** Wickedness is a myth invented by good people to account for the curious attractiveness of others**(Oscar Wilde, phrases and philosophies for the use of the young)
All sorts of moral issues have resurfaced in our ongoing debate about how Canadian Law and Society ought to be structured. The Charter of Rights and Freedoms (1982) enshrined individual rights into the Canadian Constitution and entrusted the Supreme Court to be the guardian of those rights. Pierre Trudeau, the father of the Charter, argued that "the State had no place in the bedrooms of the Nation."
John Stuart Mill (1859) had argued that the State can only exercise control over the "sovereign individual" to protect another person from real and tangible harm. Mill was very clear that this harm cannot be moral offence. Mill's theories and Trudeau's Charter are at the very foundation of the modern liberal democracy.
Philosopher Robert George argues that on the contrary the state has an obligation to regulate moral life. Social Conservatives, such as some folks in the current Conservative Party of Canada (especially those from the old Reform Alliance Wing) support all sorts of government limits on same sex marriage, abortion rights for woman and minority rights. They would argue that traditional values trump those individual liberties which in their view may confer too many rights to minorities within society.
What do you think?
Watch the Video (link below) to see what Rick Mercer thinks:
**Remember Rick Mercer uses satire to make his point, it is not intended to be offensive.**
http://www.youtube.com/watch?v=5vQvKpj5ThQ
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9 comments:
The ansewer to your question "should the state Legislate Morality", is most certianly "yes", and in fact I would suggest that all laws imposse morals on others. I would futher suggest that legeslating morailty is the only thing that our governemnts ever do. Our laws are simply a reflection of the moral values and attituds that are present during this period in time. On the subject of marijuana, why has the law changed. The attitude of society in general has changed permiting the governemnt to change the law. Laws themselves are neither progressive or conservitive, so why then do they seem to represent the moral valuse of the day? Could it be that the governement who creates the laws are in fact responding to the direction from the public as a whole to change the morals of our society. Sounds like a democracy to me!
Democracy is fine but as J.S. Mills noted we must be careful to protect the rights of the "soverign individual" from the "tyranny of the majority". It is difficult or nearly impossible to protect minority rights if the matter is left solely to the majority. This is one of the reasons in my view that in State after State in the USA, same sex marriage questions on the ballot have resulted in State bans to allowing this minority group equality rights. Mill warned against this possibility and arguably the Charter was designed with the Courts as the guardian of these rights for this very reason.
A country where are courts are responsible for making our laws, that seems scary to me. Is our nation not based on the the idea that we elect our peers to represent us in the process of governemnt. Why should the role of the courts be to create laws? It seems the Charter is able to trample a persons rights as much as it is ment to protect them. American politics......perhaps the reason for the failure of the same sex marraige ammendments is more to do with the american culture that is deeply invovled with church and religion and less to do with minority rights being ignored. The soverign indivduals rights end at the point where they conflict with the moral opinion of the majority. The evolution of the public as a whole is the only manner in which minority rights can be acheived. This evolution can only occur over time. Gay marraige is legal now, how about 5, 10, 20 years ago. What would the outcome have been if this issue was presneted then. Evolution of the moral opinion seems to be the only thing that protects the minority rights.
Dan if we agree with the argument that an individuals rights end where they conflict with the majority's moral opinion then we would have to set aside many rights and we could deny many rights.
For example, the majority of Canadians are not members of say the Mormon Church. If we apply your argument the majority would be justified in denying Mormon's relgion rights guaranteed under the charter because the will of the majority is supreme. The list could go on and on, and minorities would only win rights if the majority saw fit.
You will remember that in Canada it was not Parliament acting with new social trends and upon research that led to the legalization of gay marriage. Indeed it was the courts that legalized gay marriage first, and then parliament followed.
This sort of situation is exactly what the design of the Canadian Charter guards against, ie. what J.S. Mill called the Tyranny of the Majority.
To pretend that the rights of minorities are not part of an evolutionary process is completly wrong. Frans B Dewaal notes in his book: Good Natured: The origins of Right and Wrong that "morals are an evolutionary process". Indicating that minority rights are only deemd to be legeitmant when the society as a whole accepts them as such. Look at the therioes of social relitisim which is from the view point that morals are created from a series of values influnced by the cultural context of the time period. Are you naive enough to think that if society as whole was not ready to accept gay marriage that the goernment would have accepted the court's decison. Back to my original point, laws reflect the morals of the time. Laws by thier intent and creation impose moral values on society as a whole. The charter protects the rights of those so long as they do not harm fellow citizens. Who decides what constitues harm....perhaps the moral conscious of society.
Harm to another must be real harm not moral offence, Mill was clear on that point. Living as drunkard may have offended people of the time, and may have been morally outragous but not grounds from a liberal perspective to intrude on the Individual.
However, driving ones car drunk is another story, as the person then puts others at risk of physical harm.
You had mentioned that if the Government and Society did not agree on gay marriage the Government would have reversed the ruling. You are quite correct that about 51% of the population agrees with the concept of marriage for gays and lesbians. However, the Government could not override the ruling of the court without using the Not Withstanding Clause. The Liberal Party which was in power at the time as never used the clause, largely because it is offensive the principles of the Charter and liberalism in general.
Interestingly the current Conservative Government which does not think much of gay marriage, and has a hardcore Christian base that would like to see time turned back on this issue, are widely expected to bring this issue up with the full knowledge that it will be defeated in a vote.
I do not disagree with you that Society's tolerance and standards evolve. However, if one subscribes to the principles of liberalism there are some areas of Individual Life where the group and the state have no business.
My apologies Dan the last paragraph of my last post should have said "I do agree with you that Society's values and standards evolve".
I mistakenly included the word NOT which ofcourse changes the entire meaning of the sentence.
Are you sure that the harm Mills refers too does not include societies obligation to protect the individul from harming themselves. Your example of the drunkard, should society not be able to protect him from himself. The creation of laws to ensure responsible use of alcohol stirve to do this, do they not? I would suggest that most often a moral offence does constitute real harm. It is just these liberal views that you speak of that have resulted in such overt lack of morals in today's society. The not Withstanding clasue was included with intent that it may be nessassary for the government to enact legeslation that restricts individual rights in order to protect greater society or good. For example, would you accept a law that made your family safer, but takes away some individual rights, like the system present in the USA? It is an unfortunate consequnce that sometimes rights are infridged to protect the greater good. In some cases the ends does justfy the means.
Mill was clear that harm to oneself is not the business of the group or the Government. The only justisfication for limiting liberty in his theory was to prevent real harm to another. If one allows moral offence into the argument then it becomes permissable to limit almost anyone or any groups liberty if the majority feels it appropriate.
I agree Society will pass laws which protect the greater good from real harm. This is why police may stop people in roadside checks to see if they a drinking. The limitation on mobility is minor as long as the checks are done in a routine manner and do not target certain groups for example. The harm they protect society from is real harm (ie a drunk driver).
In terms of surrendering liberty for safety, Ben Franklin said it best when he stated that "he who would surrender essential liberty for a little temporary safety, deserves neither liberty or security".
The overreaction with anti-terror laws in Canada has been a good example. Poorly worded and quickly drafted, overly broad in their scope, people such as Maher Arar have been caught up and in his case tortured, because of laws that would sacrifice the liberty of individual citizens for security.
On the Not Withstanding clause, many charter watchers and historians would agree that Pierre Trudeau never wanted the clause included. Trudeau says as much in the biography of his life that aired on CBC. The clause was a compromise to the provinces, who were reluctant partners when he brought the Constitution home. This is likely the reason that the Federal Liberals have always refused to use the clause. The new Liberal leader this past week referred to the Liberals as the party of the Charter. What was built into the clause was a 5 year review when it was used so that any Government using it would have to explain themselves every 5 years.
We must always be careful when we say the ends may justify the means. The US has taken this approach with treatment of prisoners of war and international relations with diastorous results.
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