Martha Nussbaum on sympathy and the welfare state

| ©2017 Photo by Cheriss May, www.cherissmay.com
Nussbaum delivering the 2017 Jefferson Lecture in the Humanities

From Political Emotions: Why Love Matters for Justice by Martha Nussbaum (pages 134-136):

Public emotions are a source of stability for good political principles, and of motivation to make them effective. So it will naturally focus on making people experience certain emotions in certain contexts and with particular objects (the nation itself, its goals, its specific tasks or problems, its people). But emotions are themselves in need of stabilizing. Even the most positive and helpful emotions, such as expanded sympathy, can be quite volatile, expanding and contracting as the focus of attention expands or contracts. As Adam Smith rightly observed, people can be deeply moved by an earthquake in China, but then quickly diverted from that focus by a pain in their little finger. The attempt to run an ambitious program of social redistribution only on the basis of emotion is doomed to failure.

Understanding this limitation, people who feel keen sympathy for a particular plight will seek not only to energize the emotions of their fellow citizens, but also to create laws and institutions to give stability to their cause. When you feel sympathy for the poor, it is fine to view that as occasion for philanthropy, but it is better to use that energy to create a decent tax system and a set of welfare programs. Emotions in this way operate at two levels. Once laws and institutions are reasonably just, emotions sustain them. But they also create motivations to improve those laws and institutions. When that happens, we might say that the institutions themselves embody the insight of emotions. That is what Mill meant when he said that anger and resentment lie behind the law: laws embody the insights of experiences of personal resentment, distilled by reflection and extended by sympathy to all. So too with tax and welfare policies: they embody sympathy, but in a way that is more stable and less prone to special pleading than is sympathy in real life.

When laws and institutions already embody the insights of good emotions, they facilitate the experience of those same emotions. Thus Tocqueville remarked that American institutions, situating people closer to one another in opportunity and status than European institutions, facilitate sympathy: it becomes easier to see one’s own fate in that of another when that other is not at a huge distance. Similarly, a welfare system that is entrenched and habitual makes it easier for people to feel sympathy for people who have suffered an economic calamity, since it establishes the principles that these people are entitled to support (rather than to blame for laziness, for example). Franklin Delano Roosevelt had a much more difficult emotional task prior to the New Deal than a leader would have in a settled and stable social democracy with a safety net. On the other hand, as the subsequent history of New Deal programs shows, good laws and institutions need the ongoing support of real people’s emotions — and need to be preserved from the corrosive effect of bad emotions.

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Generic reasons and the nonidentity problem in Scanlon’s contractualism

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T. M. Scanlon, portrait from Steve Pyke’s Philosophers series

Contractualist theories attempt to base morality (or some part thereof) on a hypothetical social contract arrived at through reasonable agreement. T. M. Scanlon’s contractualism identifies moral principles with principles for the general regulation of behaviour that no one can reasonably reject. The basic moral motivation is to conduct oneself in ways that can be justified to each person, insofar as they are reasonable.

One popular objection to Scanlon’s version of contractualism is that it has difficulty explaining our obligations with respect to future people, and especially that it runs into trouble with the nonidentity problem formulated by Derek Parfit.

The nonidentity problem arises cases where different courses of action will result in different people coming into existence. Suppose, for example, I recklessly dump chemical waste in a stream. As a result, Mary is born some years later, and suffers severe birth defects (though not so severe as to make her life not worth living). If I had not dumped the chemical waste, a healthy baby — Jerry — would have been born instead, and Mary would never have existed at all. Intuitively, by dumping the chemical waste, I’ve done something wrong. Most importantly, though, I’ve done something wrong to Mary, even though my actions have made her no worse off than she would otherwise be. But if she is no worse off because of my actions, it’s not clear how she can object on her own account to what I’ve done. This (allegedly) leaves contractualists at a loss to explain how I have wronged Mary at all.

Scanlon actually has a pretty compelling response at the ready, I think. In What We Owe to Each Other, he distinguishes between actual individuals to whom justification is owed, and the more abstract standpoints from which we consider whether principles could reasonably be rejected.* When I am considering whether it would be wrong to dump chemical waste in the stream, the question is not “What grounds does Mary have to reject a principle that permits me to dump this waste?” Instead, rejectability is to be assessed from the generic standpoint of “persons who live near the stream.” Although Mary would, if she existed, certainly be a person who lives near the stream,  Mary’s standpoint is not identical to the generic standpoint of persons who live near the stream. Perhaps Mary does not have grounds to reject a principle that would permit me to dump the chemical waste, but it seems to me that the abstract person who lives by the stream does. This means it is wrong for me to dump the waste, and I do wrong to Mary because I’ve done something to her that I cannot justify to her — something that is disallowed by a principle that no one can reasonably reject. On the contractualist view of moral justification, “You wouldn’t exist otherwise” is not much of a justification at all; to justify myself to Mary I would have to show that no one could reasonably reject a principle that permitted me to dump the waste, and that’s a tall order.

In the second volume of On What Matters, Parfit acknowledges and offers a critique of this defence against objections based on the nonidentity problem (pages 235-236). He refers to abstract personal standpoints like “persons who live near the stream” as general persons, contrasting them with individuals. General persons are groups of possible individuals; in the example above, the general person who lives by the stream includes the possible individuals Jerry and Mary.

Parfit claims there are two reasons why Scanlonian contractualism cannot assess principles from the standpoint of general persons. First, doing so denies individuals moral standing, instead treating them as “merely parts of a general person.” This ignores the moral significance of the separateness of persons, Parfit claims, committing the same error as utilitarians for whom individuals are only morally considerable insofar as they contribute to aggregate utility. Second, Parfit thinks that the using the standpoints of general persons is inconsistent with Scanlon’s purpose of providing an account of “the particular form of concern that we owe to other individuals.” General persons are not individuals, so assessing principles from the standpoints of general persons does not tell us what we owe to other individuals.

Both of these arguments are invalid. When assessing principles, we are to consider them from generic standpoints, but we are using these generic standpoints to find out what we owe to individuals. General persons don’t have moral status, on Scanlon’s view. The reasons attached to these standpoints are only of interest insofar as they help actual individuals find principles they can justify to one another. Because Scanlon’s contractualism grants only individuals and not general persons moral status, the complaint that contractualism fails to respect the separateness of persons misses the mark. And because the only reason why we care about general persons because they’re a useful tool for understanding “the particular form of concern that we owe to other individuals”, the argument that focusing on the rejectability of principles from the standpoint of general persons doesn’t tell us about what we owe to other individuals is incomplete.

Parfit’s confusion on this point parallels the way he (and other critics of Scanlon’s contractualism) conflate the forms of reasoning that contractualism employs with the content of the principles that contractualist reasoning generates. Some critics complain that by ruling out the aggregative reasoning that counterintuitively justifies imposing severe burdens on a small number of people in exchange for tiny benefits to some much larger number of people, contractualism also rules out benign cases of aggregative reasoning (as in decisions where we must choose between saving a larger or smaller number of people from some serious harm). As Scanlon points out, however, contractualism rules out aggregative reasoning, not aggregative principles.** Aggregative principles are only ruled out if such principles can only be arrived at by aggregative reasoning. But contractualists argue (convincingly, I think) that some aggregative principles are principles that no one can reasonably reject.

Similarly, Parfit conflates contractualist reasoning about general persons with the object of that reasoning. I consider principles from the standpoints of general persons in order to be able to justify myself to actual individuals, not so I can justify myself to general persons. Critics who want to press objections based on the nonidentity problem need to show that consideration of generic reasons is of no use in justifying ourselves to actual individuals. But this is a core commitment of Scanlon’s contractualism. If its critics can show that such a core commitment is false, objections based on the nonidentity problem would be superfluous.

Notes

*From What We Owe to Each Other, page 202: “According to contractualism, our concern with right and wrong is based on a concern that our actions be justifiable to others on grounds that they could not reasonably reject insofar as they share this concern. ‘Others’ figure twice in this schema: as those to whom justification is owed, and as those who might or might not be able reasonably to reject certain principles. When we think of those to whom justification is owed, we naturally think first of the specific individuals who are affected by specific actions. But when we are deciding whether a given principle is one that could reasonably be rejected we must take a broader and more abstract perspective.”

And from page 204: “As this discussion of the points of view that must be considered in deciding whether a principle could reasonably be rejected brings out, an assessment of the rejectability of a principle must take into account the consequences of its acceptance in general, not merely in a particular case that we may be concerned with. Since we cannot know, when we are making this assessment, which particular individuals will be affected by it in which ways (who will be affected as an agent required to act a certain way, who as a potential victim, who as a bystander, and so on), our assessment cannot be based on the particular aims, preferences, and other characteristics of specific individuals. We must rely instead on commonly available information about what people have reason to want. I will refer to this as information about generic reasons.”

And from “How I am not a Kantian”, in On What Matters, Volume II, page 131, footnote 86): “Parfit and I may take different views about the correct characterization of the ‘individuals’ whose reasons are to be considered. Although he does not say so explicitly, some of what he does say suggests that he has in mind actual persons affected by the action, or by the acceptance of the principle. In my case what we consider are not the reasons of actual persons but the ‘generic’ reasons that someone would have in virtue of occupying a certain role in regard to the principle in question, such as being the person who has relied on the assurance of others, or a person in need of help, or a person called upon to give it.”

**”Many people may be drawn to consequentialism because they see that there are some situations in which it the morally correct way to decide what to do is to figure out what would produce the best consequences overall. Decisions by public officials about what kind of hospitals to build may be a good example. Because producing the best consequences seems so obviously to be the right standard in these cases, people then infer that this idea is always morally basic. This seems to me to be a mistake: producing the best consequences might be the correct standard in these cases not because it is the basis of morality but because it is what is owed to people in situations of that kind, by agents who stand in a certain relation to them.” (from “How I am not a Kantian”, in On What Matters, Volume II, page 139)

Which votes are decisive?

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In the latest episode of The Boys in Short Pants (recorded and uploaded before the final count in Courtenay-Comox had begun), political scientist David Moscrop says:

“Everybody should vote. Voting is important. I actually happen to support mandatory voting. But when someone says this is evidence that every vote counts, that’s still wrong, because eight of those votes weren’t decisive.”

I think that’s almost exactly right. But which of the nine votes was the decisive one? In fact, it’s impossible to say that any of the thousands of votes cast were decisive. This isn’t just a fact that we’re unable to discover, for whatever reason; in this case, there actually is no fact of the matter to discover. If what it is for a vote to count is for that vote to be decisive, then no votes count. That doesn’t mean voting is unimportant. But it does mean that the importance of voting cannot be explained by the effect of particular votes on the outcome of an election.

Why the lieutenant governor cannot immediately call a new election

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WWEFD: What Would Eugene Forsey Do?

As I write this, final seat totals for the incoming legislative assembly may be only hours away. To while away the time, I’d like to help clear up some confusion regarding the role of the lieutenant governor in the event that a hung parliament is confirmed.

The CBC and the Globe and Mail have both reported that if Clark’s government is defeated straight away on the throne speech, Clark may advise the lieutenant governor, Judith Guichon, to dissolve the Legislature and call a new election. In that case, Guichon would have to decide whether to grant Clark’s request or instead call on John Horgan to form a government. The Globe quotes University of Victoria political scientist Ron Cheffins directly as saying “both options are legitimate.”

It is important here to distinguish between two different senses of the term “legitimate”. In the first sense, legitimate simply means prescribed by or permissible according to the law. In the second sense, legitimate means being an acceptable or justified use of power. In my view, both choices only have equal legitimacy in the first sense; in the second sense, Guichon cannot legitimately accept advice for dissolution if Clark is promptly defeated when the new legislature meets. And for reasons that should become clear shortly, only the second kind of legitimacy is relevant to the question Cheffins is trying to answer.

As an aside, don’t just take my word for it regarding the accuracy of Cheffins’s claim. I’m a philosophy undergrad, not any kind of expert on the Canadian constitution. But these issues are not arcane; we covered all this stuff pretty thoroughly in a 100-level course on Canadian politics I took at Capilano. And if you’d rather hear from the experts, here’s a sampling of the response from a number of experts on Twitter — four political scientists and a former clerk of the House of Commons.

(These are not cherry-picked examples; among the political scientists, constitutional lawyers and assorted parliamentary democracy geeks I follow, I didn’t find a single supporter of Cheffins’s view.)

But one way I can shed some additional light on my own, I think, is to explain why Cheffins is mistaken about what convention allows.

As I discussed in another recent post, the constitution consists of both laws and conventions. Conventions are non-legal rules that modify and restrict the application of the law. According to law, viceregal officials can refuse royal assent to any bill for any reason, no matter how frivolous, dissolve parliaments and call elections at will, dismiss first ministers for smelling bad or sounding funny, and appoint new ones from among the winners of a sack race. In other words, according to law, Canada is a cartoon dictatorship. The constitution’s democratic credentials rest on the way the rules of constitutional law interact with the conventions of responsible government.

Responsible government refers to a system in which the government (in this context, the executive) is drawn from and responsible to the legislature. The conventions of responsible government are the non-legal rules that dictate that the legal powers of the relevant constitutional actors are exercised so as to uphold this system. The fundamental purpose behind the system of responsible government and its constitutive conventions, in turn, is the realization of democratic government.

The guidance provided by the conventions of responsible government is normally so clear that their operation is almost invisible. For example, according to convention, the government must maintain the confidence of the legislature in order to continue in office while exercising its full range of powers. Continuing confidence is expressed by votes approving the throne speech that lays out the government’s agenda at the beginning of each parliamentary session, and supply bills authorizing the government to draw on the Consolidated Revenue Fund (the formal name for the government’s giant money bin). Loss of confidence may be expressed votes against the throne speech or supply bills, or votes approving motion of non-confidence. Where a bicameral legislature exists (e.g. in Canada’s national parliament), convention holds that only the lower house (usually the only elected chamber, and always the chamber that is most directly accountable to the public) has the power to express or withhold confidence in the government — a practical example of how responsible government is ultimately justified by reference to the goal of democratic rule. When the governing party or coalition has an overall majority, observance of these conventions may seem like an empty formality, but the truth is that they are always in operation and always binding. When the leader of a majority government advises dissolution for a snap election and the viceroy consistently complies, it might look as though first ministers are entitled to a viceroy’s automatic compliance. They are not. It’s simply the case that first ministers and viceroys are normally so clear on what the relevant conventions require that first ministers tend not to advise dissolution except when convention clearly permits the viceroy to grant it.

There is a sense, then, that a hung parliament gives a viceroy no special role at all — they perform the same functions and follow the same conventions that they do when one party has an overall majority. We just tend to notice the viceroy’s role a lot more because the circumstances in which they perform their role are more politically charged, and lead to more reasonable disagreement about what the relevant conventions actually require. The guiding principles, however, remain the same. The lieutenant governor must protect the system of responsible government in a way that respects the underlying value of democratic rule.

When a parliament is dissolved, the government remains in power continuously (although its members cease to hold any parliamentary office, as there is no longer any parliament in which there are offices to be held). But even when there is no legislature to which the government can be held responsible during the election period, conventions of responsible government still guide the relevant actors. The government continues to hold all of its normal legal powers, but it is bound to exercise those powers within the limits of the caretaker convention.

The Privy Council Office’s official guidance summarizes the caretaker convention as follows:

[The] caretaker period begins when the Government has lost a vote of non-confidence or Parliament has been dissolved. It ends when a new government is sworn in, or when an election result returning an incumbent government is clear.

In short, during an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is:(a) routine, or
(b) non-controversial, or
(c) urgent and in the public interest, or
(d) reversible by a new government without undue cost or disruption, or
(e) agreed to by opposition parties (in those cases where consultation is appropriate.

In determining what activity is necessary for continued good government, the Government must inevitably exercise judgement, weighing the need for action and potential public reaction, given the absence of a confidence chamber and the possibility that a different government could be elected.

A government operating under the caretaker convention is running on legitimacy borrowed from the previous parliament, and in BC, neither of the conditions that end the caretaker period has been fulfilled. There is no new government, and it is uncertain whether the election result will give Clark’s government enough supporters to command the confidence of the new legislature. If the final count confirms a hung parliament, this may be uncertain for some time — possibly until the moment Clark chooses to test it in a new legislative session. But as soon as the final count is complete, we will know for certain who has attracted enough supporters be sworn into office as a Member of the Legislative Assembly. These individuals can each claim a democratic mandate granted directly by the public to go to Victoria and decide whether the government deserves a vote of confidence.

This is why our conventions of responsible government, ultimately justified by reference to democratic values, do not permit Judith Guichon to dissolve the Legislature if the Clark government is immediately defeated on the throne speech, or defeated shortly thereafter on another matter of confidence (assuming that the possibility of an alternative government has not been ruled out by the leader of the opposition). The incoming legislature has a fresh democratic mandate directly from the public; the premier has only a provisional and indirect mandate from a legislature that has expired. If the viceroy were permitted to dissolve the legislature under these circumstances, a government could continue in office indefinitely no matter how disastrous its performance at the polls. Even if the government party were completely wiped out, the premier could send in the lieutenant governor with a throne speech, accept defeat in the resulting vote, and then advise another dissolution. In other words, if convention permitted the lieutenant governor to grant a dissolution on request, responsible government would not necessarily be democratic government; the lines of responsibility would be completely reversed, so as to make the legislature (and, by extension, the voting public) responsible to the government. Because democratic government is the aim of responsible government, it follows that convention cannot allow the lieutenant governor to grant a dissolution on request.

Note on terminology: BC has a parliamentary system of government, and if you look at the official records, you’ll see that the history of the Legislature in BC is divided into numbered Parliaments, but our parliament is officially called the Legislature. However, the term “legislature”, when uncapitalized, usually refers only to the legislative chamber (or chambers), which in BC is called the Legislative Assembly. Strictly speaking, the Legislature (when capitalized) refers to the parliamentary body as a whole, i.e. the Legislative Assembly and the lieutenant governor. What a mess! I’ve tried to make it clear from context when I’m referring to parliaments in general, the parliament of BC (i.e. the Legislature), BC’s elected house of parliament (the Legislative Assembly), etc., but I don’t know if I’ve done a good job. Please don’t hesitate to ask if you’re confused about anything.

Jordan Peterson’s straw man egalitarianism

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At the urging of a couple of friends, I’m working my way through a three hour interview with Jordan Peterson, the controversial University of Toronto psychologist, by Joe Rogan, a comedian who hosts a popular general interest podcast. It’s slow going, because Peterson is frankly a massive blowhard, and although many of his key claims are unsupported or easily rebutted, the sheer volume and the lack of a clear argumentative structure linking those claims — together with Rogan’s obsequious interview style — makes for a tedious and unrewarding listening experience.

Here’s one example that serves as a good illustration of Peterson’s sloppiness. Somewhere around the twenty-five minute mark (during the segment from 14:50-16:50 in the Youtube version of the podcast), Peterson argues that “social justice warriors” (a phrase he has not given any determinate content) are motivated by a concern for equity, which he defines idiosyncratically as strict equality of outcome. But the goal of equality of outcome (as opposed to equality of opportunity) is misguided, he says, because:

the reason anyone strives to better themselves, or to develop a skill, or to move forward in life at all is to produce inequality. You’re trying to rise above the mediocre masses every time you make an effort at anything. And so everything that we associate positive movement forward or positive motivation [with] is actually an attempt to render the world more unequal.

But that’s obviously not true. Sometimes people are motivated by concern for their own survival, or well-being beyond survival. If I’m dying of thirst, for example, the fact that I will die without water gives me sufficient reason to go looking for water; I do not need to check how much water anyone else has before deciding that this would be a worthwhile use of my time and energy. Similarly, as someone who enjoys eating cookies, the fact that baking cookies would provide me with many delicious cookies to eat gives me a reason to bake some cookies, regardless of how this would affect my cookie holdings (or cookie eatings) relative to any other person’s.

Even when people do have relative status on the brain, they may be motivated specifically to reduce inequality. Consider the civil rights movement, for example, or the labour movement, or the feminist movement. No one could deny that people involved with these movements went to great effort to accomplish their aims. But all three of these movements were and are aimed at reducing various inequalities, even to the point of elimination. The conjunction of these facts is impossible on Peterson’s view of the nature of human motivation, so because the conjunction is manifestly true, Peterson’s view must be false.

Peterson is right about one thing, though. I agree that strict equality of outcome is not a feasible goal. Perhaps that is why virtually no one actually thinks we should be aiming at strict equality of outcome. In years of research, the political philosopher Elizabeth Anderson has found only one figure in the history of egalitarianism who holds this view, the French revolutionary Gracchus Babeuf. In other words, to make his case against egalitarianism, Peterson has built the flimsiest of straw men and then utterly failed to knock it down.

Even if strict equality of outcome across the board isn’t worth pursuing, though, it doesn’t follow that inequality of outcome is of no concern. Rawlsian egalitarians, for example, argue in favour of a defeasible presumption in favour of strict equality of income and wealth. On this view, deviating from strict equality is permissible only if it would benefit the least advantaged group in society. This principle gives us good reason to be concerned about inequality of outcome, because the degree of inequality in our society is actually harmful to the least advantaged. Moreover, unless there are some constraints on inequality of outcome, equality of opportunity itself may be threatened.

Peterson doesn’t delve into any of this, of course. As soon as he’s finished attacking his caricature of egalitarianism, he’s off to give another subject the same treatment. This goes on for another two and a half hours, and I’m not sure I want to bother.

BC election aftermath: Politics and the constitution

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Politically engaged citizens preparing to enforce the norms of responsible government

One respect in which Canada is unlike most other democracies is that there is no document or set of documents that comprises the entire constitution; in other words, we have what is sometimes (misleadingly) called an unwritten constitution, meaning that some of the most important features of our constitution are defined by custom and convention rather than the written word.

For example, if you want to know all about the office of the President of the United States, you can just whip out your pocket constitution and it’s all right there: term of office, method of selection, executive powers, and so forth. But if you want to know all about the office of the Prime Minister of Canada, you may be disappointed to find that the Constitution Acts contain only a single mention of the position, and the relevant section is concerned only with the PM’s role in constitutional conferences. The closest the written part of the constitution comes to actually defining the position is the bit at the beginning where it says that Canada will have a constitution “similar in principle to that of the United Kingdom.” But because the UK’s constitution is even less thoroughly codified than Canada’s, that doesn’t clarify a whole lot by itself either!

Fortunately, there is a broad consensus among scholars about much of the content of the unwritten rules that comprise so much of our constitution. Reading a chapter or two from an introductory political science textbook should give you the fundamentals. How Canadians Govern Themselves by Eugene Forsey, which the Library of Parliament has made available for free as an e-book, is also an accurate, accessible introduction or refresher.

It’s very important for these conventions to be widely understood by Canadians, for two reasons. First, conventions are non-justiciable, meaning that they cannot be enforced by the courts. The sanctions and remedies for violation of a convention are all political, not legal. In other words, enforcement of conventions is ultimately up to us. And second, it is only by convention that our constitution is democratic at all. This long quote from the Patriation Reference lays it all out:

…[M]any Canadians would perhaps be surprised to learn that important parts of the consti­tution of Canada, with which they are the most familiar because they are directly involved when they exercise their right to vote at federal and provincial elections, are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution.

It is also a constitutional requirement that the person who is appointed prime minister or premier by the Crown and who is the effective head of the government should have the support of the elected branch of the legislature; in practice this means in most cases the leader of the political party which has won a majority of seats at a general election. Other ministers are appointed by the Crown on the advice of the prime minister or premier when he forms or reshuffles his cabinet. Ministers must continuously have the confidence of the elected branch of the legislature, individually and collec­tively. Should they lose it, they must either resign or ask the Crown for a dissolution of the legisla­ture and the holding of a general election. Most of the powers of the Crown under the prerogative are exercised only upon the advice of the prime minister of the cabinet which means that they are effectively exercised by the latter, together with the innumerable statutory powers delegated to the Crown in council.

Yet none of these essential rules of the constitu­tion can be said to be a law of the constitution.

[…]

As a matter of law, the Queen, or the Governor General or the Lieutenant Governor could refuse assent to every bill passed by both Houses of Parliament or by a Legislative Assembly as the case may be. But by convention they cannot of their own motion refuse to assent to any such bill on any ground, for instance because they disapprove of the policy of the bill. We have here a conflict between a legal rule which creates a com­plete discretion and a conventional rule which completely neutralizes it. But conventions, like laws, are sometimes violated. And if this particular convention were violated and assent were improp­erly withheld, the courts would be bound to enforce the law, not the convention. They would refuse to recognize the validity of a vetoed bill. This is what happened in Gallant v. The King a case in keeping with the classic case of Stockdale v. Hansard where the English Court of Queen’s Bench held that only the Queen and both Houses of Parliament could make or unmake laws. The Lieutenant Governor who had withheld assent in Gallant apparently did so towards the end of’ his term of office. Had it been otherwise, it is not inconceivable that his withholding of assent might have produced a political crisis leading to his removal from office which shows that if the remedy for a breach of a convention does not lie with the courts, still the breach is not necessarily without a remedy. The remedy lies with some other institutions of government; furthermore it is not a formal remedy and it may be administered with less certainty or regularity than it would be by a court.

Another example of the conflict between law and convention is provided by a fundamental con­vention already stated above: if after a general election where the opposition obtained the majori­ty at the polls the government refused to resign and clung to office, it would thereby commit a fundamental breach of convention, one so serious indeed that it could be regarded as tantamount to a coup d’état. The remedy in this case would lie with the Governor General or the Lieutenant Gov­ernor as the case might be who would be justified in dismissing the ministry and in calling on the opposition to form the government. But should the Crown be slow in taking this course, there is nothing the courts could do about it except at the risk of creating a state of legal discontinuity, that is, a form of revolution. An order or a regulation passed by a minister under statutory authority and otherwise valid could not be invalidated on the ground that, by convention, the minister ought no longer be a minister. A writ of quo warranto aimed at ministers, assuming that quo warranto lies against a minister of the Crown, which is very doubtful, would be of no avail to remove them from office. Required to say by what warrant they occupy their ministerial office, they would answer that they occupy it by the pleasure of the Crown under a commission issued by the Crown and this answer would be a complete one at law, for at law the government is in office by the pleasure of the Crown although by convention it is there by the will of the people.

[…]

It is because the sanctions of convention rest with institutions of government other than courts, such as the Governor General or the Lieutenant Governor, or the Houses of Parliament, or with public opinion and ultimately, with the electorate, that it is generally said that they are political.

No, the Liberals didn’t win a minority government

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We don’t need to wait for the final results to know that CBC’s headline is false

When the preliminary count was completed on Tuesday night, no single party had broken the 44-seat threshold for a majority in British Columbia’s Legislative Assembly. The Liberals were in the lead with 43 seats, followed by the NDP with 41 and the Greens with 3.

It is unknown whether these totals will remain the same after the final count (which, unlike the election night results, includes absentee ballots) is completed in a couple of weeks. Until then, it is impossible to say who will end up in power. However, this has not stopped major media outlets from declaring that the outcome of the election is a Liberal minority government. This is false.

Assuming the preliminary count holds up, the outcome of the election is a hung parliament (sometimes called a minority parliament), meaning that no single party has a majority of seats. Under BC’s parliamentary system of government, elections determine the composition of the Legislative Assembly; they do not determine the composition of the government. It is up to the Legislative Assembly to determine whether Clark can continue to govern with a minority. Reporting that the election has resulted in a minority government is therefore not at all accurate.

For the time being, Clark is the premier, and will remain so until such time as she tenders her resignation to the lieutenant governor. If she wishes, she has every right to meet the legislature and test whether she has the confidence of the house. As long as she can hold the confidence of the house, she can continue to govern with a Liberal minority in the legislature.

However, this is not the only possible outcome. In the days to come, Clark may try to form a majority government through coalition with the Greens, inviting members of their caucus to join her cabinet while maintaining their party affiliation. Alternatively, being unable or unwilling to make the concessions necessary to bring the Greens into her government and anticipating inevitable defeat once the new legislature convenes, Clark may announce her resignation. In that case, the lieutenant governor, Judith Guichon, would invite John Horgan to form a government. Like Clark, Horgan would have the option of trying to keep a minority government afloat, or he might try to form a majority government through an alliance with the Greens.

So it is wrong to report that the election has resulted in a minority government. By the fall, we may very well have a Liberal minority government, but with Tuesday’s results we could just as easily have a Liberal/Green majority government, an NDP minority government, or an NDP/Green majority government. Or, if it seems no viable government can be formed with the legislature the people voted in on Tuesday, we might even be heading back to the polls.

Like Stephen Harper in 2008, Clark’s people can be expected to try to exploit the public’s unfamiliarity with situations of this type and rule out the various constitutional alternatives by portraying them as illegitimate. In this situation, the media need to be mindful of their responsibilities.

By reporting that the election has yielded a Liberal minority government, journalists risk fostering the mistaken impression that a Liberal minority government is more democratically legitimate than the alternatives. Such a false impression would be uniquely politically advantageous to the governing party. That makes it especially important for the media to take great care with the constitutional accuracy of their reporting on the election result and aftermath.

Bernard Williams on philosophy as a conversation

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From “On Hating and Despising Philosophy”, published in Essays and Reviews, 1959-2002:

There is another worry that goes beyond the numbing presence of too many professional exercises. Analytical philosophy has, correctly, held onto the idea that there must be something in philosophy that counts as ‘getting it right’. In this, it properly rejects Richard Rorty’s model for the future of philosophy (or rather, as he sees it, of what used to be philosophy), the model of a conversation. Unless a conversation is very relentless—for instance, one between philosophers—it will not be held together by ‘so’ or ‘therefore’ or ‘but’, but rather by ‘well then’ and ‘that reminds me’ and ‘come to think of it’, and it is simply unclear who will stay around for it, and why. In fact, it is tempting to think that the conversation model is secretly an ally of professionalisation: the only people who will take part in such a conversation are those who are paid to do so.

Reviewing the Globe’s election endorsement

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Let’s take a look at the Globe and Mail’s endorsement of Christy Clark and the BC Liberals.

First, it says government in BC has reached new heights of plutocracy and corruption on Christy Clark’s watch, and lax fundraising rules give the governing party a huge financial advantage over its rivals. But on the other hand… this gives the opposition grounds to criticize the government. So in the end, everyone’s basically even! Point for Clark.

And Clark promised to strike a panel to recommend ways to change political fundraising rules in BC, so she’s already as good as delivered on promises of reform she didn’t actually make. Another point for Clark. 

Now consider the state of the economy, which is really quite good compared to the rest of the country. Actually this has nothing to do with anything the party in power did, because BC does not have a command economy. But the Liberals didn’t deliberately try to ruin the economy. Another point for Clark!

What about environmental policy? Well, the Liberals introduced a rather good carbon tax. Nine years ago. Under a different premier. When Clark was not in politics in any capacity. Still, it seems only fair to give Clark the point for this, for some reason.

Now on to fiscal policy. Well the budget is balanced and debt is relatively low compared to provinces on the other side of the country facing totally different problems. There is, of course, no need to scrutinize the means by which the Liberals achieved a balanced budget, because government budgets are purely about numbers and it doesn’t really matter in material terms what spending gets cut to make those sweet, sweet numbers come out right. Point for Clark.

On the issue of housing prices, for years the Liberals ignored calls from housing advocates and the NDP to craft a policy response. When it finally did so, its interventions were incompetent and half-hearted. But half a heart is better than none! Again, point for Clark.

Finally, the Liberals and NDP disagree on the Trans Mountain pipeline expansion. We’ll just assume the NDP is wrong on this one. Therefore we will award the point to Clark and deduct one point from John Horgan and the NDP for not changing their minds about the pipeline.

The final score: Christy Clark and the BC Liberals, 7 points. John Horgan and the BC NDP, -1 point. It’s true we haven’t really talked about Horgan and the NDP much at all, but when the government and the opposition are at odds, we should probably assume that the opposition isn’t worth paying attention to. Otherwise they’d be the ones in government. Therefore, the Globe endorses Christy Clark and the BC Liberals.

If you’ve been looking for that perfect illustration of how rationalization differs from reason, look no further.

Rent control, affordable housing and the Vancouver Tenants Union

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Last Saturday, activists met to launch a new organization for renters in Vancouver: the Vancouver Tenants Union. The VTU’s functions will include both member services, such as advice, support and legal assistance for tenants having trouble with landlords, and organizing and advocacy for policy change. Overall, I think this is a tremendously positive and exciting development, and I encourage people to donate to or join the organization. However, I have serious reservations about the VTU’s stated goal of implementing “real rent control” — one of four core demands, along with greater protection against eviction, more housing, and broadly shared increases in income.

The phrase “real rent control” is ambiguous (“real” as opposed to what?) and the VTU’s website offers no further details on this or any of the other core demands (which is fair enough as this early stage, I think). But in the CBC article linked above, Wendy Pedersen is quoted citing Montreal as a model for what the VTU hopes to achieve. This is still very vague, but clear enough to raise the following concern.

Among economists, there is a robust consensus that rent control along the lines practiced in cities like Montreal, San Francisco and New York has perverse consequences, meaning that while the aim of the policy is to improve access to affordable housing, the actual effect of the policy is to worsen access to affordable housing. The theory is simple. Prices are signals and incentives; fixing the price of housing lower than it would otherwise be sends the signal that demand is low relative to supply, increases the incentive to rent rather than own (further increasing the hidden demand), and reduces the incentive to invest in increasing supply (relative to incentives to make other investments). The expected result is a shortfall in the supply of housing. So much for theory; what about practice? In his book Economics Without Illusions, the philosopher Joseph Heath writes:

What’s interesting about the case of rent control is that the real world does work almost exactly the way that Economics 101 says it should (as anyone who has lived in New York or Montreal can attest). As the (left-wing) economist Assar Lindbeck once put it, apart from generating housing shortages, rent control produces “black markets, privileges for those who happen to have a contract for a rent-controlled apartment, nepotism in the distribution of the available apartments, difficulties in getting apartments for families with children, and, in many places, deterioration of the housing stock. In fact, next to bombing, rent control seems in many cases to be the most efficient technique so far known for destroying cities.”

The political consequences of making affordable housing scarcer are worth thinking about too. Rent control does have benefits for insiders — in this case, current tenants. So let’s suppose we only care about current tenants (i.e. no weight is given to the interests of their children, the homeless, newcomers to the city etc.), and the interests of current tenants are understood in the narrowest terms, as being able to stay in the units they currently occupy (i.e. we don’t think mobility is an important part of the right to housing, we don’t care if tenants miss out on opportunities that require them to relocate in the city, we don’t care if their housing needs change because they start a family or have a relative come live with them or they become disabled etc.). If that’s all we care about, rent control would deliver the goods. But with a fixed supply of affordable rental housing, the proportion of relatively high earners in the city would grow steadily, and low-income individuals would become steadily more marginalized in social and political as well as economic terms. This seems like a shortcut to the nightmare scenario: Vancouver as Dubai on the Salish Sea. So even if current tenants’ interests are weighted as I’ve just described, there is a critical need to increase the supply of affordable housing on social engineering grounds, to halt (or ideally reverse) the growing political imbalance in the region.

Given the strength of the theoretical and empirical case against rent control, it may seem puzzling that the VTU would adopt this as a core demand. I suspect there are two reasons why the VTU has done so. The first is that rent control offers immediate relief from one of the significant hardships renters face. The most serious negative consequences of rent control are felt over time, but the negative consequences of the status quo are felt here and now. The other reason is that rent control might seem more politically achievable because of general hostility residents often express regarding new construction (even — or perhaps especially — when the new construction includes units set aside for low-income housing) and the popular prejudice that regulatory changes are basically costless (as opposed to, say, public investment in affordable housing).

These considerations may explain the VTU’s demand for rent control, but I don’t think they provide a justification for it. There may, however, be a case for implementing a strictly short-term rent control regime as part of a comprehensive housing policy package. The negative consequences of rent control are most profound over an extended period, not in the short term. If the government introduces other measures that are likely to be more effective at improving access to affordable housing over the long term, like creating a new crown corporation to oversee the construction of new affordable housing and a mandate for municipalities to reform their zoning bylaws, then why not also introduce a temporary rent control policy to tide people over? As long as the government’s commitment to the policy’s sunset provision is generally regarded as credible (which may be a difficult hurdle to clear, given that the most famously disastrous cases of rent control were originally intended to be merely temporary), the long-term effect should be negligible. I think it’s critical, then, for the VTU’s core demands to be considered as a bundle, not as a collection of discrete, independently worthwhile objectives. For the time being, however, it’s an open question whether this is the VTU’s own understanding of the demand for rent control. Clarifying its position on this issue could earn the fledgling organization some badly needed credibility at no significant cost, and I encourage the organization to do so.