The courts and the impossibility of autonomy: Carter v Canada

Earlier this month the Supreme Court of Canada delivered its long-awaited decision in Carter v Canada, known to some as the “Death with Dignity Case.” The Court ruled that the Canadian Criminal Code’s blanket prohibition of assisted suicide violates section 7 of the Charter of Rights and Freedoms which guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The reader of section 7 might be forgiven for assuming that its wording would favour the protection of life in virtually all cases. Nevertheless, the justices decided that forcing a critically ill person to take her own life while she is still able to do so but before she would prefer is a violation of the autonomy of the person as ostensibly guaranteed by the Charter. The Court has suspended its ruling for one year to allow Parliament to craft a law that would address its concerns.

My friend Peter Stockland, of the Canadian think tank Cardus, has raised several important issues with respect to this ruling, especially his concern that, if Parliament fails to take up the Court’s challenge, this country could become literally lawless, as we have been for the last twenty-seven years with respect to abortion.

However, I would contend that the principal issue raised by this and similar rulings in both of our countries’ supreme courts is whether the quest for personal autonomy is a feasible goal for either legislatures or courts to advance. Does justice consist of giving everyone the maximum ability to fulfil their desires, whatever they might be? Do constraints on the ability to choose constitute oppression? Is it the task of our political institutions to liberate us from such constraints?

This would appear to be the accepted orthodoxy in this latest stage in the centuries-long development of liberalism, as I have described elsewhere. The U.S. Supreme Court’s judgment in Planned Parenthood v Casey (1992) claims to grant citizens an impossibly expansive right to autonomy in this oft-quoted passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Here the human will seems to be sacrosanct and is limited only by the requirement not to inflict harm on others. Yet attempts to flesh out the legal implications of this statement can only run aground because it ascribes to mere human beings godlike powers, which is, of course, the spurious promise given to our first parents. No society can long endure whose members think themselves gods, no matter how many courts rule differently.
 
For now the Court seems content to allow that no physician will be required to assist in providing the lethal means to a patient determined to die. But how long this régime will endure cannot be foreseen. Precedents elsewhere would seem to indicate that, if individual autonomy is the jealous god it has proven itself to be, no rights of conscience or religious freedom will be permitted to stand in its way over the long term.

But when does a person actually possess this autonomy to which he is said to have a right? We are constantly influenced by the people around us and the circumstances in which we find ourselves. I may feel emotionally down on a dreary day in November when the daylight hours are diminishing, yet I am likely to feel cheerful on a freezing day three months later when the days are lengthening, the sun is shining, and the snow is diffusing its light everywhere. My mood on each of these days will inevitably affect the decisions I make. If I am wise, I will postpone making important decisions until I am feeling better. But what if my capacity to access this wisdom is hindered by my dark mood, which for me often leads to a loss of appetite? What if it takes only a good meal to improve my emotional state, thus leading me to decide differently than I might have an hour earlier? When does my autonomy kick in?

This is a question no court can possibly answer, because, to be blunt, there is no such thing as autonomy. As one of the Reformation-era catechisms puts it, we are not our own. We do not belong to ourselves. We are created in God’s image, which entails a grant of limited authority under God’s sovereignty. Yet as Victor Lee Austin observes, to possess authority is to be under authority. We are embedded in a network of communities and relationships that inescapably condition our choices, and it cannot be otherwise. Perhaps no court is willing to acknowledge this reality, but it remains reality all the same. Only if our courts abandon this fruitless quest to advance autonomy can we hope for even a modicum of justice to be done, especially to those whose lives are at risk but also to those unwilling for conscience’s sake to end these lives. In the meantime, we have good reason to support the efforts of  the Euthanasia Prevention Coalition here in Canada and similar groups in the United States.

This post is cross-listed at First Thoughts.

The flag plus 50

At first glance a flag would appear to be little more than a piece of fabric lending a hint of colour to our lives and activities, especially those touching on politics and government. But of course it is considerably more than this. A flag can be a powerful symbol of the very fabric of a nation’s common life. To shift the metaphor, it often functions as a glue to hold a country together through triumphs and adversities alike.

For virtually all of its first century of existence, Canada did not have its own flag. From 1867 until 1965 we used either the Union Jack or a series of Red Ensigns with the Union Jack in the upper hoist, that is, the top left quarter, of the flag. The fly, that is, the half of the flag farthest from the pole, initially carried an increasingly busy combination of the provincial coats of arms and, after 1921, a much simpler Canadian coat of arms. Moreover, the Royal Canadian Navy used a Blue Ensign similar to the current flags of Australia and New Zealand. That made for three alternative flags, none of which precisely enjoyed official status.

These flags appeared to many people to indicate that Canada was simply one more self-governing territory in the far-flung British Empire and Commonwealth. Only its coat of arms distinguished Canada’s Red Ensign from those of Bermuda and the Isle of Man. Yet into the 1960s many Canadians continued to feel a sentimental attachment to these flags, including, most notably, Conservative Prime Minister John Diefenbaker. But when Lester Pearson took his place in 1963, he moved quickly to develop a new flag for a country thought to have come of age. While heraldic expert John Matheson wanted a simple flag consisting of three connected red maple leaves on a white field, Pearson wanted two vertical blue stripes added on either side.

Eventually, of course, after many possible designs were submitted and considered, the Red Ensign was lowered and our current flag raised on Parliament Hill on the 15th day of February 1965. Since then we have had half a century to become accustomed to this familiar national symbol, and most Canadians have never known any other. Young people hiking across the globe have long stitched a maple leaf flag to their backpacks to identify themselves as Canadians and are instantly recognized as such. Although I was not especially young at the time, I did the same thing while travelling in the eastern Mediterranean two decades ago.

Having grown up in a country with a strong sense of national identity, I know from experience the symbolic importance of flags. Even if the American national anthem is not particularly singable by people with ordinary vocal abilities, its subject matter is dear to the hearts of Americans everywhere. The Star-Spangled Banner yet waves o’er the land of the free, and Americans would not have it any other way.

In the public elementary schools of my childhood, we pupils would start the day pledging allegiance to the flag with our right hands over our hearts. Anti-war activists in the 1960s severely miscalculated the impact on public opinion of their flag-burning protests. While most Americans had no great confidence in their leaders’ military efforts in Vietnam, they were thoroughly alienated from anyone who would desecrate the flag. Since then there have been sporadic, if unsuccessful, efforts to amend the Constitution to prohibit such disrespectful treatment of the stars and stripes.

It is difficult to imagine Canadians taking similar offence at someone damaging their flag. Yet if we are not exactly fervent about it, we are by now thoroughly comfortable with it, viewing it as a mostly unremarkable fixture on our national landscape. Far from exciting or inspiring, the maple leaf flag goes largely unnoticed. Until, that is, we return to this country from travels abroad, and then we find that the flag is still there, ready to welcome us home before once again receding quietly into the background of our collective consciousness.

We may yet encounter the occasional holdout for the old Red Ensign, such as the owner of the building at the corner of Locke and Aberdeen here in Hamilton. (Google streetview will confirm this!) But for virtually everyone else, our no-longer-new flag has had fifty years to secure at least a modest place in our hearts, and that is something worth celebrating.

David Koyzis is the author of Political Visions and Illusions and We Answer to Another: Authority, Office, and the Image of God. He teaches politics at Redeemer University College.

When we turn inward: Evangelism and the limits of pluralism (part 2)

Abraham Kuyper (1837-1920) was one of the giants of his era, wearing any number of hats during his long life, as recounted in James Bratt’s definitive biography, Abraham Kuyper: Modern Calvinist, Christian Democrat. Starting his career as a parish pastor, he would go on to found a university, a political party and a church denomination. He taught theology, served in the second chamber of the Dutch Parliament and later as prime minister, edited two periodicals, and spearheaded a movement to mobilize the orthodox Reformed Christians of his country to resist the onslaughts of the secularizing ideologies engendered by the French Revolution. And he was successful. For a time, that is.

Few would deny that the Netherlands today is a very different place from the country Kuyper served a century ago. As a young man I was shocked during a visit to Amsterdam to see the proliferation of “sex shops” and the brazenness of the city’s red light district. In the four decades since then the Netherlands has come to be known for its permissive attitude towards euthanasia, recreational drugs and, of course, sexual expression. What happened? And why did it happen so quickly, that is, within two generations of Kuyper’s death?

It shouldn’t have been that way. The Reformed Christian communities that Kuyper led boasted some genuine heroes during the German occupation between 1940 and 1945. I have worked with Dutch-Canadians for nearly thirty years, and they have told stories of how the Christian churches and schools defied the demands of the nazi occupation authorities and contributed to the resistance movement. In fact, the family of one of my closest friends risked their lives to hide a Jewish family during the war, and this story was by no means unusual. Many paid with their lives for their wholehearted commitment to God’s kingdom. Yet all of this faded surprisingly quickly in the post-war period. By the end of the 1960s the secularizing forces that Kuyper sought to stop in their tracks had completed their work. Today many members of the Christian Reformed Church here in Canada have relatives in the old country who no longer attend church and are little different in their lives and commitments from their unbelieving neighbours.

Explanations for this tragedy are not easily come by. The mystery of unbelief has puzzled theologians and laypeople for centuries. Why do some people believe and not others? Why do so many Christians, after spending their early lives in the church receiving proper teaching, leave their childhood faith behind? Obviously only God can see into the heart. It is perhaps small comfort to observe that the Netherlands was part of a much larger trend that saw secularization sweep away the remaining vestiges of belief throughout western Europe and the Canadian province of Québec. As late as 1957 Michael Fogarty discerned the presence of a swath of territory of high religious observance extending from the Low Countries to the Venetian coast of Italy. But the following decade saw this European “bible belt” disappear as an unprecedented wave of prosperity would combine with the spiritual exhaustion that had set in after two world wars to produce a nihilistic consumerism largely indifferent, if not altogether hostile, to the traditional faiths. If fewer Dutch people attend church, the same can be said of their French, German, Swiss and Italian counterparts. Similarly, if the French political system finally achieved stability after 1958, it may be due less to a better legislative-executive balance in de Gaulle’s constitution than to a secularizing laïcité finally defeating the traditionalist subculture with which it had been locked in battle for nearly two centuries.

However, something else may have derailed the Kuyperian enterprise: However, something else may have derailed the Kuyperian enterprise: an underemphasis on evangelistic outreach among his followers. Here in North America the Christian Reformed Church has lost members since 1992, and Kuyper’s Reformed Churches in the Netherlands (Gereformeerde Kerken in Nederland) ceased to exist a decade ago when it merged with the Netherlands Reformed Church (Nederlandse Hervormde Kerk) to form the generic-sounding Protestant Church (Protestantse Kerk in Nederland). There are lessons here for evangelicals and Catholics aspiring to secure a place in the public square.

During the 1960s and ’70s a number of political scientists, including Arend Lijphart and Hans Daalder, turned their professional attentions to a phenomenon they called consociationalism. In a consociational polity the leaders of mutually hostile subcultures have learnt to collaborate for proximate political purposes, even as their respective constituents remain fairly isolated from the others. Power-sharing occurs at the élite level, while at the grassroots each subculture has its own churches (if applicable), labour unions, hospitals, charitable organizations, fraternal associations and so forth. This social segmentation is often referred to by the Dutch word verzuiling, or pillarization. Kuyper’s efforts led to the establishment of a variety of explicitly Christian organizations parallel to their secular counterparts. (The painter Piet Mondrian grew up in this Gereformeerd subculture.)

As Kuyper’s heirs immigrated to North America, they brought over his penchant for establishing and maintaining Christian institutions of all sorts, including a network of Christian day schools, a Christian trade union, more than one political organization, and a network of institutions of higher education. I myself have long been committed to these efforts and have taught at one of these affiliated universities.

Nevertheless, I have found myself wondering whether Kuyper’s perhaps too peaceful coexistence with the forces of secularization in 1917 might not have been sufficient to maintain the subculture he led over the long term. Kuyper certainly wouldn’t have been pleased by his followers’ failure to evangelize, and pillarization needn’t lead to a lack of outward strategy, but historically such power-sharing agreements place a premium on reaching a least-common-denominator form of consensus and toning down differences. In a pillarized society, the distinct subcultures became adept at erecting and maintaining barriers against the other subcultures, yet the consociational arrangements they come up with have tended to be short-lived. Lebanon’s National Pact lasted from 1943 until civil war broke out in 1975. A similar arrangement in newly independent Cyprus lasted only three years. The classic era of Dutch verzuiling endured from 1917 to around 1966, when the divisions among the subcultures began to break down.

A religious community focused only on its own survival in a hostile environment may already have lost the battle, and this is where the efforts of Kuyper and his followers perhaps fell short. If we genuinely believe that the redemptive story contained in the Bible is not just our story but the world’s story, then we have reason, not to keep it to ourselves, but to proclaim that news with urgency and enthusiasm and to live accordingly. A political ceasefire may serve the proximate good of intercommunal peace, but it can never be a substitute for the biblical command to preach the gospel to the world, whose salvation ultimately depends on it. Different confessional groups may agree to disagree for the present, but the followers of Jesus Christ must manifest a confidence that the truth that sets us free is everyone’s truth, and not just a subjective truth peculiar to our own community. We should, in short, not be content to turn inward defensively but ought always to reach out to the larger world. If we lose confidence in the transforming power of the gospel, we run the risk of losing ground in a conflict we may forget is still being waged, even under formal conditions of a political ceasefire.

While their European counterparts are fading, the rapidly growing churches of Africa appear to understand this. What, then, would the 21st century look like if we were to bring together the Kuyperian cultural agenda, with its emphasis on institution-building for the kingdom, with the evangelical dynamism of Africa’s churches? Inspired by this vision, the Christian community could never afford to rest content with a mere ceasefire but would strive, one hopes, to live out its faith that God’s truth is indeed the world’s truth.

David Koyzis is the author of Political Visions and Illusions. He teaches politics at Redeemer University College in Canada. This post is cross-listed at First Thoughts.