Problems with Elizabeth May’s remarks on the constitution

HuffPost Canada’s Althia Raj writes:

If the 2019 election ends up in a minority situation but the Tories have the most seats, Green Party Leader Elizabeth May thinks the Liberal government should try to form a new government with support from other parties.

In an interview with HuffPost Canada’s politics podcast ‘Follow-Up,’ May said that if the campaign results in a hung Parliament, “yes, of course” the party in power should try to convince the governor general that they can hold the confidence of the House.

May is of course right to point out that the Liberals could remain in power even if the Conservatives (or any other party, for that matter) wind up with more seats. But the details of how this works are all wrong, and the details matter.

First, here’s what May gets wrong. While reporters often talk of an incumbent prime minister “forming government” after an election, in fact the duration of a government is the duration of the prime minister’s tenure. And while reporters often talk about prime ministers “winning another term” and such, the truth is that prime ministers don’t have terms of office. Once appointed, a prime minister is prime minister until they resign or are dismissed. In the scenario May envisions, there would be no obligation to resign and no grounds for dismissal. So the prime minister’s tenure would not be interrupted. It follows that the government would continue, and thus that there would be no need to form a new government. So in this scenario, the party in power would not have to convince the governor general of anything. It’s up to the new house, not the GG, to decide whether the government has confidence.

Why does this matter? I assume May’s remarks are intended in part to assure the public that it would be constitutionally legitimate for Trudeau to try to remain in power even if his party did not have a plurality in the new House of Commons. If the public is prepared for this kind of possibility, there’s less chance of the kind of backlash that helped sink the Liberal-NDP coalition proposed after the 2008 election. So explaining how the constitution applies to this kind of situation makes it more likely that the 2019 election will result in a progressive alliance of some kind.

If this is the aim, however, it’s easy to see how May’s remarks might be counterproductive as well as strictly inaccurate. In May’s version, the GG would have a choice between allowing Trudeau to test for confidence or appointing Scheer as the new PM. This account makes it sound as though Trudeau’s ability to remain in power would be subject to the whims (or the political preferences) of the governor general. But it is widely understood that the governor general ought to be politically neutral. By making it seem like the GG has real discretion over whether the PM gets an opportunity to meet the house in a case like this, May would invite the Conservative charge that allowing Trudeau to remain in office would be a violation of the GG’s political neutrality. No doubt they would argue (as they did in 2008) that the voters, in giving the Conservatives a plurality, had rendered judgment on who ought to be in government, and that the GG had no right to overrule the will of the people. This is nonsense, of course, but it has proved to be politically effective nonsense.

So May’s explanation of how the constitution would apply to this kind of scenario seems far more likely to encourage rather than preempt efforts by the Conservatives to undermine any attempt to establish a progressive alliance after the next election. I don’t doubt that her motives are good, and I agree that it’s important for the public to be informed in advance about what’s permissible in cases like this. But efforts to inform are helpful only if they’re accurate, and this one isn’t.

A comment on climate-motivated anti-natalism

Screen Shot 2019-04-16 at 1.34.42 AM.png
From the Usborne Book of the Future

According to some commentators, the best way to reduce your GHG emissions is to have fewer children. This is false; having fewer children is not even a way to reduce your GHG emissions, let alone the best way. While having one less child may indeed reduce overall emissions, it does this by reducing someone else’s emissions to zero — a feat they can accomplish only because they have never existed. No one capable of posing the question “how can I reduce my GHG emissions?” is capable of accomplishing this feat. The question “how can I reduce my GHG emissions?” is about how people who do or will come to exist can live well with a reduced climate footprint. Insofar as climate change is a soluble problem, it can only be solved by answering this question. Because anti-natalism does not answer the question, I don’t see how it can play much of a role in solving the problem at hand.

Voting and contractualist ethics

14434835_10155520836484848_9031965065238343034_o

In my last post, I explained why directly consequentialist reasoning can’t explain the moral obligation to vote and vote well, whereas virtue ethics can. Even if my argument was successful, though, it’s worth considering other approaches too; after all, virtue ethics might only characterize a subset of all the relevant moral considerations. So in this post I’ll discuss an alternative approach to the ethics of voting based on contractualism.

As regular readers may recall, contractualism is a kind of social contract theory that identifies certain requirements of morality with the outcome of a hypothetical agreement between free and equal people seeking mutually justifiable principles to regulate their behaviour. Justifiability is important for any first order moral theory, of course—a consequentialist, for example, would agree that if an act is unjustifiable then it shouldn’t be done, but will then claim that the justifiability of the act depends on its consequences. What distinguishes contractualism is that an action’s moral status depends on its justifiability, rather than the other way around; if an action is wrong, its wrongness (in the specifically contractualist sense) is to be identified with that fact that the action is unjustifiable. Just as consequences are morally basic for a consequentialist and virtues are morally basic for a virtue ethicist, justification is morally basic for a contractualist. As T. M. Scanlon puts it:

When I ask myself what reason the fact that an action would be wrong provides me with not to do it, my answer is that such an action would be one that I could not justify to others on grounds I could expect them to accept. This leads me to describe the subject matter of judgments of right and wrong by saying that they are judgments about what would be permitted by principles that could not reasonably be rejected, by people who were moved to find principles for the general regulation of behaviour that others, similarly motivated, could not reasonably reject. In particular, an act is wrong if and only if any principle that permitted it would be one that could reasonably be rejected by people with the motivation just described (or, equivalently, if and only if it would be disallowed by any principle that such people could not reasonably reject). (from What We Owe to Each Other, p. 4)

Scanlon’s contractualism is not a exhaustive account of morality; rather, it is concerned with a specific moral domain—the relationship that exists between all persons irrespective of any particular attachments like friendship, family, or nationality. The contractualism of John Rawls is similarly restricted in scope to the special subject of social justice. Rawls imagines his hypothetical contractors first drawing up a set of principles to guide the basic institutional structure of society,* and then principles to guide individual conduct. Both Scanlonian and Rawlsian contractualism can, I believe, provide satisfactory answers to our questions about the ethics of voting.

First, the Scanlonian approach. On this view, if we have a duty to vote, this duty is a product of moral principles that no one can reasonably reject. To find out whether there is such a duty, we should consider the reasons that individuals occupying various standpoints would have for rejecting different candidate principles. To illustrate, consider Scanlon’s “Transmitter Room” thought experiment (from What We Owe to Each Other, p. 235). Suppose Jones has become trapped under an transmitter and is suffering painful (but not life-threatening) electric shocks. For Jones to be rescued, the transmitter will have to be shut down. This will interrupt the broadcast of a football game that a large number of people are enjoying. Should Jones be rescued?

From the standpoint of a football fan watching the game, there is reason to object to a principle that would require Jones to be rescued—interrupting the broadcast will spoil their experience of the game. From Jones’s standpoint, on the other hand, there’s reason to object to a principle that would permit (or require) him to be left trapped until the conclusion of the broadcast—he is in a great deal of pain. Jones clearly has the stronger objection. Taking all the relevant considerations into account, then, a football fan cannot reasonably reject a principle that would require Jones to be rescued immediately. This is why it would be wrong not to shut down the transmitter and carry out the rescue.

What reasons might people have to reject a requirement to vote? In 2015, non-voters’ single most common reason cited for not voting was “Not interested in politics.” From this standpoint—let’s call it the standpoint of the uninterested non-voter—a requirement to vote would be rejected on the grounds that it would require the uninterested non-voter to do something that they are not interested in doing. The burden this would place on the uninterested non-voter would be a brief period of boredom they must endure once every couple of years or so.

The second most common reason cited was “Too busy”. In most cases, this is a pretty weak excuse considering how easy it is to vote in a Canadian general election. There are probably relatively few busy non-voters for whom finding the time to vote would really have been unreasonably burdensome. The objection that would be raised from the standpoint of the busy non-voter would, I think, be along the lines of “There are things I’d rather do with my time.” This objection is not too different from the objection raised by the uninterested non-voter, though perhaps it is a bit weaker (the busy non-voter isn’t even necessarily bored by having to engage politically once in a while).

Tied for third and fourth most common reasons cited were “Out of town” and “Illness or disability”. These standpoints, however, do not seem to generate unique reasons to reject a principle imposing a duty to vote. Out of town non-voters seem to be a subset of busy non-voters, given that it is possible to vote even if one is away for the entire writ period as long as one takes the time to request a mail voting package. People who did not vote for reasons of illness or disability, on the other hand, were either prevented from voting by a failure of the electoral institutions to accommodate their illness or disability, or, if accommodation would not have been possible, they were simply unable to vote. So because a person cannot be faulted for failing to do something they are unable to do or are prevented from doing, people who did not vote for reasons of illness or disability cannot be faulted for not voting even if there were a principle requiring one to vote.

There are, I think, much stronger reasons favouring rejection of a general moral permission not to vote. Consider the standpoint of a young person, for example. Turnout among the young tends to be relatively low. Despite a surge in turnout in the 18-24 and 25-34 age groups in the 2015 election, there was still a gap of around 20 points between them and the 55-64 and 65-74 age groups. A predictable consequence of consistently large gaps in turnout between young and old is that governments will be less responsive to the views and interests of younger voters. From the standpoint of a young person, then, a reason to reject a broad moral permission not to vote is that if this principle were adopted, governments will be less responsive to the views and interests he or she has in common with other young people. Measured against the reasons that can be given from the standpoints of the uninterested and busy non-voters, it seems that the young person’s reason is sufficient to reject a general moral permission not to vote, whereas the reasons of the uninterested and busy non-voters are not sufficient to reject a general requirement to vote. So a principle requiring one to vote cannot reasonably be rejected. By Scanlon’s standard, this means that one ought to vote.

Now consider the Rawlsian approach. Having settled on principles of justice for the design of the basic structure, Rawls imagines his hypothetical contractors then coming to agreement on principles to guide individuals. The most important of these individual principles is what Rawls calls the natural duty of justice. The natural duty of justice requires each person to comply with and do one’s part in maintaining or bringing about a just basic structure, as long as one can do so “without too much cost” to oneself. Obviously maintaining or bringing about a just basic structure requires the people to vote for candidates, parties or policies that will further those aims. Doing one’s part, then, would have to involve personally voting for candidates, parties or policies that will promote justice. As with Scanlon’s contractualism, an individual ought to vote because they are bound by a principle that requires each person to vote, not because their vote would bring about a certain outcome. The principle is binding because it is uniquely justifiable to reasonable people. And the principle is uniquely justifiable because it is required to protect everyone’s paramount political interest — the creation or preservation of a just society. So Rawls’s contractualism both explains why we ought to vote and why, when we vote, we ought to avoid candidates like Donald Trump.

Scanlon’s contractualism does not (yet) include a full theory of justice, and it’s an open question whether Scanlon’s interpretation of the contractualist idea would imply a unique theory of justice, or whether it would imply some pre-existing theory of justice like Rawls’s. Even without a clearly articulated theory of justice, however, Scanlon’s approach can explain why it’s wrong to vote for a Trump-like candidate: a principle that permitted voting for a deranged, incompetent, power-hungry bigot could reasonably be rejected. This line of reasoning is unlikely to convince anyone who has voted for a Trump-like candidate that they were wrong to do so, because they’re unlikely to accept this characterization of their preferred candidate (although it might get more traction with people who voted Trump for lulz). My aim here, however, has not been to convince anyone of the error of their ways; my aim has been to explain the error.

Both virtue ethics and contractualism seem to provide satisfactory explanations of two widely accepted moral facts about voting: one ought to vote, and one ought not to vote for awful candidates. A natural next step is to see how these approaches might deal with issues in the ethics of voting where the moral facts are more in dispute, such as strategic voting and electoral boycotts. I plan to address these topics in a future post.

*For more on how this is supposed to work, and my take on the implications of Rawls’s philosophy for voting systems, see my essay in the Tyee, “Thinking Fairly About BC’s Referendum on Proportional Representation”.

Voting and virtue ethics

Mr.-Smith-Goes-to-Washington-1939-featured

In a previous post (which I meant to follow up on years ago but never got around to), I argued that consequentialism — at least in a crude form — cannot explain why it would be wrong to vote for an extremely bad candidate such as Donald Trump. Consequentialism explains the wrongness of an action in terms of its real or expected consequences, so that an act is wrong just in case the real or expected consequences of that act are suboptimal compared to some other available action. No individual vote determines the winner of an election, so the election of a bad candidate is not a possible consequence of the individual’s act of casting a vote for a bad candidate. If the election of a bad candidate is not a possible consequence of casting a vote for a bad candidate, voting for a bad candidate does not have suboptimal consequences. Therefore, by the consequentialist standard, voting for a bad candidate is not wrong. But voting for a bad candidate is wrong, so the consequentialist standard must be mistaken.

I should emphasize that the kind of consequentialism that faces this objection is only a crude approximation of actual consequentialist theories. However, by making this argument against a crude approximation of consequentialism I do not thereby intend to present a straw man argument; my aim is not to show that consequentialism must be false because the crudest possible form of consequentialism is false. Sophisticated forms of consequentialism (such as those developed by Brad Hooker and Julia Driver) may very well avoid the problem. My aim is only to cast doubt on a particular line of consequentialist reasoning which I believe is prevalent in our political culture, according to which one ought not to vote for a bad candidate because one’s vote for a bad candidate will have bad consequences.

This kind of reasoning is also evident in discussions about whether or why one ought to vote at all. In the face of low and falling turnout, commentators and activists often encourage citizens to vote by appealing to the value of the opportunity to make a difference; in other words, one ought to vote because doing so will have beneficial consequences. But while the consequences of higher turnout (especially among groups with historically low participation rates) would be beneficial, it doesn’t follow that the consequences of any particular person choosing to vote would be morally significant one way or another. And for the reasons given above, it seems that the consequences of any particular person choosing to vote are not morally significant one way or another. Nevertheless, it’s true that, morally speaking, people normally ought to vote. So the reason why people normally ought to vote must have to do with considerations other than the consequences of individual acts of voting.

A satisfactory account of the ethics of voting should be able to explain both how we ought to vote and why we ought to vote at all. In the remainder of this post, I will discuss an alternative approach to the ethics of voting based on virtue ethics; a future post will discuss a contractualist approach to the same issue. Neither of these approaches involves the kind of directly consequentialist reasoning I’ve objected to above. At the same time, it may turn out that either approach can be taken on board by proponents of certain more sophisticated varieties of consequentialism. Virtue ethical and contractualist approaches to these questions about the ethics of voting may be incorporated into more general nonconsequentialist ethical theories, or they may somehow be incorporated into a sophisticated consequentialist account of the ethics of voting. Readers can decide for themselves how these approaches might best be applied.

Ethical theories can be grouped by the kinds of considerations they treat as having primary importance in moral evaluation. For consequentialists, consequences have primary importance; for deontologists, fundamental duties; for virtue ethicists, virtues. As Rosalind Hursthouse puts it:

Imagine a case in which it is obvious that I should, say, help someone in need. A [consequentialist] will emphasize the fact that the consequences of doing so will maximize well-being, a deontologist will emphasize the fact that, in doing so, I will be acting in accordance with a moral rule such as ‘Do unto others as you would be done by’, and a virtue ethicist will emphasize the fact that helping the person would be charitable or benevolent. (from On Virtue Ethics)

In this context, a virtue is an “excellent trait of character”; examples of such traits include benevolence, compassion, kindness, generosity, courage, honesty, tolerance, conscientiousness, frugality, reasonableness, and moderation. A person’s possession of the virtues is a necessary condition for a complex, distinctively human kind of flourishing we have strong reason to value (sometimes referred to as eudaimonia, a technical term from ancient Greek that I won’t be using in the rest of this post). From a virtue ethical perspective, right action can be defined as the action that would be performed under the circumstances by a person who has the virtues. Applied to the ethics of voting, this means that one ought to vote because a virtuous person would vote, and one ought to vote in a certain way because a virtuous person would vote that way.

Why is it virtuous to vote? One reason is that democratic politics is partly constitutive of human flourishing. Political institutions have a pervasive effect on the conditions in which we live our lives, including our social and physical environment and the rights and opportunities we enjoy. Undemocratic forms of government (even if they miraculously turn out to be perfectly benevolent) alienate us from these institutions; democracy is necessary for us to have real control over the conditions in which we live our lives. Given our capacities for freedom, self-determination, and cooperation, control over these conditions is plausibly part of what human flourishing entails. And because control over these conditions entails democracy, democracy is plausibly part of what human flourishing entails. For democracy to exist, people must vote; the shared activity of voting is partly constitutive of democracy. If the shared activity of voting is partly constitutive of democracy, and democracy is partly constitutive of human flourishing, then the shared activity of voting is partly constitutive of human flourishing. It follows, I think, that a person who possesses the virtues—the traits necessary for human flourishing—would thereby have a disposition to vote even though they know that their own vote will not determine the outcome of an election.

A second reason why one ought to vote is related to the fact that democracy is not only partly constitutive of but also an important contributor to human flourishing. Democratic government is, on the whole, good government. Democracies do a better job of delivering important goods (from health care to the administration of justice) than non-democracies. And again, democracy requires people to vote. People who do so incur some (minor) cost for no real benefit to themselves. Generally speaking, voters seem to be motivated to make this small sacrifice by what the economist Jean Drèze calls* “public-spiritedness”—itself perhaps a kind of virtue. The large numbers of people who do not vote, on the other hand, seem to be motivated by narrow self-interest; even the minor sacrifice that voting normally involves (at least in developed democracies) is seen as a sufficient reason not to vote. In making this determination, non-voting involves the exercise of vice (selfishness, perhaps, or laziness) rather than virtue. A virtuous person, by definition, avoids the vices. So the fact that non-voting would be vicious is another reason why one ought to vote according to the virtue ethical approach.

How might virtue ethics answer the question of how one ought to vote? One approach might be to look at the kinds of considerations a candidate presents as reasons to vote for him or her, instead of his or her rivals, and ask what a virtuous person would make of those considerations. This would go some way toward explaining why one ought not to vote for a candidate who appeals to voters’ selfishness, bigotry, dogmatism, and cruelty (for example); a virtuous person recognizes that these are considerations that count against rather than in favour of a particular candidate. Appeals to tolerance, compassion, generosity, etc., on the other hand, do count in favour of a candidate. A virtuous person would be motivated to vote for a good candidate, and not to vote for a bad candidate—and can arrive at these motivations without imagining that a single vote for either candidate will make a difference to the outcome of the election.

Having ruled out certain options, a virtuous voter also ought to give some thought to whether the kinds of considerations to which he or she genuinely ought to be responsive really do favour one candidate over another. Some candidates just have a silver tongue; they can talk about all the right values, but the platform they’re running on isn’t really connected to those values—or, worse, would tend to undermine them. As Hursthouse points out, being a sucker is a vice too. An honest, conscientious, discerning voter ought to try to see through appealing rhetoric and figure out which candidate or candidates really would be best, given the kinds of considerations a virtuous voter takes to be relevant.

This is all very tentative, of course. But on a first pass, it seems that a virtue ethical approach can explain why we ought to vote, and why it matters morally how we vote. And neither part of the explanation depends on the assumption that one’s vote will make a difference to the outcome of an election.

*In the essay “Development and Public-Spiritedness”.

Blogging update

23000273_10157214611504848_4093714816249897117_o

As a number of regular readers have commented, this blog has been pretty quiet in the last few months. One reason for the slowdown is that I set aside a chunk of spare time — time I’d normally use for blogging — to devote to a different mode of political expression: volunteering on the campaign to get Jagmeet Singh elected as the MP for Burnaby South. I’ve been enthusiastic about Singh for some time (see here, here and here) and I enjoyed the opportunity to give some concrete support to his continuing work as a leader of our movement. I’ve also become more involved in my own riding association here in North Vancouver, where I’ll be supporting our candidate Justine Bell’s run for parliament in the upcoming general election. But I’ve still got quite a bit on my mind that I’d like to write about, and in the future I hope to do a better job keeping up with blogging while also pursuing political action.

Reasons for optimism about democratic reform in BC

17118594-17118594“While realization is, of course, not unimportant, I believe that the very possibility of such a [reasonably just] social order can itself reconcile us to the social world. The possibility is not a mere logical possibility, but one that connects with the deep tendencies and inclinations of the social world. For so long as we believe for good reasons that a self-sustaining and reasonably just political and social order both at home and abroad is possible, we can reasonably hope that we or others will someday, somewhere, achieve it; and we can then do something toward this achievement. This alone, quite apart from our success or failure, suffices to banish the dangers of resignation and cynicism.” – John Rawls, The Law of Peoples

The outcome of last year’s referendum on proportional representation was a bitter disappointment to many, including myself. Although it is unclear whether the result really represents a ringing endorsement of the status quo, and not simply unease or confusion about the alternatives on offer, it is likely to be a long time before proportional representation is again a live issue in BC politics.

For those of us who argued — and still argue — that our current electoral system is fundamentally unjust, this fact is very depressing. Signing up for a progressive political cause normally means signing up for a very long string of losses, but these setbacks can be endured because the hope of eventual victory remains. In this case, however, that hope may seem to have been taken away: supporters of change have been told that the issue is now closed forever. But this claim deserves scrutiny. Is there really good reason for advocates of proportional representation to lose hope and give up? Not really.

Opponents of electoral reform have argued that the issue has been put to rest because the people have rendered a decisive judgment in a series of referendums. On the surface, this claim appears to rest on an appeal to democratic principles, because only democratic principles could possibly explain why a referendum result should be regarded as absolutely authoritative. The idea that defeat at the ballot box is sufficient to permanently remove an option from public consideration, however, is essentially undemocratic (a point I’ve argued before on this blog).

The design of democratic institutions normally presupposes that the people’s judgment is highly changeable. One reason for this presupposition is that the identities of the particular individuals who collectively constitute the people change over time. Another reason is that people are capable of (and responsible for) revising their political judgments in light of new evidence and normative considerations; if people did not have this ability, it is not clear that we would be fit for democratic self-government. It is because of this changeability in the people’s collective judgment that elections are held at relatively frequent intervals, candidates are entitled to stand for election even after multiple losses, and parties can include substantially similar policies in their platforms after multiple defeats.

Democracy does give the people the authority to render judgment on candidates, parties and policies, but it also limits the reach of this authority; if some particular voters at a particular point in time had unlimited authority to render final judgment on all these matters, this would encroach on the prerogatives of other particular voters, or voters at some other particular time. If democratic principles entail that electoral defeat is not sufficient to permanently remove a candidate, party, or policy from the public’s consideration, it is not clear why a referendum result should be sufficient to achieve the same result. As I noted above, only democratic principles could possibly explain how referendum results can have this kind of authority. But in fact, democratic principles entail that referendum results do not have this kind of authority. So the claim that this referendum result was sufficient to take proportional representation off the table permanently is false.

This is not to say that advocates of reform should dismiss the result. Voters don’t have the authority to render final judgments, but they do have the authority to render provisional judgments. The provisional judgment of the voters in this case was not to proceed with electoral reform. Because this judgment is genuinely authoritative, it would be wrong for the government to proceed as though voters had delivered a different judgment, and wrong for advocates to ask the government to do so. We can and should keep making the case for proportional representation, but I don’t think we can legitimately expect the government to move forward with it.

We should also pay close attention to people’s reasons for voting against reform. One reason seems to have been lack of trust in the process leading up to the referendum, and the process envisioned for filling out the details of the chosen system in the event of a victory for Yes. This concern is not unreasonable and ought to be taken into account in any future proposal for electoral reform.

Finally, it is clear from the result that a large number of British Columbians are interested in some kind of democratic reform. Proportional representation is one kind of democratic reform, but it’s not the only kind. And other reforms that are worthwhile for their own sake may eventually help build support for PR.

Substantially increasing the size of the legislature, for example, would make it easier for MLAs and constituents to enter into meaningful contact. This would also have the effect of increasing the number of backbenchers relative to the number of front bench positions, which should help restore some moderation to party discipline. With a much larger legislature, concerns about the size of electoral districts should be less prominent in the debate over proportional representation. And even without electoral reform, a larger number of districts is likely to make election results somewhat more proportional.*

Another option would be to explore the introduction of electoral fusion, which I previously discussed in this post. Fusion might not be a great fit with BC’s political culture as it is presently constituted, but the changes it would probably require strike me as generally positive overall. Most importantly, it would provide for one of the greatest benefits of proportional representation — making room in electoral politics for the contributions of smaller, more policy-oriented parties — without requiring any change to the size of the legislature, district boundaries, or electoral formula.

So there you have it: things aren’t so depressing after all! If proportional representation was a good idea the day the referendum launched, it’s still a good idea now. Good ideas don’t get shut out forever. It’ll probably be a while before we get another chance to get this one put into action here in BC, but we need to take the time and figure out how to make the most of that chance when it comes around anyway. And there are other worthwhile democratic reforms we can pursue in the meantime.

*In Patterns of Democracy, Arend Lijphart notes (citing research by Rein Taagepara and Matthew Shugart) that disproportionality under FPTP is significantly greater where the size of the legislature is less than the cube root of population size. BC’s legislature is currently a little more than half the cube root of the population.

Does the notwithstanding clause make any sense?

thenakedtimehd1005

Canada has a constitutionally entrenched set of guarantees for certain basic rights and freedoms: the Charter. Specific guarantees include fundamental freedoms (including freedom of conscience and religion, freedom of expression, and freedom of association), democratic rights (including the right to vote), mobility rights, legal rights, equality rights, and language rights.

Before the Charter was enacted, Canadians already placed special value in these rights and freedoms. Because of this, governments tended to treat those rights and freedoms with respect. Governments that failed to do so risked punishment from the voters. So before the Charter, Canadians already possessed certain basic rights and freedoms and these were already protected through the democratic process.

At the same time, the process that protected basic rights and freedoms also made them vulnerable. Sweeping restrictions on freedom of conscience and religion might be avoided for fear of electoral backlash, but restrictions targeting members of a minority group might carry no such risks. Democracy provides a measure of protection for basic rights and freedoms, but it does not provide equal protection.

These are the reasons why the Charter was enacted: first, because Canadians value certain basic rights and freedoms, and second, because the incentives of electoral politics are not an adequate safeguard against the violation of those rights and freedoms. Entrenching the Charter added the protection afforded by the legal process to the protection already afforded by the democratic process.

In addition to a list of basic rights and freedoms, the Charter also contains a provision (section 33, the notwithstanding clause) that allows legislatures to override fundamental freedoms, legal rights, and equality rights (but not democratic rights, mobility rights, or language rights) simply by including a declaration to that effect in a bill. Such declarations expire after five years (the maximum life of a legislature) but may be renewed indefinitely.

Section 33 ostensibly provides a safeguard against judicial overreach in applying the Charter, to balance the Charter’s safeguard against legislative encroachment on basic rights and freedoms. But I’m not sure this makes a whole lot of sense.

The rationale behind the five-year expiry date for invocations of the notwithstanding clause is that voters can be counted on to punish governments that misuse the notwithstanding clause. This is equivalent to saying that voters can be counted on to punish governments that violate basic rights and freedoms. But to reiterate, the reason the Charter was enacted in the first place is because we recognize that we can’t count on the democratic process to protect basic rights and freedoms. So if the justification for the notwithstanding clause depends on the assumption that voters will punish governments that misuse it, the justification fails because, as the Charter’s very existence demonstrates, that assumption is false.

Now here comes the practical bit. The notwithstanding clause threatens to make superfluous those sections of the Charter that are subject to override. But the rights and freedoms set out in those sections of the Charter are extremely important; they need real protection. So if section 33 makes those parts of the Charter superfluous, section 33 ought to be repealed. Unfortunately, repealing section 33 is very difficult. But if it’s the case that section 33 ought to be repealed, it must be the case that section 33 ought not to be used. If section 33 ought not to be used, its use ought to be prevented when possible. As it turns out, this is possible. The federal government can prevent provinces from using section 33 by threatening disallowance of bills that use the notwithstanding clause. And if my reasoning so far has been sound, it should.

An unconvincing case against redistribution, part 2

This is a followup to my previous post on Michael Huemer’s argument that redistribution violates property rights. As I outlined last time, Huemer’s argument depends on the claim that for a system of legal property rights to be morally acceptable, it must satisfy the constraints of certain pre-institutional natural rights. Among these, Huemer claims, are natural property rights, which he tries to establish by invoking a thought experiment about a hermit:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.

In response, I suggested that natural property rights are unnecessary to explain why my behaviour would be wrong in this situation. Rights to privacy, freedom of association, and respect provide sufficient grounds for objection to my behaviour. This response, however, leaves open the possibility that the grounds for objection include natural property rights, even if natural property rights are not necessary for my behaviour to count as objectionable.

This possibility can be ruled out by meta-ethical considerations. As I’ve argued before on this blog (in the context of an argument for the equal intrinsic value of persons), moral facts cannot be brute facts (facts with no further basis, reason or explanation). This is because moral facts cannot be directly observed, and brute facts cannot, by definition, be inferred. This means we cannot possibly have knowledge of brute moral facts. Assuming there are no moral facts which moral agents are necessarily ignorant of, then, there are no brute moral facts. All moral facts are either true in virtue of some other, more basic moral (or otherwise broadly normative) facts or they are necessarily true.

Here’s why this is a problem for Huemer’s argument. Huemer posits natural property rights because, in his view, there are no other norms that could explain the wrong done to the hermit. This means that natural property rights must not only be pre-institutional, they must be morally basic — otherwise it would be possible to explain the wrong done to the hermit in terms of the more basic norms constitutive of natural property rights.

If there are no brute moral facts, then natural property rights can only be morally basic if it is necessarily true that there are natural property rights. But we should believe that natural property rights exist necessarily only if it is, on reflection, inconceivable for them not to exist. It would be inconceivable that natural property rights do not exist only if it is inconceivable that no wrong is done to the hermit and nothing besides natural property rights could explain that wrong. Because other explanations are available, it is conceivable that there are no natural property rights. So it is not necessarily the case that there are natural property rights. Because there could only be natural property rights if it were necessarily the case that there are natural property rights, there are no natural property rights. So natural property rights, as Huemer understands them, are not among the grounds for finding my treatment of the hermit objectionable.

An unconvincing case against redistribution

According to the philosopher Michael Huemer (in his paper “Is Wealth Redistribution a Rights Violation?”), taxation for the purpose of redistribution violates moral property rights of individuals. I’m not totally sure I follow his argument, but as best I can make out it’s something like this:

1. Moral property rights are determined strictly by the content of natural law (pre-institutional norms), strictly by positive (i.e. human-made) law, or by a combination of natural and positive law, where the positive law must conform to limits established by natural law.
2. If moral property rights were strictly natural, their parameters would in certain cases be indeterminate and thus incapable of guiding action.
3. The parameters of moral property rights ought to be determinate.
4. Moral property rights are not determined strictly by the content of natural law. (from 2 and 3)
5. If moral property rights are determined strictly by the content of positive law, then if slavery is legal, one can have a moral right of property in another person.
6. One cannot have a moral right of property in another person.
7. Moral property rights are not determined strictly by the content of positive law. (from 5 and 6)
8. Moral property rights are determined by a combination of natural and positive law, where the positive law must conform to certain limits established by natural law. (from 1, 4 and 7)
9. Natural law includes pre-institutional “core” property rights to which positive law must conform in the absence of some special justification.
10. A violation of core property rights occurs if the right-holder is coerced into transferring legitimately acquired property to another.
11. Taxation for the purpose of redistribution typically involves coercively transferring legitimately acquired property to another.
12. Taxation for the purpose of redistribution violates core property rights. (from 10 and 11)
13. A regime of property rights established by positive law that includes taxation for the purpose of redistribution is morally defective in the absence of some special justification. (from 8, 9 and 12)

The argument starts to go off the rails, I think, in premise 9. I’m more than happy to agree that legal property rights are constrained by pre-institutional norms. But it’s not clear that these pre-institutional norms include pre-institutional property rights, and Huemer’s argument for this claim seems inadequate. The argument involves the following thought experiment:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.

Essentially the argument is:

14. If the hermit does not have a property right to the hut he build and inhabits and the food he has produced, he has no grounds for complaint if you stay in the hut, alter its appearance, and eat the food he’s produced.
15. The hermit does have grounds for complaint under these circumstances.
16. The hermit does have a property right to the hut he inhabits and the food he has produced. (from 14 and 15)
17. The hermit does not have a legal property right.
18. The hermit has a non-legal (natural or otherwise pre-institutional) property right. (from 16 and 17)

Premise 14 seems to be the weak link here. It’s not at all obvious that the hermit can only complain on the grounds that his property rights have been violated. He might object to my behaviour because my company is unwanted, for example — i.e. that I’m infringing his rights to privacy and freedom of association. My behaviour may also fail to show due respect for the solitary way of life he’s chosen. And although Huemer stipulates that my conduct in this particular instance causes no harm to the hermit, a generally applied moral permission to occupy the hut he uses and eat the food he produces (for no reason, as the thought experiment also stipulates) could reasonably be expected to cause harm. This gives the hermit good grounds to reject a principle permitting that behaviour; in contrast, I cannot reasonably reject a principle forbidding that behaviour. Such a principle would, I think, fall far short of what Huemer imagines pre-institutional property rights to be — and what he needs pre-institutional property rights to be in order to reach the conclusion that redistribution violates pre-institutional property rights.

I’ll leave it at that for now, but the problems with Huemer’s case against redistribution don’t stop there. Even if it must be granted that there are pre-institutional property rights, there are reasons to doubt that redistribution necessarily or even typically encroaches on such rights. These further problems will be the subject of my next post.

Good policy, not “populism”, will make the NDP ready to govern

A2DWAX6XB43NVGQJBNHCAEAQHY

In an article by Alex Ballingall published on Saturday, Avi Lewis is quoted saying that the federal NDP should “chug this Kool-Aid [of populist politics] rapidly if they don’t want to be wiped out.” This is a strange metaphor to use in this context, given its widespread association with the mass murder-suicide at Jonestown, which claimed 918 lives. In the vernacular, “drinking Kool-Aid” has come to connote wilful acceptance of ultimately self-destructive delusions out of unthinking (normally political) group loyalty. This probably isn’t the best framing to use when you come bearing advice—especially not when the advice includes tips on effective political communication.

Regardless of framing, however, Lewis’s advice is not good. His view seems to be that the NDP should not develop actual policies. While he expresses approval for Jagmeet Singh’s latest call for measures to make sure the rich pay their fair share of taxes, he then expresses disappointment that Singh followed through on this slogan by proposing actual policies pertaining to tax fairness. “Why go for something that you have to explain?” Lewis asks. Instead of proposing policies, Lewis suggests, the NDP should stick to making “demands” delivered in simple phrases like “Federal Jobs Guarantee”.

A major problem here is that Lewis appears to have confused party politics with mere protest. Political parties normally do not confine themselves to making demands of those in power; rather, parties aspire to hold power themselves. Of course the NDP may, in its capacity as a part of the parliamentary opposition, make demands of the government. But the party’s job is also to go beyond making demands and present a credible alternative government. As such, the party must develop policies of its own that can be implemented if the voters entrust it with power; if the party can’t or won’t do this, then obviously the voters would be wrong to entrust it with power.

Lewis’s advice, then, makes sense only if the NDP is conceived strictly as a protest party, and not as a legitimate contender for power. Speaking as a New Democrat, I think that’s hogwash. Canada needs a social democratic government, and the NDP is the only party offering that option. New Democrats therefore owe it to the country to be a party that is worthy of consideration as an alternative government. Making reasonably detailed policy proposals available for public scrutiny and debate is part of what it takes to live up to that standard, and I’m pleased to see Singh following through on this.