Monday, April 12, 2004

Consensus With a Vengeance

We at the Centre have many times over the years commented upon the danger of hiding coercion under the honeyed words of the day. Recently, a speech by Chief Justice Roy McMurtry of Ontario to the Saskatchewan Bar Association gave further helpful evidence to those of us who believe that many judges have been led astray and that the language some of them now use give insights into the wrong theories.

According to an article in the Regina Leader Post (February 6th, 2004, page B2) The Chief Justice stated that the Courts must be “crusaders for a new consensus” when people don’t support “fundamental values” represented by the Constitution.

Somehow it seems that judges have been allowed and even encouraged to use old words with new meanings. Now we need to add “consensus” to the list of terms that have been recrafted to mean other than what most people would mean by the term.

The term “consensus”, as most good dictionaries tell us, means “agreement” and is related to the Latin root for the word “consent.”

When the court is, as the Ontario Chief Justice tells us that court is, a “crusader” for a “new consensus” it does not mean, as the term suggests, that it is finding what people will agree with. Oh no. It is telling them what they must agree with. That is rather different.

It is as if, when two people, one a vegetarian and another a carnivore, disagree about what they should eat for dinner, a judge tells them both that they must eat meat and that, moreover, this result is a consensus and not, as it seems to most, a coercion.

Some of the judges are now saying what amounts to this: “the fundamental values that under gird our common life together require the law (meaning the judges) to advance the eating of meat over those who do not agree with meat eating” and that, “in future, those who continue to wish they were not eating meat must just realize that in the crusade to further carnivorous behaviour a new consensus must govern.”

This is what is happening with law. Rather than seeking genuine consensus, a particular outcome is being forced by law. With real consensus there is an opportunity for two contending sides (who will not usually not agree given their different starting points) to decide, for the sake of cooperative living etc., to concede aspects of their position so as to compromise (where such is possible) so that a consensus can be hammered out. This is the kind of “give and take” that used to occur in democracies all the time and would be crafted by legislation and amended legislation as the representative bodies sought to see what would work in society.

One example of this was the “consensus” that religious dogma was not appropriate in public education.

But that was before the concept of judicial crusaders for a “new consensus” began seeing the law as a blank cheque for the judicial will. Now we unenlightened people must just wait to determine how the judges are going to enlighten us and what they decide is good for society will be our new “consensus.” Comforting isn’t it?

However, where neither side concedes but one side is deemed the winner of a legal claim and the other is forced by law to “accept” what they do not believe, we do not, whatever the judges and their supporters may claim, have a consensus, we have just used law coercively to determine what view prevails whether or not people are in agreement with it. But should not the law be more attentive to the valid scope for divergent viewpoints in society? Perhaps that would be insufficiently “crusader” like for the new crusaders?

Forced “consensus” is no consensus and the sooner the judges realize this the better. As we have said elsewhere, some liberal theorists at the moment are beginning to realize that a “convergence model” that anticipates we will all move to agreement on certain matters, is actually not liberal at all (see Centrepoints #10 and the discussion of the work of English philosopher John Gray).

There are matters about which we will not agree and on those we had better figure out how people with divergent viewpoints can co-exist in a free and democratic society, not give the hammer hand to one group over another with the court claiming that a “consensus” is what has been arrived at.

Chief Justice McMurtry, and those judges and academics who support his idea of the rule by law need a better dictionary and a better theory of law than the false concept of “consensus” they are using now.

Iain T. Benson©