluding everyone else. Sometimes biology sets the boundaries, as the female half of humanity obviously excludes men. Similarly, marriage is an intrinsically exclusive institution anchored in sexual complementarity between a man and a women, who, as the marriage vows put it, forsake all others for each other alone.

Religious communities generally find their identity in shared ultimate convictions about God, the world and our place in that world. Sometimes, but not always, these convictions are summarized in a binding confessional document such as the Augsburg Confession or the Heidelberg Catechism. Christianity is deliberately multiethnic, embracing a huge variety of peoples and cultures around the globe, as indicated at the very outset of the christian era in Galatians 3:28.

Judaism has always been different. To be sure, Judaism consists of certain tenets embodied in the Tanakh and such ancillary writings as the Talmud, which suggests a common confessional identity. Yet one of these beliefs is that God made his covenant with the biological descendants of Abraham more than three and a half millennia ago. God has a unique and exclusive relationship with these descendants whom he freely chose for his own out of all the other nations on earth. He gave them his Torah, or teachings, and commanded them to follow its precepts. God designated circumcision as the mark of the covenant, and this mark was often an offence to conquering nations, such as the Greeks in the 2nd century BC, who ruthlessly persecuted the Jews for not conforming to hellenistic ways (2 Maccabees 6-7).

This scandal of particularity continues to be an offence to non-Jews, as is evident in this recent court case. I must say that my heart is with the boy's parents, who desire a Jewish education for him. For the school to exclude him because it doubts his mother's conversion seems unfair. That the school doubts further, not the sincerity of this conversion, but merely the procedure compounds the sense of injustice that many of us feel. Nevertheless, our feelings are not the only things at stake, nor are they the most crucial issue, especially as far as the law is concerned. The central issue is whether a public court of law has the authority to decide who is a Jew and who is not. That the new Supreme Court is claiming this authority has negative implications for other religious communities as well.

The predominant liberalism of the English-speaking democracies would reduce all communities to mere voluntary associations. Of course, there are groups of Christians, especially those in the baptistic and free church traditions, that see their own churches precisely as democratically-governed voluntary communities of believers. However, the vast majority of Christians do not do so, recognizing their eccesial communities as authoritative institutions anchored in God's grace, as manifested in preaching the Word and administering the sacraments. (This roughly corresponds, though not entirely, to the difference between Ernst Tröltsch's sect and church.) Yet even those Christians embracing a voluntaristic ecclesiology should not wish to see the state, through its judicial arm, impose this on all religious groups, as that would see the state overextending its proper sphere of competence to the detriment of everyone, as David Goldman warns.

Because Britain does not have a written constitution, its Parliament has the authority to curtail the new court's jurisdiction, as it deems necessary. Whether it will have the will to do so is another matter. Given the reluctance of Canada's legislatures to invoke Section 33 of the Charter of Rights and Freedoms against questionable judicial decisions, it seems unlikely that Britain's Parliament will intervene, especially as the Court's decision appears to accord so well with current individualist understandings of equality and nondiscrimination.

Rights, freedom and justice

The following article appears in the new issue of Christian Courier dated today:

In our postchristian society, appeals to human rights have become the functional equivalent of the biblical prophets’ “thus saith the Lord.” They are treated as the final word on a subject, and those disputing such appeals are likely to be marginalized as heretics. In such a climate, some people are tempted to give up altogether on the concept of rights, simply because so many tend to use it as a justification for subjective wants. Yet the abuse of something cannot rule out its legitimate use. There are two foundational problems with the current legal climate surrounding rights.

First, we tend to assume that all rights are justiciable, that is, properly to be brought before a judicial or quasi-judicial body to be settled in case of a claimed violation. However, this is an erroneous assumption that is incompatible with constitutional government and a recognition of the legitimate multiplicity of legal spheres. Matilda can be said to have a genuine right to her husband Frank’s love. Yet the state cannot force Frank to love his wife, because spousal love lies outside the proper competence of governmental authority.

So how would a violation of such a right be addressed? Primarily within the marital context itself. If Matilda feels that Frank is not paying enough attention to her, she does not complain to a human rights commission; she takes it up with Frank by reminding him of his responsibilities as husband. If this has no effect and if Frank stubbornly refuses to listen to and love her, there’s always the possibility of divorce. Yet even in this case the state has not really forced Frank to love Matilda; it has simply recognized the dissolution of their marriage. To be sure, the state has stepped in here, but only as a last resort. Respecting and protecting spousal rights properly belong to the spouses themselves, and perhaps to those who witnessed their vows. Government does not create these rights; it only provides a legal backup in case the marital community irreparably breaks down.

Second, the late Sir Isaiah Berlin famously distinguished between negative and positive freedoms, between “freedom from” and “freedom to.” In the past most bills or charters of rights limited themselves to protecting certain negative rights, including those to freedom of speech, religion, press, association and the like. Such rights call on government simply to refrain from breaching them. No extra expenditure of funds is required. In fact, a government may actually save money by closing down an agency responsible for censoring books, periodicals and broadcasting. In so doing it is recognizing that there are certain activities lying beyond its normative competence.

When we get into the realm of positive freedoms the issue of rights becomes more complicated. In a democracy, of course, government undertakes to protect the right to vote, which is the most basic positive right. However, “freedom to”, if wedded to an expansive notion of rights and their justiciability, is incompatible with a recognition of limits to government. If I claim to have a right to nourishment, does that obligate government to force the local grocer to provide me with food?

If I claim a right to have my idiosyncratic lifestyle choices affirmed by society, does this entail government forcing others to express support for me and shutting down all expression of disapproval? If so, that does not fit at all well into a robust notion of constitutional government. Yet this is where much of North America appears to be going at present.

Repealing our Charter of Rights and Freedoms is not the answer. What needs to be changed is the willingness of our courts to treat mere policy aspirations as potential rights; instead they should return them to the ordinary deliberative processes crucial to representative government.

The pluriformity of legal spheres

For the past half millennium, since the rise of legal positivism, i.e., the belief that law is rooted in a sovereign legislative will, the popular mind has simply assumed that all law is a creature of the state. The Reformed Christian concept of sphere sovereignty and the Catholic principle of subsidiarity have been part of a larger effort to combat this statist conception. Seemingly following this tradition, John E. Coons writes In Defense of the Sovereign Family, an essay worth reading. Coons writes:

The original form of the American Constitution may be read as reserving to the individual states the authority to occupy law’s entire province, minus the federal fraction. But language expressly limiting the range of governmental law entered the national text in 1791, as nervous founders added the Ninth and Tenth Amendments in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The most obvious aim of these reservations was to create a hedge against tendencies to monopoly not by the states but by the new federal regime. But, in doing so, they also by implication limited the power of the states to occupy all of the remaining range of lawmaking. Given the references to “the people,” it is hard to read these texts as an invitation to a local monopoly by, say, Oregon or Wisconsin. The people hold ground of their own in both amendments. The word or in the Tenth Amendment even makes the individual state and its people competitors in the creation of law, suggesting that the two could exercise their powers contrarily within the uncharted zone.

This is not, of course, a matter of the US Constitution creating space for so-called civil society to exercise its proper jurisdiction. Rather, the document merely acknowledges the prior existence of such space: "The Constitution contains a clear textual recognition that ideas—and even rules—about the common good can originate outside the state and be entitled to dignified reception (“not . . . disparaged”) when presented for recognition as law" (emphasis mine). Coons continues:

A clear judicial recognition that parents are an independent source of law for their children—making and enforcing commands that no state or federal government can preempt or forbid—would have profound practical consequences. In the years to come, conflicts between agencies of the state and parents are likely to increase, and courts will be asked, more and more, to reexamine the limits of the parentocracy. Wealth and improving technology will constantly present new options for parents. The educational versatility of the Internet is making homeschooling easier and more attractive, for instance, letting more parents remove their children from the direct influence of the public-school system; already advocates of conscriptive public schooling worry that these children will not be properly socialized and given correct information about sex, medicine, the environment, or what­ever these advocates feel they need.

The significance of all this, however, depends less on who wins particular cases than on which of two master images dominates the consciousness of the nation’s judges: the image of delegation to parents from the monopoly state, or the counterimage of a sovereign parentocracy.

The former is the vision of legal positivism while the latter is the vision of what might be called the pluriformity of legal sphere, as articulated in sphere sovereignty and subsidiarity.

It is by no means coincidental that the widespread acceptance of legal positivism has produced a climate in which governments claim the right, not simply to adjudicate the boundaries of such essential institutions as marriage and family, but even to redefine them outright. Ironically, it is the very liberal individualism that would reduce such institutions to mere voluntary associations that calls upon the state actively to support this reductive vision. Over the long term individualism leads inexorably to statism.

If, on the other hand, these institutions exist, not only apart from the will of government and the wills of constitutive individuals, but as genuine spheres of law rooted in something beyond the human will, then government is obligated to respect their spheres of legal competence and to refrain from interfering in their internal life unless absolutely necessary to the doing of public justice. But this requires that the state abandon the "master image" of its own legal omnicompetence.

It can't happen here

Could this be true: Fascism has come to Canada? And this, not from an overtly nationalist or racist political party, but from a series of tribunals charged with protecting our human rights! David Warren summarizes the situation:

Among the spookiest aspects of these cases is the silence over, and indifference to them, on the part of journalists whose predecessors imagined themselves vigilant in the cause of freedom. As I’ve learned first-hand through email, many Canadian journalists today take the view that, 'I don’t like these people, therefore I don’t care what happens to them.' It is a view that, at best, is extremely short-sighted.

One hopes and prays that Catholic Insight and Warren are overstating their case. Nevertheless, it is clear that our historic right to freedom of speech, ostensibly protected by the Charter, is being eroded. If that ends up curtailing debate over important political issues, Canada's democracy will go with it.

Second-guessing America's founders

This is not officially part of my series on authority, but I thought I should take this opportunity to mention a book I've been reading, titled Civilizing Authority: Society, State, and Church, edited by Patrick McKinley Brennan. It contains a number of essays worth noting, especially "Society, Subsidiarity, and Authority in Catholic Social Thought," by Russell Hittinger, who defines subsidiarity in a remarkably (but, one assumes, inadvertently) Kuyperian direction; and "A Rock on Which One Can Build: Friendship, Solidarity, and the Notion of Authority," by Thomas Kohler, who comes strikingly close to Dooyeweerd's modal analysis. But the most intriguing essay comes from J. Budziszewski, who writes on "How a Constitution May Undermine Constitutionalism."

Two years ago in Ottawa I met a scholar who has spent much of his career analyzing the growing power of Canada's courts since patriation and its impact on our political system as a whole. Having recently visited Australia, I had noticed that something similar has occurred in that country, despite the absence of a justiciable bill or charter of rights. I asked this scholar why the expansion of judicial power appears to be so universal in western, and particularly English-speaking, democracies. His answer didn't stick with me, but I seem to recall that he was as puzzled as I at the underlying reasons for this phenomenon.


Budziszewski has now offered a compelling response, with a focus, to be sure, on the American context, but with implications for other federal systems as well, including those of Australia and Canada. Students of American government are generally familiar with the Federalist Papers, or The Federalist, a series of essays written, under the pseudonym Publius, in defence of the new federal constitution by James Madison, Alexander Hamilton and John Jay. The best known of these are numbers 10 and 51, the latter of which defends the internal checks and balances within the federal government itself.

By contrast, few Americans are aware of the Anti-Federalist Papers, written pseudonymously by opponents of the new constitution, one of whom took the name Brutus. Budziszewski focusses on numbers 11 and 12, where the author sets forth his reservations over the expansion of judicial power and its concomitant tendency to expand the legislative power as well. In particular, Brutus

recognizes that a written constitution is not merely a statement of political ideals, but a legal instrument. It is all well and good to say that the three branches [legislative, executive and judicial] shall be coequal, but the courts normally interpret legal instruments. A differently drafted legal instrument might have distributed the power of interpretation among all three branches. It might have identified particular respects in which the legislature, the executive, and the judiciary are each interpreters of the constitution. What the Constitution actually does, argues Brutus, is just the opposite. Rather than distributing the power of interpretation, it concentrates it in the courts. To make matters worse, he holds, the language by which this is done encourages judges to exercise this concentrated power of interpretation in extravagant ways that bear but a distant relation to what the Constitution actually says (p. 148).

It is a truism that the American founders fragmented government and distributed sovereignty among the three branches to prevent any one of them becoming tyrannical. This is what Americans have been taught for generations, the assumption being that the founders had a solid grasp of human nature and the tendency of people to compete with each other for various social and political goods. From my own American upbringing, I recall that Christians in particular viewed the founders as fellow believers who understood the sinfulness of man and thus placed checks in their proposed constitution to counteract its effects. This sounded good in theory. The founders were apparent realists in their estimation of human nature, while liberals and socialists of various stripes had an overly rosy view of man's potential.

Yet what if the founders too were working with a defective anthropology? Could they have imbibed a modified Hobbesian anthropology, perhaps by way of John Locke? Hobbes holds that human beings are creatures of restless desires and, left to their own devices, ruthless competitors for the means of survival. Hobbes famously argued that the prepolitical state of nature is characterized by a war of all against all. Locke, of course, could not bring himself to follow Hobbes' logic in its entirety, admitting only that the state of nature could degenerate into warfare if conditions were favourable. Hence the need for civil government to preside over this competition and to make it more manageable and less potentially deadly. As for government itself, its members are as prone as everyone else to compete for valued goods. Hence, following Montesquieu, the founders adopted a constitutional framework that would divide sovereignty amongst the three branches and between federal and state governments.

So many Americans have accepted this reasoning that they have difficulty imagining an alternative. Here is where, taking Brutus and Budziszewski as a springboard, I would make the following argument, which I believe is more congruent with a biblical worldview: the line between good and evil does not run between co-operation and competition, as so many have believed, but through each. Our own socialist New Democratic Party began life as the Co-operative Commonwealth Federation, on the assumption that economic co-operation is better than the competition characteristic of capitalism. Yet those exalting solidarity over individuality ignore the fact that even organized crime is characterized by a certain solidarity amongst its perpetrators.

I would argue instead that both competition and co-operation have their legitimate places in human life. Competition can aim at narrow self-interest, but it can also be an incentive to service to others, as, e.g., in a charitable fund-raising marathon or even a large manufacturing enterprise supplying a needed good to the public. Similarly co-operation may be for the good of all, as socialists assume. But it can also be a means of collusion for purposes of price-fixing and other forms of corruption. Might the American founders have missed this element of human nature in their ostensibly "realistic" view?

Thus it may be that the expanding power of the courts has come with the blessing of the legislative branch. Here's Budziszewski again:

Another fact bolstering Brutus's case is that whereas federal legislators periodically face the electorate, federal judges don't. This makes Congress much more risk-averse than courts are. Rather than resenting the judiciary for taking hot-button issues out of its hands, the legislature may be relieved and grateful that someone else has made the decision for them (p. 153).

This is a conclusion I came to some time ago with respect to Canada. Since 1982 our courts have been making decisions that are increasingly imaginative and even in open conflict with the intentions of the drafters of the Constitution Act, 1982. We know this because, unlike the American founders, most of the players in the patriation drama are still very much alive! Given our convention of responsible government, a sitting government is reluctant to make decisions of a controversial nature. It is easier to leave such decisions up to the courts, who do not have to face the people. The Supreme Court's Reference re Québec secession is in many respects an ingenious decision that gave something to both sides and helped to prop up the federalist cause in Québec. Nevertheless, one would be hard put to demonstrate that the ruling was based on a close reading of our Constitution Acts, which nowhere mention secession.

Here in Canada we have Section 33, the Notwithstanding Clause, that legislators can invoke to override judicial decisions based on Sections 2 and 7-15 of the Charter of Rights and Freedoms. Yet over the past quarter century few legislatures, with the exception of Québec's National Assembly, have been willing to invoke it. I believe Budziszewski, drawing on Brutus, has now given us a credible explanation for this reluctance.

Incidentally, the copy of The Federalist shown above is from my personal library. It is a rebound edition dating from 1818, when two of the authors, James Madison and John Jay, were still alive.

Unnormed tolerance

A régime of imposed tolerance can be very oppressive indeed, as indicated by the decision handed down by the Ontario Human Rights Commission in Heintz v Christian Horizons. Here is Don Hutchinson's take on this: The Ontario's Human Rights Commission is trying to take the mission out of Christian Horizons. It is past time to rein in these tribunals for the sake of public justice. Because this decision obviously violates the Charter protection of freedom of religion, perhaps an appeal to the Supreme Court is in order.

Normed tolerance

At the weekend I was privileged to attend a conference on Civil Society and Sphere Sovereignty, sponsored by the Abraham Kuyper Center for Public Theology at Princeton Theological Seminary. The current holder of the Kuyper Chair is John R. Bowlin, whose full title is the Rimmer and Ruth de Vries Associate Professor of Reformed Theology and Public Life. Bowlin delivered a lecture titled: "Here the Shoe Pinches: Kuyper, Tolerance and the Virtues." (A taste of his approach can be had here.)

Is tolerance a virtue? Bowlin believes it is, and he attempts to defend this on Aristotelian grounds. Nevertheless, even if tolerance is in some sense a virtue, virtue itself is not an adequate place to start in any attempt to determine a right course of action. As a quality ascribed to human beings, virtue is necessarily ancillary to God's call and our obedience to that call. To obey his call is to respond to something quite specific rooted in the general command to love God and neighbour (Mark 12:29-31). This love has different implications for the various social and communal contexts in which we find ourselves. It cannot be adequately understood or practised unless we are in tune with the norms God has built into his creation. Otherwise, to tolerate an activity harmful to the practitioner, not to mention the larger community, is to perform a most unloving act!

To confess or deny the resurrection of Jesus Christ has different meanings within the institutional church and within the political community. Tolerating denial within the state might be seen as a political virtue in so far as it is based on a recognition that to regulate citizens' ultimate beliefs lies beyond the competence of political authority. Yet to tolerate this rejection of a cardinal christian doctrine within an ecclesial body can hardly be a virtue, since it would harm the confessional integrity of the church. Therefore, what might be a virtue in the state must be recognized to be a vice in the church body. The only way to determine the difference is to gain a grasp of the respective norms governing state and church. A general appeal to tolerance will not take us very far.

North American protestantism in particular is filled with church denominations that tolerate all sorts of heterodox views, yet take firm positions on highly contestable social and political issues. This represents a general failure to grasp the norms most applicable to the institutional church and can only produce a skewed tolerance scarcely to be labelled virtuous.

In summary, there is simply not enough substantive content in the notion of tolerance to justify it being categorized amongst the virtues, even if we accord virtue a modest place within a larger ethical framework.

Anglican matters

One hates to keep harping on the slow but steady decline of the Episcopal Church south of the border, but these three items are unmistakable signs that all is not well: Bexley Hall to Close Rochester Campus; Seabury Western ceases residential MDiv program; and Episcopal Divinity School enters university partnership.

While we're on the subject of Anglicanism, David Yerushalmi has written an intelligent piece on Archbishop Rowan Williams' now infamous speech on sharia: Why the Fuss About Shari’a Law?

The fuss is about the elephant in the room, or, better yet, the wolf in sheep’s clothing that some Americans fail to acknowledge. Put simply, not all foreign or religious laws are equal. Most foreign laws, be they sourced in secular legal codes or religious ones, are not predicated on a doctrine of world domination and holy war. But what if a legal system is founded upon the goal of conquering the world through holy war when persuasion and subjugation are not immediately successful?

In other words, should a society lend legitimacy to a legal system whose raison d’être is the destruction of that society? Moreover, how should a society treat a legal system that obligates its faithful to use violent jihad to accomplish its goals?

These are, of course, good questions that do not admit of easy answers, although Yerushalmi would do well to acknowledge that there are different interpretations of sharia within the diverse muslim community, some of which may be less bellicose than he assumes.

Finally, Jim Skillen has his own view of the matter, as indicated here: Civil and Religious Laws in England. Skillen writes:

What the Archbishop should be (and perhaps is) trying to argue, it seems to me, is that diverse religious communities, including Muslims, who give allegiance to God beyond allegiance to Crown and Church, should be equally free to live in Great Britain. Moreover, public “secular” law should recognize the right of British citizens, who are members of these different religious communities, to engage in diverse practices in the nongovernment spheres of marriage, private finance, education, and more. However, the foundation of such religious freedom and social pluralism is that all citizens, as members of the same political community, must abide by the public laws of the nation. If they want to change the laws that stipulate the obligations of citizenship, that protect religious freedom, or that articulate the identities and freedoms of nongovernment organizations, they will have to participate in the open democratic process to try to do so.

Colson on Williams

Chuck Colson, who should know better, is too facilely accepting the scaremongering of the media in his response to the Archbishop of Canterbury: The Archbishop and Sharia: What Empty Churches Are Made of. Colson, or rather his writers, would do well to dig beneath the surface and read Goddard and Chaplin on the subject.

A plurality of laws, II

My friend Jonathan Chaplin himself has now weighed in on Rowan Williams' address in an analysis very much worth reading and pondering: Law, Faith and Freedom: a critical appreciation of Archbishop Williams’s lecture. According to Chaplin,

granting ‘legal accommodations’ like this to religious convictions is not at all a breach of the mantra, invoked frequently in responses to the lecture, that there should be ‘one law for all’. That is an affirmation of the principle of equality before the law, and the Archbishop not only affirmed that principle but went further and hinted that it actually had religious origins. Granting legal accommodations to religious conviction is not a departure from the principle of equality before the law, but rather a specification of how it might apply to a diverse citizenry with intensely-held religious loyalties. Legal equality has never meant that every individual must be treated in identical ways by every legal rule, but rather that whatever laws exist should apply to all whom they intend to regulate and that there should be no arbitrary discrimination in the application of the law. The Archbishop himself alludes to this theme in proposing that the point of a regime of universal rights is to ‘underpin’ not to ‘supersede’ our plural identities.

Note further that the principle of equality before the law is not at all compromised by recognising the independent jurisdictions (i.e. spheres of authority) of non-governmental institutions, such as churches, universities, trades unions, etc. Each of these institutions possesses a sphere of internal ‘law-making’ (in the case of bodies like universities and trades unions this is called ‘rule-making’) which is not within the purview of the state. It is an essential feature of a free society that there should be many such self-governing institutions able to resist the tendency of states to exceed their mandate. Of course, the state may and does regulate these institutions where necessary in the public interest but the onus is (or should be) on the state to justify its interventions and not on the institutions themselves to justify their freedom to the state. This is a quite different sense of ‘legal pluralism’ to that mentioned above, and it is not only consistent with the principle of equality before the law but a necessary prop for it. Andrew Goddard is right to observe in the Archbishop’s lecture an ‘anti-statist pluralist social vision’ – one which I think Christians should strongly endorse.

A plurality of laws

The Archbishop of Canterbury has been under a lot of pressure lately, mostly over his handling of the imminent breakup of the Anglican communion. Most recently, however, he has come under fire for suggesting that the coming of Sharia to the United Kingdom is inevitable. However, the Rev. Dr. Andrew Goddard believes that Rowan Williams' remarks have not only been taken out of context, but reduced to a few controversial sound bytes that do not come close to doing justice to his views: Prudence and Jurisprudence: Reflections on the Archbishop's interview and lecture. Though I have not followed this story closely, I find persuasive Goddard's analysis, in which he even cites my friend and colleague, Jonathan Chaplin, as a "leading evangelical political theorist."

Here in Ontario we had a similar controversy in 2005 when Premier Dalton McGuinty ruled out the use of "faith-based arbitrations," proclaiming that "There will be one law for all Ontarians." Yet this is not an adequate account of the plurality of laws governing our lives in their diverse realms. If a child disobeys her parents, the latter do not call the police in to punish the child under the public law of the state. Rather they themselves mete out an appropriate punishment within the context of the particular norms governing that family itself. Similarly, a faculty member is subject to rules internal to the university, while a church institution is governed by canon law or church order. McGuinty must surely recognize this?

To his credit, Williams appears to understand the reality of multiple and overlapping allegiances in a complex, differentiated society better than many of his compatriots, who are echoing McGuinty's somewhat panicked response of two years ago. I understand, of course, that anything having to do with Islam and Sharia in western societies is a touchy subject these days. Yet the full import of Williams' argument is being lost. Here is Williams:

I think at the moment there's a great deal of confusion about this; a lot of what's been written whether it was about the Catholic church adoptions agencies last year, sometimes what's written about Jewish or Muslim communities; a lot of what's written suggests that the ideal situation is one in which there is one law and only one law for everybody; now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, 'There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts'. I think that's a bit of a danger. . . .

It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the law's function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern society.

Of course, there is a difference between what I call the pluriformity of authority and the sort of pluralism rooted in divergent spiritual commitments. Yet these two intersect in so far as one can expect particular religious norms to impact the internal ordering of, say, marriage and family life. To reduce all legality to the public law of the state tends in a totalitarian direction. Fortunately our political leaders, including McGuinty, formulate policies that are better than their expressed commitments might suggest.

While you're reading Goddard's article, you might also read this post by the winsome — and sorely missed — Mr. Brian Dijkema, who alerted me to it.

Liberty threatened

Are the traditional liberties enjoyed by English-speaking countries endangered in the motherland itself? Writing in Australia's The Age, this is what Melanie Phillips argues in Liberty fades as rights talk grows. Here's Phillips:

Real human rights — such as the equality of every human being and the intrinsic value of human life — are indeed universal and should be unarguable. The problem, however, comes with the "rights" that are enshrined in human rights law. These also claim to be universal and unarguable. But they are not. Indeed, the very act of codifying them makes them eminently contentious and divisive.

This is because almost every "right" in the convention is balanced by a rival "right". Judges have to decide between them. The way is therefore open for ideological, tendentious or prejudiced views to be set in judicial stone.

It has created a grasping "me too" culture that is as divisive as it is undemocratic. It has galvanised special interest groups to make demands, created a burgeoning industry of human rights lawyers and — despite acknowledging the ultimate supremacy of Parliament — effectively transferred much political power from Parliament to the courts. Instead of the rule of law, Britain now has rule by lawyers.

Though I disagree that "[h]uman rights law has nothing to do with true liberalism," I certainly concur with her belief that human rights has become "a religion for a godless age."

Human dignity and the law

Here is Douglas Farrow, co-editor with Daniel Cere of Divorcing Marriage, writing on contemporary subjectivist notions of human dignity and the dangerous judicial efforts to embody these in the legal framework:

If human dignity is at bottom a matter of how I feel about myself, then I myself become both the measure and the measurer of human dignity. This is incompatible with the very concept of the rule of law, which requires a starting point in something that is the same for all. Allied to so alien a principle, the law can only become a vehicle of confusion and oppression rather than of clarity and liberation (pp. 102-3).

Allied with this subjectivist notion of dignity is that of compassion, which, far from facilitating the doing of justice, is more likely to lead to its miscarriage.

Judicial review comes to Britain

The United Kingdom is often, and somewhat misleadingly, said to have an unwritten constitution. What is meant by this is that that country, like New Zealand and Israel but unlike virtually every other country, does not have an entrenched constitutional document possessing superior status to ordinary statutes. The absence of such a document means that Britain's courts, unlike those of Canada and the US, do not possess the right to rule whether or not a law is constitutional. Parliament is legally sovereign and cannot be second-guessed by the judiciary.

Up until 1982 Canada had a similarly "unwritten" constitution, our principal constitutional document, the British North America Act of 1867, being no more than an act of the British Parliament. We never had parliamentary sovereignty in quite the same way as it could be said to exist across the pond, but only because this sovereignty was shared among federal and provincial legislative bodies in a federal system. However, for the last nearly 23 years our courts have become increasingly active interveners in the political process, most recently handing down a reference decision on Ottawa's proposed marriage-revision legislation. This empowerment of the courts has its positive and negative features. The positive side can be seen when a government is forced to justify its treatment of citizens protected under an entrenched bill of rights, provided the court is not in the business of inventing new rights or unilaterally changing the constitution. The negative consequences are spelled out in F. L. Morton and Rainer Knopff's The Charter Revolution & the Court Party, as well as in numerous articles in First Things and elsewhere.

Despite the absence of an entrenched British constitutional document, the courts are nevertheless finding a way to review acts of parliament. This is reflected in yesterday's important decision by the nine law lords, who are the active members of the House of Lords in its capacity as the country's highest court of appeal, declaring that the Blair government's anti-terrorism law is incompatible with the European Convention on Human Rights. Although the law lords cannot invalidate a law as such, they can at least put the government of the day in an uncomfortable position. Because Britain is an adherent of the treaties of the European Union, a judicial ruling that it is not living up to these treaties inevitably carries a great deal of weight. Because of Britain's membership in the EU something like an entrenched constitutional document is coming in through the back door, along with the judicial review which it implies.

Is this a good thing? Yes and no. In theory it makes sense to empower the judiciary to check both cabinet and parliament, particularly with respect to protecting the rights of citizens. However, given that constitutional documents spell out those rights in necessarily general terms, they may leave too much room for the courts to fill in the blanks, as it were, and to find rights that were never intended by the drafters. Given, furthermore, that such rights tend to be articulated in narrowly individualistic terms, the courts can rule in ways that subvert basic social institutions, such as marriage, by reducing them to mere contractual relationships. I am inclined to think that one of the failings of the drafters of most constitutional documents, including our own Constitution Acts and the United States Constitution, is that they have imposed insufficient checks on the judiciary itself.

At some point I may post my Christian Courier column from nearly a year ago concerning the courts and the constitution.

Supreme Court reference

In most other countries a court cannot rule on an issue unless it hears a relevant case which has made its way through the judicial hierarchy. However, Canada is unusual in permitting its governments to refer a question to the Supreme Court for a ruling in the abstract. Two famous reference decisions were (1) the Patriation Reference of 1981 respecting the legality of Pierre Trudeau's effort to patriate the constitution without the backing of the provinces; and (2) the 1998 Reference re Secession of Quebec, in which the right of a province to secede unilaterally from confederation was at issue. Reference decisions are not strictly legally binding, but they are usually treated as if they were.

Today the Supreme Court handed down its long awaited reference decision on the federal government's same-sex marriage legislation. Here is the high court's decision in response to the federal government's four questions:

First question: Does Parliament have the exclusive legislative authority to change the legal definition of marriage?

Supreme Court's answer: Yes

Second question: Is extending the capacity to marry persons of the same sex consistent with the Charter of Rights and Freedoms?

Supreme Court's answer: Yes

Third question: Are religious leaders protected under the Charter of Rights from having to marry same-sex couples?

Supreme Court's answer: Yes

Fourth question: Is the traditional definition of marriage between a man and a woman constitutional?

Supreme Court's answer: The Court exercises its discretion not to answer this question.

From the court's ruling: "Several centuries ago, it would have been understood that marriage be available only to opposite-sex couples." Several centuries ago? Judging from this statement, the justices on the court must be very, very young indeed. I myself remember this ostensibly long-ago era, and I'm not quite at the half-century mark.

The issue will continue to be debated, most notably in the House of Commons itself.

Judicial overreach, yet again

OTTAWA, 2011 - The Supreme Court of Canada today ruled unanimously that all legal definitions of everything are unconstitutional. Because they discriminate against whoever and whatever does not conform to them, such definitions violate the equality provisions of the Charter of Rights and Freedoms. Parliament has been given 60 days to rewrite all laws to conform to this decision.

Unthinkable? Would that it were so.

Reining in the courts

Larry Kramer puts a different twist on the usual arguments in favour of a "living constitution," which is generally supposed to entail something approaching judicial supremacy. He argues instead, in "We the People: Who has the last word on the Constitution?", for something he calls popular constitutionalism, in which the courts would defer to the judgements of the electorate on issues of constitutional significance. Writes Kramer:

Making this shift would not entail major changes in the day-to-day business of deciding cases. There would still be briefs and oral arguments and precedents and opinions, and the job of being a Supreme Court justice would look pretty much the same as before. What presumably would change is the justices' attitudes and self-conceptions as they went about their routines. In effect -- though the analogy is more suggestive than literal -- Supreme Court justices would come to see themselves in relation to the public somewhat as lower-court judges now see themselves in relation to the Supreme Court: responsible for interpreting the Constitution according to their best judgment, but with an awareness that there is a higher authority out there with power to overturn their decisions -- an actual authority, too, not some abstract "people" who spoke once, two hundred years ago, and then disappeared.

One could, of course, argue that this popular supremacy is already enshrined in the formal amendment process, yet amending an entrenched constitutional document, in both the US and Canada, is "practically impossible." What is required instead is a sense of restraint on the part of judges themselves.

Judicial overreach revisited

My thanks to James Brink for alerting us to the following editorial in the saturday edition of the National Post: "Judicial rule." An overreaching judiciary has been a problem south of the border for decades. Now we are similarly afflicted here in Canada:

Not content merely with their recent, self-granted role as lawmakers, Canada's judges have now also appropriated to themselves the authority to supervise the performance of Cabinet ministers and elected governments, and even to micromanage public projects they feel run contrary to their judicial rulings. Thursday, the Supreme Court of Canada declared that judges need not limit themselves to declaring laws constitutional, or not, and prescribing remedies for the victims of unconstitutional ones. Henceforth, judges may also compel governments to report periodically on the actions they are taking to comply with constitutional rulings and to order changes in those actions when the judges are dissatisfied. The ruling clearly oversteps the bounds of judicial authority by trampling the ancient rule that a judge's interest in a case ends with his or her ruling -- if there are issues about one party's or the other's compliance with that ruling, those are to be brought back to court in a separate action. As such, the court's ruling in Doucet-Boudreau v. Nova Scotia (Minister of Education) violates the separation of powers between the judicial, legislative and executive branches of government, marks a dangerous intrusion into the political sphere and potentially imperils our traditions of responsible government.

The majority decision in the 5-4 ruling is bizarrely argued. The five Justices who voted in favour -- including Chief Justice Beverly McLachlin -- insisted that to not give judges these new powers was to invite the "seeds of tyranny to take root." They meant that when governments fail to comply with ordered remedies, governments are behaving tyrannically by flouting the rule of law. Yet there is a much greater danger of tyranny when judges impose themselves in the administration of public programs. Unlike legislators and Cabinet ministers, judges are unelected. They rule by decree, not by public debate, and their decisions are not subject to review by electors. It is topsy-turvy logic to argue that this decision, somehow, will lead to less tyranny rather than more.

At one time I thought that judges in this country were likely to be more restrained than their American counterparts, despite the Charter investing them with new powers. Recent years have demonstrated that, if anything, the opposite is the case. Whether our governments have the will to do anything about this remains to be seen.