Friday, July 30, 2004

New Game of Law Without Morality or Philosophy

Our Ottawa office sent out a notice indicating that a recent National Post Editorial had adopted our argument on "civil unions". Well. You would have thought we had advocated the ritual murder and consumption of infants! We received a host of emails, many positive but a few that were angry with us.

Most interesting were those that indicated that our position on "civil unions" was somehow weakening a strategy that "pro-family" groups were advocating. This was news.

One of the defining features of the contemporary discussions about "same-sex marriage" is that those who oppose the State adopting "same-sex marriage" have no realistic strategy. They believe that male/female marriage is the only good model on which to base society. They are not having much success in convincing the powers that be of this.

Of course, they have argued before the courts that children need two parents - - one of each sex, but the courts have not been convinced. Neither have the courts been convinced that reproduction (necessitating a male and a female) can be considered central to marriage. So much for the courts.

Before some politicians, however, the argument has been even more fruitless. These politicians, you see, like to hide behind judges on any issue that requires a moral or philosophical analysis. "I am a great respecter of the Charter," says Mr. Worldly Wiseman, "and the Judges tell us thus and so..."

The courts, for their part, also dislike moral and philosophical issues unless, that is, they can deal with them (the moral and philosophical dimensions) under the cover of "equality" which means focusing, not on philosophy per se, but on "feelings" or "historic disadvantage" etc. which can all be measured, supposedly, by affidavits, facts and figures without the necessity of determining between competing conceptions of the right and the true.

In other words, both politics and law are now thoroughly morally phobic and it is up to the courts to smuggle philosophy into "equality" so that politicians can smuggle politics into their slavish obeisance to law. That is how the new game of governing is played.

Back to the strategy of those who have to deal with this new world of politics and law. Faced with judges and politicians who will go along with same-sex marriage because they are not convinced that the arguments in favour of heterosexual marriage make a strong case, the pro-heterosexual marriage lobby thinks that making the same arguments again and again will somehow succeed.

It is as if, having bashed their heads fruitlessly against a wall for one hour, an extension of a further hour is viewed as an opportunity for yet more head bashing. Not the most fruitful way in which to use ones' time.

A new strategy is called for. One based upon the realities of contemporary law and politics. That is what we at the Centre are pursuing; a strategy that does not fantasize about what we wish contemporary politics and law were like but that is based on what they have proven themselves over and over again to actually be like.

Faced with the reality of imperfection and lack of vision, we seek to urge for a better way to see society in light of the strange views of law and politics that are currently on offer.

We are not "turncoats" against some better vision. On the contrary, there is no better vision realistically on offer. There is no "past glory" to be reclaimed realistically. The brave new world of contemporary law and politics needs to be trimmed in the direction of a genuine respect for diversity against a cookie-cutter vision that would see religious conceptions pressed into a sieve until its distinctives are bled out of them.

What really must be maintained is the maximum scope for religious diversity and expression because it is there- - in that elemental conception of freedom in relation to goodness, that loving productive marriage between a man and a woman can be best described.

That is what the current debates are all about and why only a "civil unions" approach will protect religions over time.

The law is the law of course and we should all respect and be grateful for constitutional rights. What is worrying, as so many have noted, is when judges and lawyers (and politicians) come to view law as the means of social development.

The judiciary is not meant to be a kind of social sciences laboratory with judges who seem on occasion to be like Gary Larson cartoon figures in white lab coats waving gavels. No, judging is about that narrow role in society that works within what the Charter of Rights and Freedoms, in its Preamble, calls "the rule of law."

That is maintained, that rule of law, by a careful balance between the legislative and the judicial arms. It is the replacement of the rule of law by a kind of judicial ad hoc-ery that is worrying to those of us with a sense of history that began before 1982 (or, 1985 if we are dealing with the Equality Provisions where most of the ad hoc-ery has found a happy home).

When law becomes politics and judges become non-elected politicians who determine what is going to happen to society, then it is time for citizens to put up a series of large "closed" signs on the front doors of the Parliament Buildings and Legislatures of the land.

Iain T. Benson ©