Anniversary of Charter

The Globe and Mail is running a Charter of Rights 25th anniversary series. And Monday’s article was a very interesting piece on the Supreme Court’s tendency to show more deference to Parliament and the legislatures when fiscal consequences that impact the public purse are at stake.


Is such deference good or bad? I think that is an excellent question, one that cuts across standard “left/right” ideological lines. I myself think such deference is a good thing. And as I am just reading the final proofs for my new book where I argue in favour of such deference, I feel compelled to offer some thoughts here on why I believe this development is a healthy one for Canadian democracy.

Since the publication of John Rawls’s A Theory of Justice in 1971, philosophical debates about distributive justice have been dominated by “rights-oriented” accounts of social justice. Rawls was critical of utilitarianism because it was a moral theory that did not accord sufficient weight to the protection of the basic liberties of all citizens. Justice, argued Rawls, denies that the loss of freedom for some is made right by a greater good shared by others. And so a generation of liberal political philosophers championed the idea that rights are inviolable. The list of rights to be protected grew and grew, and at the same time an appreciation of the importance of democratic practices and institutions shrunk smaller and smaller.

In the 35 years since A Theory of Justice there has been an explosion of “rights-talk” as various laudable aspirations have been couched in the language of rights– these range from rights to healthcare, education, decent housing, minimum income, safe working conditions, minority rights, animal rights, the right to be loved, etc., etc., etc. Many of these causes are causes I myself am very passionate about and believe should receive greater attention and public support. However, I think it is a mistake to couch all such aspirations in the language of rights-talk. Or, perhaps more accurately, the mistake is to fail to see how limited (and potentially impoverished) the rights discourse often is.

The problems with the rights discourse are many-fold. Firstly, while saying that X is a right conveys the sensible point that X should be taken seriously, it does not tell us how important X is relative to other pressing aims that compete for finite public resources. So the rights discourse is typically a cost-blind discourse, one that ignores the reality that tradeoffs must be made.

Unfortunately many who invoke the rights discourse take the view that rights are absolute, that they cannot be compromised (that is what it means to say that X is a “right”!). But this then leads us to the state-of-affairs where the proponents of these laudable causes jump from the well-founded claim that “X is important” to the problematic prescription that “X is a right and should be enforced by the Courts”. And so judicial activism is then championed as a (perhaps the) major instrument for promoting social change and upholding justice. This is most evident in proposals to entrench social rights (like a right to decent housing, healthcare, etc.,) in the Constitution. Such proposals, while well-intended, are, I believe, ill conceived.

I agree that the judiciary has an important role to play in terms of ensuring that a reasonable balance is struck between constitutional principles and public policies. But when it comes to decisions that have significant budgetary implications, I think judicial deference is warranted. Such humility shows respect for the important challenges which executives and legislatures face. In particular, the complex challenge of determining how finite public resources should be distributed.

The reality is that legally enforcing any right, whether it be a so-called “negative” or “positive” right, will have costs. If we pump greater amounts of public money into promoting causes X and Y then we must divert funds from somewhere else (and/or raise more revenue). An excellent book on this issue is Holmes and Sunstein’s The Cost of Rights.

It is imperative that we recognise the budgetary implications of rights protection. Once we consider the budgetary implications of legally enforcing rights we realise that all rights are in fact positive rights. Thus we cannot ignore the fiscal realities of rights protection. So one of the central prescriptions of the version of liberalism I defend, what I call “civic liberalism”, is that we need to take a purposeful and fiscally responsive approach to rights.

Once we commit ourselves to taking a fiscally responsive approach to rights we realise that the really important question is not: Can we characterise X as an interest worthy of being called “a right”? Rather, the real important and difficult questions are: where does X figure in the larger picture of the pressing demands we have to take seriously? How vigorously, and at what cost, should we pursue the promotion of X? And who is best placed to make these decisions?

Once we ask this latter question we realise that legislatures and executives, rather than the judiciary, are much better placed to answer these questions. Why? The answer lies in the details of the kind of deliberative bodies these different branches of government are. Unlike politically insulated and unaccountable judges, legislatures and executives are better placed to get an accurate sense of the “big picture” of the competing claims that arise at any given time because they are elected and accountable to the public. Furthermore, our institutional system is such that, in terms of the scale and scope of these institutions, the judiciary only sees a small sample of the pressing issues that arise at any given time and simply lacks the capacity to do the job entrusted to executives and legislatures. So we need to recognise how complex and enormous the task of determining what constitutes a reasonable trade off between the laudable aims that compete for finite public resources really is. And how poorly equipped the judicial branch of government is to tackle these challenges.

Critics of democracy of course see democracy as a dangerous force that must be limited and contained for fear of “tyranny of the majority”. I agree that democracy has potential dangers, and that appropriate checks and balances must be put in place. And judicial review is an important part of this process. So I champion the “dialogical model” of judicial review, a model that prescribes we strive for the mean between judicial and legislative supremacy.

The best form of government is (hands down) liberal democracy. There really are no other serious contenders in play. But much work still needs to be done and the political philosopher can help us fine-tune what this ideal is. A liberal polity that takes a fiscally responsive approach to rights protection is, I believe, a more healthy polity because it gives due respect to the democratic process and democratic lawmaking. No doubt the critic will feel uneasy about placing the fate of rights in the hands of the demos. But I think John Stuart Mill was way ahead of his time (as he was with many other things) when he insightfully noted, almost 150 years ago, that if you let a person have nothing to do for their country, they will not care for it (Representative Government). Lasting and meaningful societal change only occurs when we, the people, remain committed and determined to make these changes. Unfortunately the advocates of liberal democracy often forget the importance of the democratic component of liberal democracy. But it is encouraging to see that Canadian Supreme Court Justices are savvy enough to appreciate the important stakes involved in these issues.

Cheers,
Colin