Why Theresa May cannot call another election

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A rare sight: Queen Elizabeth II delivering the Speech from the Throne in the Canadian Senate chamber in 1977

Most Canadians are probably aware that, like BC, the UK has just elected a hung parliament — a parliament in which no single party has an overall majority. The governing Conservatives, under the leadership of Theresa May, have struck a confidence and supply agreement (the same kind of alliance the NDP has formed with the Green Party) with the Democratic Unionist Party in Northern Ireland, hoping to continue in power as a minority government. The two parties have a combined majority of seats, but the Mirror has reported that Jeremy Corbyn, leader of the opposition Labour Party, thinks he may still be able to muster enough votes to oust May in the vote on the Queen’s Speech (the British version of our Speech from the Throne), perhaps with support from Conservative backbenchers. The Mirror article goes on to say that the government’s defeat “could trigger another election as the Tories would face a confidence challenge.”

That brings us to a major difference between the constitutional contexts in BC and the UK. In our case, there would be no new election because there is a clear alternative available if the governing party is defeated. But if it seemed that no party could win the confidence of the house, the lieutenant governor would grant a request for dissolution and a new election. Until relatively recently, this was also the case in the UK. But it has not been the case since 2011, when the Conservative-Liberal Democrat coalition passed the Fixed-term Parliaments Act (hereafter the FTPA).

The FTPA replaces convention-based limits on the prime minister’s right to advise dissolution (and the monarch’s power to grant it) with strict legal limits. The timing of regular scheduled elections is defined by law. An early election may only be called in two kinds of circumstances. The first is if a motion calling for an early election is passed in the House of Commons by an absolute majority of two thirds (i.e. there must be two thirds as many votes as there are seats in the House of Commons, not just two thirds of MPs present for the vote). The second is if the House of Commons passes an explicitly worded motion of no confidence (the exact form of which is defined by the FTPA) and does not pass a similarly explicit motion of confidence within fourteen days (that is, if no alternative government can be formed within the following two weeks).

Assuming that the convention treating the vote on the Queen’s Speech as a matter of confidence survives in the post-FTPA era, then, the Mirror is mistaken. The government’s defeat cannot possibly trigger another election. The government would be forced to resign, having failed to win the confidence of the new House of Commons. But there would have been no motion of no confidence, so the fourteen-day countdown would not be triggered. In all likelihood, Corbyn would be asked to try to form a government. But if he too was defeated in the vote on the Queen’s Speech, he would not have the option to request an election either. Barring some ridiculously unlikely arrangement like a grand coalition of the major parties, the Commons would have to vote to dissolve itself in order to resolve the deadlock.

Kumar on contractualism and aggregation

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Rahul Kumar, from “Contractualism on the Shoal of Aggregation” in Reasons and Recognition: Essays on the Philosophy of T. M. Scanlon, pages 148-150:

Recall, for instance, a case mentioned earlier concerning the choice of locating a chemical research facility in a large urban center or in a sparsely populated rural area: intuitively, the facility ought to be located in the sparsely populated rural area, though the consequences of an accident are much worse for any of the local population than it is for any of those living in the urban center. Structurally, however, this type of case is different from that of Rocks: in that case, the implications for each of the rescuer’s choice are the same. But in this case, the potential burdens are not equal. And intuitively, it seems that it is the greater number, each [standing] to have to bear the lesser, though comparatively morally relevant, burden that can complain of being wronged if exposed to the risk that the chemical research facility creates.

Though a detailed exploration of how to account intuitions of this type of case using contractualist resources goes beyond what I can undertake here, it is worth briefly considering what kinds of resources might be marshaled for the task. First, it is relevant that the above chemical factory case is one that involves the imposition of a risk of harm rather than the imposition of harm. Those living in the rural area may, therefore, stand to suffer a greater harm if the risk materializes as harm yet be less likely to suffer harm than those living in the urban setting. This may have to do in part with a sense that those living in the rural rather than the urban setting have a better opportunity to avoid being harmed (it being easier, for instance, for them to get out of harm’s way).

Second, though those living in the urban center will not each be as seriously harmed by an accident at the chemical research facility, the significance of their being harmed may not be exhausted by the harm each incurs. The proper functioning of a large urban center could be considered an irreducible, non-exclusive public good: one that cannot in principle be realized without a great many people doing their part and contributed to the lives of both those who participate in realizing it and those who do not. Appealing to the possible implications of a proposed principle for the availability or accessibility of a public good, which may supervene on the fact that a great number of individuals stand to be harmed, does not violate the individualist restriction in the way appealing to the mere fact of the number who stand to be harmed clearly does.

Such a strategy might be used to understand the basis of an intuition to which Scanlon draws attention in his discussion of aggregation, that it might be wrong to save a life rather than saving millions from paralysis or blindness. Depending on how the details of the case are filled out, however, a further, third strategy is available. Say that the one will be saved or millions saved from paralysis or blindness depending on how certain public resources are deployed by state officials. A case might be made on grounds of the duty of the state to concern itself with public health for state resources being deployed in a way that balances the importance to those subject to the state’s authority of having the resource in question deployed in a certain way with the number of citizens who will be benefitted from the resource being deployed in this way. A principle governing state action that is sensitive to the number of persons who stand to be affected is compatible with the individualist restriction as long as the justification of the principle relies not [on] the fact that a great many stand to be benefited, but on an account that connects the interests of a citizens with the state attending to public health concerns in a way that is sensitive to the numbers of persons in question.

[…]At the heart of deontological or non-consequentialist ethical theory, as Christine Korsgaard puts it, is the thought that the ‘subject matter of morality is not what we should bring about, but how we should relate to one another.’ In this respect, Scanlon’s contractualism is avowedly deontological, emphasizing the importance to the morally motivated of standing in a particular type of relationship to all others, one of mutual recognition.

It is one thing, however, to note the general relational character of the contractualist outlook but quite another to keep the importance of the point in view when working through substantive moral questions in a contractualist mode. This is particularly true, I believe, in the case of the discussion of how to make sense, on contractualist terms, of the intuitive relevance of aggregative considerations. In thinking about the relevant kinds of cases, we are naturally drawn to focusing on the possible outcomes of different choices, and from there it is easy to find oneself thinking that what is of central moral importance is what outcome obtains.

[…M]any of the challenges to the plausibility of the contractualist account in its current form that the intuitive relevance of aggregative considerations are thought to present are rooted in attaching an importance to facts about outcomes that is at odds with contractualist thinking. Careful attention to the relational character of the contractualist account […] allows us to both make better sense of contractualism’s rejection of the relevance of aggregative considerations and start to see how the seeming relevance of such considerations in certain cases can be explained using contractualist resources.

What is music education good for?

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Lisa Simpson striving to develop the human capital needed to succeed in the new innovation-sharing new economy jobs of the new tomorrow, which is new

This article on music program cuts in public schools turned up in my Facebook “memories” feed today, along with the following remarks. The broader issue is as current as ever and I still believe what I wrote, so I’m re-posting here in lightly edited form.

In the article, celebrated music teacher Hans Fenger is quoted saying:

Music and art are activities which allow children to think in a more abstract way … a kind of thinking that allows children to be more open to new ideas, to be more retrainable.

Music and art are those subjects that create citizenship in a school, gives kids a sense of belonging, gives kids a sense of working with other kids together, and it gives your school the kind of feeling that you want to be there.

It troubles me that even the most committed advocates of music in our schools feel compelled to make their case by talking about how being in a band makes you more “retrainable”. I don’t believe for one second that the production of especially retrainable labour resources is what motivates anyone who teaches or performs in a school band or choir. I think these people actually feel that music is a worthy activity and a good in itself. The instrumental value of music programs (no pun intended) is real, and it’s important, but setting aside the non-instrumental values at stake concedes far too much.

Certainly the school system is about preparing children for adult working life, adult civic life, and adult social life. But it’s also a place where children live their actual lives, and I think we should want the children in our society to have actually valuable things in their lives, not just things that will eventually turn out to be useful for acquiring unspecified actually valuable things at some point down the road. So, for example, schools should have resources to support healthy social relationships among students, not just because this will make them easier to work with when they get a job with other people, but because healthy social relationships are part of a good life for a child. They should have classes in math, languages, sciences, history, etc. not just because mastery of those subjects opens economic opportunities in the future but because knowledge is a good thing, and growing in knowledge is part of a good life for a child. And they should have classes in music and art not just because these engage the kind of faculties that might one day be used to build a better mousetrap, or work on a team that is building a better mousetrap, or retrain to work on a team that is building a better mousetrap, but because making music and art is part of a good life for a child. Schools are for the good of the people, and children are people. This should be the starting point for an argument in defence of music in our schools, not a footnote to it.

Why BC should not hold another election right away: a response to David Moscrop

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I think we’re all starting to feel like this

At Maclean’s, political scientist David Moscrop argues that the impasse over selecting a Speaker for the incoming Legislative Assembly should be broken by calling a new election in the hope of achieving a more decisive result. The problem, if I understand Moscrop’s view correctly, is that the likely alternative to a new election is to select a partisan Speaker who consistently breaks tie votes in the government’s favour. This would be a profound breach of the Speaker’s traditional impartiality. But the legislature depends on the Speaker’s impartiality to ensure procedural fairness in the business and administration of the legislature, and the legislature’s legitimacy as a democratic institution depends in part on reliably meeting such expectations of fairness. Damaging the Speaker’s impartiality, then, threatens to damage the legislature’s legitimacy as a democratic institution. This is not to be done lightly, and there is a far simpler and more innocuous alternative available: the issue can be resolved easily just by having another election right away.

Moscrop argues that this course of action looks even more attractive when we consider the tenuousness of any prospective governing arrangement in this legislature, even if the deadlock over the Speakership is resolved or the cost of politicizing the office is deemed acceptable. The result of the May 9 election has no special status as an expression of “the people’s will” (nor could it, as the evidence suggests that “the people’s will” lacks determinate content). Whatever the result of the new election turns out to be, it will be just as democratically valid as the result of the last one, but with the probable advantage of yielding more stable options for government — a single party majority, perhaps, or another hung parliament where an alliance of parties would collectively form a decisive majority.

I share Moscrop’s concern about breaking the convention of the Speaker’s impartiality, and his skepticism about the special status of the May 9 election result. In the end, however, I think the concern for fairness and the integrity of our democratic institutions that motivates Moscrop’s case against breaking convention actually better serves the case against having another election.

To begin with, I think it’s important to note that this “impasse” is largely speculative. The members of the Liberal caucus have reportedly all declined nomination, but until nominations are actually open — that is, until the legislature convenes — we don’t really have any idea what they’ll do. If the issue of who should become Speaker is as politically momentous as we’ve been led to believe, then pronouncements from all parties about what they intend to do when the house meets should be regarded with a good deal of skepticism. If, on the other hand, the issue is not as politically momentous as we’ve been led to believe, then there’s little reason to think all 43 Liberals will actually pass up the nomination.

Suppose, however, that the Liberals stand firm, a Speaker is selected from among the other two parties, and he or she proceeds to consistently break ties in partisan fashion. Two kinds of damage may result. The first, which is a dead certainty, is the immediate damage to this particular Speaker’s credibility as an impartial administrator and presiding officer of the legislature — and, by extension, to this legislature’s credibility as a procedurally fair democratic institution. The second, which is quite uncertain, is the possible long-term damage (lasting beyond this parliament) to the office of Speaker. This could include damage to the credibility and effectiveness of the Speaker as an impartial actor, or to the normative expectation that the Speaker ought to be an impartial actor.

Moscrop’s case for a new election clearly depends on at least one of these kinds of harm resulting from breaking the convention of impartiality under the current circumstances. If the harm he envisions is the long-term damage of the office of Speaker, I think he owes the reader an account of why this kind of damage should be expected. To make a successful slippery slope argument, it is not enough to stand at the top of the slope and point to the bottom; you have to actually show that the slope is in fact slippery. Every purported justification for breaking convention in this case depends on the extremely unusual particulars of our situation, which are unprecedented in the province’s history and unlikely to be repeated any time soon. Moreover, everyone offering justifications for breaking convention in this case agrees that a strong justification is needed. An impartial Speakership is very important; departures from convention should not be made lightly, and if there are any departures from convention, they must to be tightly circumscribed so as to be minimally disruptive to the Speaker’s traditional role. Given that these facts are widely accepted among those advocating a departure from convention in this case, it is not at all clear why we ought to expect any long-term damage to the office. As long as this piece of the puzzle is missing from Moscrop’s argument, his case can only depend on the urgency of avoiding immediate damage to the credibility and legitimacy of the Speakership in the incoming parliament.

How serious would this damage be? One way of assessing the damage would be to ask whether all affected parties would find the negative consequences acceptable, given the beneficial consequences. The burden of working with a partisan Speaker would fall primarily on the Liberals, and to a lesser extent the Greens (who remain in opposition despite their agreement with the NDP). The cost of avoiding the scenario where a partisan Speaker is selected is mild for the Liberals (given the size of their caucus) and very large for the Greens (who would have to sacrifice a third of their caucus and their arrangement with the NDP). The Liberals following through on their pledge not to stand for the Speakership translates into tacit consent from the party that stands to lose the most from having a partisan Speaker and have ample opportunity to avoid this scenario at the lowest cost to themselves. Under the circumstances, it seems that even the Liberals view a partisan Speaker as the best option under the circumstances.

This does not yet show that selecting a minimally partisan Speaker is preferable to an election, however. All parties in this legislature may agree that a partisan Speaker is the best of the available options, but the idea behind having a new election is to bring in a new legislature with a better set of options. Even if everyone in the new legislature could agree to a partisan Speakership, considerations of fairness and democracy favour a new election that returns a result that can command something more enthusiastic than the grudging acquiescence of the parties involved.

This strikes me as an unrealistic view of electoral democracy, however, because in an adversarial system like ours, grudging acquiescence to the distribution of power in the legislature is actually the norm. In order to avoid the same impasse after a new election and achieve a result that is preferable in the view of at least one party, at least one party would have to lose seats. The only way to make one party happier is to make another party sadder. To bring about a result that can command something more enthusiastic than that grudging acquiescence of all the parties involved, we don’t need another election, we would need an altogether different system of government (although what that would actually look like, I can’t begin to imagine).

If the case for a new election appeals to considerations of fairness and democracy, it is also reasonable to ask how fair and democratic a new election is likely to be. BC’s political finance laws are notoriously lax. Thanks to the support of rich individuals and businesses, the Liberals’ campaign fund dwarfs those of the NDP and the Greens. This puts the NDP and Greens at a serious disadvantage at the best of times; if one election follows another in close succession, the result could be devastating, while imposing greater burdens on the relatively low income constituencies on which the other parties must rely to finance their campaigns. As a theorist of deliberative democracy, Moscrop must be keenly aware that such a a result would not necessarily reflect the public’s considered judgment of the other parties’ worthiness. As the godfather of deliberative democracy, John Rawls, noted:

The liberties protected by the principle of participation lose much of their value whenever those who have greater private means are permitted to use their advantages to control the course of public debate. For eventually these inequalities will enable those better situated to exercise a larger influence over the development of legislation. In due time they are likely to acquire a preponderant weight in settling social questions, at least in regard to those matters upon which they normally agree, which is to say in regard to those things that support their favored circumstances…. What is necessary is that political parties be autonomous with respect to private demands, that is, demands not expressed in the public forum and argued for openly by reference to a conception of the public good. If society does not bear the costs of organization, and party funds need to be solicited from the more advantaged social and economic interests, the pleadings of these groups are bound to receive excessive attention. And this is all the more likely when the less favored members of society, having been effectively prevented by their lack of means from exercising their fair degree of influence, withdraw into apathy and resentment. (A Theory of Justice, Original Edition, pages 225-226)

Considering how seriously the fair and democratic character of the electoral process itself is compromised under the current political finance regime, I do not think that considerations of democracy and fairness obviously favour a new election over a temporary departure from convention.

In summary, then, to avoid committing a slippery slope fallacy, Moscrop’s argument for a new election must depend on the immediate negative consequences of a partisan speaker. However, these immediate negative consequences could only materialize if the Liberals — the party that stands to lose the most from those consequences —find them acceptable on balance and continue to refuse the Speakership. The public has certainly has good reason to be concerned about the ability of a minimally partisan Speaker to fairly administer and preside over the legislature. But given the state of political finance rules in BC, the values of fairness and good democratic practice that ground this concern should actually militate against calling a new election.

How long could Clark stay in power… in the Twilight Zone?

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Days after the Greens and NDP signed a confidence and supply agreement that seems sure to bring down the Liberal government, some progressives’ exuberance has turned to doubt. The thought seems to be something like, “Our side doesn’t really get to win, does it?” Partly to try to inoculate my friends against this kind of sentiment, and partly because there are some interesting technical details to consider, in this post I’ll take a look at the most extreme option available to the Liberals if they really want to hold on at all costs.

Although Premier Clark has declared her intention to convene the legislature this month and given every indication that she will step down in the likely event that her government is defeated on the throne speech, a number of commentators have pointed out that she would technically be within her rights to delay the final reckoning for a while longer. The real deadline is supposedly at the end of September, as this is when the money authorized by the spring supply act is expected to run out. But in fact, it is theoretically possible for the government to last well into the new year, thanks to (relatively) obscure provisions in the Financial Administration Act concerning the issue of special warrants. To be clear, I don’t think this is at all likely to happen here in the real world. But it may still prove educational to take a little trip and see how the election aftermath might unfold in the Twilight Zone.

Special warrants, drawn up by cabinet and signed by the lieutenant governor, authorize government spending in excess of the amounts authorized by the legislature. They can only be issued under certain conditions. First, the legislature must not be in session. Second, the funds must either be urgently required to respond to a natural disaster, or the legislature must be dissolved for a general election. Whereas the federal law on special warrants fixes the end of the election period at 60 days after the deadline for the return of the writs, BC’s Financial Administration Act defines the general election period as ending “90 days after the first post-election appointment of the Executive Council.”

Although there’s been a lot of talk in the media (and to some extent even from politicians) about the possibility of Clark “forming government”, the fact is that as the incumbent she has no need to form government. She did that when she became the premier several years ago, and she’s been in power continuously since then. The law regarding special warrants shows why this point is not merely of interest to pedants. Because Clark and her ministers are already in government, and there has been no post-election cabinet shuffle, the 90 day countdown to the end of the election period (for the purposes of the Financial Administration Act) has not yet begun, and it will not begin until some new ministerial appointment is made (or Clark resigns and there’s a wholesale change in government). So unless Clark decides to shuffle her cabinet some time in the near future, she will still be able to request special warrants to cover the bills when the money runs out at the end of September.

Obviously this would be a gross abuse of the right to request special warrants, which are intended only to keep the government running and able to respond to public emergencies when the legislature is not available to authorize new spending. It would be the height of paranoia to suspect that the Liberals are considering anything so far-fetched. Still, it can’t hurt to get the facts right, and you never know when those facts are going to turn out to have a lot of practical relevance. To give an obvious example, for years reporters have been rolling their eyes at people who asked them not to use terminology suggesting that governments are elected. Having misrepresented the basics of parliamentary government for so long, when the BC election returned a hung parliament they found themselves scrambling to explain the system from the ground up. So, for the record, the true outer limit on the government’s ability to stall is set by section 5 of the Charter, which requires a sitting of the legislature at least once every twelve months. That means the legislature must be convened no later than March 16, 2018.

Update on June 12, 2017: This is now a moot point, because a number of new cabinet ministers were appointed today. This begins the 90-day countdown to the expiry of the authority for issuance of special warrants.

Don’t fear the Speaker: why the Milliken Gambit won’t work

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It seem this is the election that just won’t quit. The latest thing keeping us all in suspense is the issue of electing a Speaker of the Legislative Assembly. Electing a Speaker is the first order of business for a new legislature; until this task has been completed, no other business can be conducted. If no Speaker can be elected, then, the legislature will be unable to function. This would be grounds for dissolving the legislature and calling a new election. The problem is that the Liberals will not want to put forward one of their own members and for election, because this would bump up the NDP and Greens’ razor thin majority at a time when every seat counts. And the NDP and Greens will not want to put forward one of their members for election, because this would cost them their combined majority over the Liberals. Moreover, the Speaker is, by convention, required to break ties to continue debate whenever possible, in favour of the government on matters of confidence and supply, and in favour of the status quo on all other matters. As J. D. R. Brown has pointed out, this means a Speaker elected from the Green or NDP ranks would have to support the Liberals’ throne speech and keep the government alive; Brown refers to this as “the Milliken Gambit.” If no Liberal stands for election, the NDP and Greens would have to choose between a deadlock resulting in a new election, or face the prospect of having one of their own members sustain the Liberal government in power.

From a political standpoint, I think it would be foolish for the Liberals to use this tactic to try to remain in power or force another election. And I don’t think the Liberals are foolish. If they intended to pursue this course, Premier Clark would not have signalled so strongly that we should expect a change in government following the throne speech, and no new election. I also think it’s unlikely that all 43 Liberal MLAs will be able to resist the lure of the Speaker’s office, especially now that their prospects of drawing a ministerial salary have declined so sharply. But it’s still worthwhile to consider the hypothetical, remote as it may be — especially in an election that has already been so full of surprises.

I don’t think the problem is as serious as Brown makes it out, though. Recall that conventions are non-legal rules, adjudicated and enforced by political actors (a category that includes you and me) rather than the courts. Recall also that conventions are observed for a specific purpose: to promote responsible government as a form of democratic rule. If observing a convention would subvert the purpose for which that convention was established, then one is at liberty to break with convention and argue that it ought not to apply under the circumstances. If the relevant political actors agree with this judgment, no one can be penalized for the breach of convention. And because Brown’s scenario depends on the validity of the convention that binds the Speaker to break ties on key votes in favour of the government, it’s important to ask whether the convention is in fact valid under the circumstances, given the purpose the convention is supposed to serve.

My view is that the convention is not valid under the circumstances. The office of Speaker exists to facilitate the functioning of the Legislative Assembly as a democratic lawmaking body and confidence chamber. This is also the purpose for which the convention exists. The question, then, is whether the Speaker can facilitate the functioning of the Legislative Assembly as a democratic lawmaking body and confidence chamber while observing the convention. So first, let’s consider the political context of the incoming Legislative Assembly.

Clearly a majority of incoming MLAs do not have confidence in the incumbent government. They have expressed this by signing an agreement to defeat and replace the Liberals in government, if possible. There is every reason to expect that the combined NDP and Green majority will follow through on their agreement to defeat this government if they have the opportunity to do so. Of course, it’s very important to remember that this form of expression carries no constitutional weight. Confidence can only be won or lost in the legislature. However, the agreement does carry considerable political weight.

The agreement between the two parties represents a successful compromise between officeholders from parties supported by 57 percent of voters in BC, whereas the Liberal caucus represents a failure to compromise by officeholders from a party supported by around 40 percent of voters. Again, the concept of “popular vote” does not figure in our constitution. Moreover, it would be a mistake to assume that just because around 40 percent of voters supported NDP candidates and around 17 percent of voters supported Green candidates, 57 percent of voters must support an alliance of Green and NDP MLAs. Nevertheless, it seems politically significant that MLAs from parties supported by an overwhelming majority of voters were able to come to a mutually acceptable deal, while the incumbent governing party — having lost seats, and with the narrowest plurality of seats and votes — was not. It’s also fair to say that while the concept of “popular vote” does not figure in our constitution, it is an important part of the political culture in which the constitution is embedded, and by reference to which various features of the constitution must be justified.

With this in mind, let’s return to the Milliken Gambit. To avoid dissolution before the legislature has a chance to do anything at all, the Greens and NDP are forced to elect a Speaker from their own ranks. The Speaker then follows convention and supports the Liberal government by casting a tie-breaking vote in its favour any time a matter of confidence comes up. However, he or she abstains from any vote where the government’s survival is not at stake.

So, in this case, would the Speaker’s observance of convention facilitate the functioning of the legislature as a democratic lawmaking body? Clearly not, because the legislature would be deadlocked on all ordinary legislation. In order to pass any law, the government would need the reach a compromise with at least one opposition party. But the Liberals have already failed to reach such a compromise with the Greens (that’s the only reason why the Speaker’s role has come up!), and they’re hardly more likely to reach a compromise with the NDP. So it’s reasonable to expect that the legislature will not be able to pass any ordinary legislation as long as the Liberals are in power.

Would the Speaker’s observance of convention facilitate the functioning of the legislature as a confidence chamber? Again, I think the answer is clearly no. It is beyond doubt that a majority of MLAs do not have confidence in the government. The scenario we’re considering is an attempt to prevent a majority of MLAs from expressing their want of confidence in the government. In other words, it amounts to deploying convention against the purpose for which it was instituted.

If all Liberals refuse to stand for the position of Speaker, then, there is at least a prima facie reason for a Speaker recruited from the Green or NDP caucuses to break convention and — at the very least — vote against the incumbent government’s throne speech. This would be sufficient to defeat the Milliken Gambit.

Although the choice to break convention in this case is justifiable, I think, it would not be without cost. As Phillipe Lagassé points out, for the Speaker to consistently break ties in the NDP’s favour would harm the expectations of impartiality attached to the office. It is therefore to be hoped that the Liberals choose not to put the Speaker in this position.

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.

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.