A very significant and striking exchange occurred between Chief Justice McLachlin and University of Chicago theologian and philosopher Jean Bethke Elshtain during the October 2002 Conference "Pluralism, Religion and Public Policy."
Chief Justice of Canada
That exchange is reproduced in the volume entitled Recognizing Religion in a Secular Society that emerged from the joint Centre-McGill Faculty of Religious Studies conference (copies of the book can be ordered from the Centre office. See also a book review on page 6).
What was central to this exchange was a statement by the Chief Justice which expressed her understanding of the role of law in relation to the role of religion. The Chief Justice stated that the relationship between law and religion is a "a clash of commitments."1 She stated that there is "a tension between the rule of law and the claims of religion" and this tension is "a dialectic of normative commitments." The authority of each, she stated, "is internally unassailable" and both law and religion "lay some claim to the whole of human experience" (emphasis added).
She then asked: "to which system should the subject adhere? How can the rule of law accommodate a worldview and ethos that asserts it own superior authority and unbounded scope?" To which she responded: "[T]here seems to be no way to reconcile this clash; yet those clashes do occur in a society dedicated to protecting religion, and a liberal state must find some way of reconciling these competing commitments..." Whose job is it to reconcile these commitments? "[It] is the court's role to manage this dialectic," she said. "[The] courts struggle to oversee those points in public life where there is a clash between religious conscience and society's values as manifested in the rule of law."
In her response, Elshtain pinpoints the heart of the Chief Justice's position. Elshtain says that the question of the relationship between law and religion:
looks a bit different if one abstains from a strong version of comprehensive claims for the law. Surely, where the rule of law in the West is concerned, there is a great deal about which the law is simply silent: the "King's writ" does not extend to every nook and cranny. Indeed, a great deal of self-governing autonomy and authority is not only permitted but is necessary to a pluralistic, constitutional order characterized by limited government. In other words, the law need not be defined as total and comprehensive in the way the Right Honourable Chief Justice claims.2
Jean Bethke Elshtain
Elshtain notes that the Chief Justice also characterizes the claims of religion as "comprehensive." According to Elshtain, neither system should be regarded as comprehensive, because they are essentially complementary and not competing systems. She states that:
in the formation of Western culture and politics there was that fateful moment when Jesus of Nazareth examined a coin: "Render unto Caesar what is Caesar's; unto God what is God's" [Matthew 22:21]. Over time, this evolved into a strong view of the relative autonomy of the governmental order, for it, too, is mandated by God and it, too, makes legitimate claims on us.3
Elshtain concludes her response by noting that both religion and law can over-reach their proper roles and that "Law is enjoined to recognize the space that [religious] faith occupies." For Elshtain then, but not for the Chief Justice, law and religion are not only not in conflict per se but are also enjoined to recognize the proper scope of their own respective endeavors so that each can do its proper job.
The Chief Justice has come to see law as "comprehensive" in a way that, I would suggest, is without precedent since Church and State were understood as properly separate.4 To view law as "comprehensive," as does the Chief Justice, and in competition with religion is a particular temptation for those who have come to view religion as less relevant and law as more important than it should be. The rule of law ought to further justice for all citizens and therefore must be recognized as limited in its scope.
Lessons from Religious History: Jurocracy (Rule by Judges) Needs to Learn to Separate Law and State
History shows us that religion has had to wrestle with the temptation to dogmatize on all aspects of society. It has had to learn to shift from a more theocratic model of society to a more democratic one. This shift from theocracy to democracy is instructive.
To view law as "comprehensive" and in direct competition with the commitments of religion is to place the rule of judges above that of all else in those areas where the law comes in contact with religious commitments. This jurocracy in our time is comparable to the historic temptation of religion towards theocracy. And just as religion had to learn not to dogmatize, so too must judges learn not to dogmatize. The same lesson about the necessary limits of its own jurisdiction needs to be learnt lest it, like religion in former days, act against necessary human freedoms. We need to move away from jurocracy to a healthy conception of democracy, for democracy cannot exist without a limited role of law.
Stated another way: Just as religion learned the proper understanding of the separation of Church and State, so too must judges learn the proper understanding of the separation of Law and State. Not that the state functions without reference to what is properly legal, but the law must not encroach on those aspects of the state (and society) that are properly outside of the purview of the rule of law or that, within the rule of law, are properly left to the legislature and the various processes of democracy, lest law become totalitarian.
The totalitarian temptation to make a better world by force of power and law is ever with us. It is a temptation for the state, the church and the law. Without a proper understanding of human nature (and such can only be given by religion, since liberalism contains no conception of human sinfulness), each of these institutions can commit grave injustice.
What complicates the fact of the law's current domination is its own history in which this more expansive role "like religion" was expressly rejected. This rejection can still be seen all through the case law and by the Supreme Court of Canada as recently as the late 1980's. It is simply untrue to state that the Charter ushered in a New Regime that altered the relationship between law and the state.
The totalitarian temptation to make a better world by force of power and law is ever with us. It is a temptation for the state, the church and the law.
What is happening in our time, therefore, is a shift in the role of law which masks the philosophical, theological and legal shifts about the rule of law. In these shifts, essentially moral and theological language is restated with terminology that masks the essentially moral and theological nature of what is at issue. What could be more theological than the Caesar's claim to divinity and absolute obeisance? It is worth noting that the only serious resistance to the imperial cult came from two monotheistic religions, Judaism and Christianity.
This new legal movement uses the language of "equality" and "dignity" (the first of which is within the constitution itself) to effect ends that are well beyond the usual judicial role. In this new juggernaut of forced consensus, what is really at issue is the power of judges to force their own personal moral and theological beliefs upon society. Under the guise of "legal interpretation," the "new theologians," believing law is comprehensive, promulgate the dogmatic rules of the day. The irony that this is done for the sake of "equality" cannot be missed.
The Jurisdiction of Law in Relation to Morals and Metaphysics
For the entire history of the West until relatively recently, it was understood that guidance in matters of morality and metaphysics was the province of religion and philosophy, but not law. There were very good reasons for this. For example, lawyers are not specially trained in philosophy, theology, or morals. And in contemporary societies a wide diversity of religious beliefs must be accommodated by, and within, the laws.
Near the beginning of the Charter-era, at a Charter Conference at the University of British Columbia in 1985, Justice Willard Estey of the Supreme Court of Canada stated, "you are looking to us judges to answer questions under the Charter of Rights and Freedoms [with which] we have never been trained to deal."
The relationship between philosophy and theology was that of a handmaiden (philosophy) to "the queen of th the sciences" (theology). In the 19 c. John Henry Cardinal Newman observed that where theology ceases to be a subject that everyone had to study in University, other disciplines will attempt to fill the gap. For a very long time now, theology is no longer taught at Universities as a required course of study and, as predicted, other disciplines are attempting to "fill in." The judicial usurpation of democracy is just a forerunner to the judicial usurpation of other matters moral, philosophical and theological. In such a setting Lex Rex takes on a whole new meaning.
George Grant, the Canadian philosopher, once noted that "when society puts power in the hands of judges, they had better be educated."5 In the footnote to this quotation he added, "the more contemporary judges quote philosophy or religious tradition, the less they appear to understand what they are dealing with."6
As long as judges recognize their own limitations, their own proper jurisdiction, they can be informed by the various disciplines with which the rule of law comes in contact. The minute, however, that judges deem themselves capable of replacing morals, philosophy, or religion, making their own wills the measure, then they have exceeded their proper role in a democracy. As recent decisions and the Chief Justice's McGill paper show, such an extension is now well under way in Canada.
To the new judges, hubristically embarking on "making Canada a better place" by force of law, the words of English Chief Justice Cockburn should be an antidote: "a Judge cannot set himself above the law which he has to administer, or make or mould it to suit the exigencies of a particular occasion."7 Setting oneself above the law is precisely what the post-Charter jurisprudence has come to see as acceptable. The lie is that this over-reaching is mandated. Nothing could be further from the truth.
Dozens of quotations like that of Chief Justice Cockburn could be adduced from judges who are better educated than the current judiciary,8 because they understood that for law to be justice, a certain judicial restraint was essential to democracy.
We see occasional restraint in some post-Charter cases but the decision-making seems more political than principled. Where the judges do not wish to make a decision (for example, as to whether an unborn human being is a "person" that should be granted the protection of the law), then they resort to the principle of, let us call it, "apparent legal restraint." It is only apparent, because the restraint was not based upon recognition of a necessary limitation within law itself. Let us look at an example.
Tremblay v. Daigle (1989) dealt with the question of whether a viable foetus should be protected under the Quebec Charter, which provided that "everyone has the right to life."9 Ms. Daigle wanted to have an abortion and her boyfriend obtained an injunction to stop her. On appeal to the Supreme Court of Canada, the judges unanimously supported the following proposition: "decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature."10 They overturned the trial and appeal judges. But should all moral decisions be left to the legislature? And even if this were possible, which it is not, what rules should apply when the courts look to the application of a moral theory in making their judgments?
This is very basic stuff. It is somewhat surprising to have to point out that the court has failed completely to make any attempt to deal with this kind of question in relation to its role under the Charter of Rights and Freedoms. It wants, in short, to have Caesar's role which it claims is given by the Charter, but then refuses to define exactly what the scope of that role is.
With respect to the question of "same-sex marriage," the court simply could not deal with it at all (once it took jurisdiction) without getting into the "broad social, political, moral and economic choices." The Tremblay decision said that these choices were best left to the legislatures. However, in our current utopian phase, when the Court is exercising its powers to force a "consensus" and "lead" us all to an agreement they believe will be the best for all of us, the judges simply take control of the issue.
This attitude is found in their own words. In the language of Ontario Chief Justice McMurtry, the court's role is to "forg[e] a new social consensus," or in the words of the newest Justice of the Supreme Court, Rosalie Abella, they are pushing "the juggernaut of rights." In fact, we are seeing a contempt for the processes of democracy. The fact of the matter is that sometimes things move slower, or not at all, in the direction that the judges might wish.
How is it that the judges have come to deem themselves able to deal with the metaphysics of marriage (with no legislation in place), but not of the status of the unborn (in an equally vague legislative framework)? Isn't it merely a question of the politics of the day? If so, what has happened to the Court's role as the bastion of, as the Charter puts it in Section 1, the "rule of law in a free and democratic society?"
No coherent theory of why some major issues (like the question of protection of the unborn) are not properly to be answered by the judges and others (such as whether same-sex couples should marry or whether there is a right to assisted-suicide) are for the courts to answer. Surely something so fundamental as rights and freedoms ought to be governed by more than judicial whim.
What is needed in Canada is a clear recognition by judges that law is necessarily going to be dealing with moral, philosophical and religious conceptions in making its decisions. If it is insecure in articulating these premises, then this is an indication that, perhaps, in those areas, the Court is dealing with a subject that is simply beyond its competence and beyond the role of law to decide the matter. Perhaps it is within its role to try to get the legislature to address the matter, but the current game of "hot potato" is massively irresponsible. It subjects questions of justice to political drift and passivity, and consequently it invites, and even encourages, judicial over-reach.
The courts also need to pay more attention to the role of religions in society, especially in terms of where notions like "the dignity of the human person" get their grounding and on-going support. There are limits. For example, how can there be a meaningful conception of "human dignity" (as in intrinsic excellence) if human beings are simply genes in competition in a purposeless universe?
The current attempt to expand law's scope to that of religion is dangerous to religion, law and democracy. Chief Justice Beverly McLachlin's frank admission that she sees law as "comprehensive" like religion, ought to give you a clear sense of where, at the moment, Canadian law is going and why in the long run this sort of approach to law poses a serious threat to justice in a democratic society.
- Religion Within the Secular (Montreal: McGill Queens,, 2004) at 21-22.
- Ibid., 36 (emphasis added)
- Using the phrase "separation of Church and State" as has been commented elsewhere in Centre publications does not mean that there is a necessary separation of religion from culture. The state and religious believers and their organizations can and should co-operate. The doctrine of "separation" ought not to be seen as a blueprint for religious exclusion in the manner of the secularists and secularism itself.
- George Grant "The Triumph of the Will" in Ian Gentles, ed., A Time to Choose Life (Toronto: Stoddart, 1990), 18
- Ibid, 213
- Martin v. Mackonochie (1878), L.R. 3 Q.B. 775.
- This is not a criticism of contemporary judges so much as it is a wholesale condemnation of general schooling over the past hundred years. Most "educated" elites today would have difficulty passing a scholarship examination set for eleven year th olds applying to a good high school in early 20 century England. Should anyone doubt this claim, they are invited to consult just such an examination for 11 year olds applying in 1898 to King Edward's School in Birmingham; see: "Dumbing down: the proof " in The Spectator (November 27, 2004), 20, 21. Further evidence in a specifically Canadian context is Hilda Neatby's So Little for the Mind (Toronto: Clark Irwin, 1953).
- Tremblay v. Daigle (1989), 62 D.L.R. (4 ), 634
- Ibid. 650
Benson, Iain T. The Idolatry of Law: When Law is Seen as 'Like Religion'. Centre Points 12 (Winter, 2004-2005): 1-4.
Reprinted with permission of The Centre for Cultural Renewal and Iain T. Benson.
Order Recognizing Religion in a Secular Society here.
The Centre for Cultural Renewal is an independent, not-for-profit, charitable organization that helps Canadians and their leaders shape a vision of civil society. To this end, we focus on the important and often complex connections between public policy, culture, moral discourse and religious belief, and produce discussion papers, forums and lectures on key issues affecting Canadian society, public policy and culture. Iain Benson, a constitutional lawyer, is the Centres Executive Director.
Iain Tyrrell Benson is a legal philosopher, writer, professor and practising legal consultant. The main focus of his work in relation to law and society has been to examine some of the various meanings that underlie terms of common but confused usage. An advocate that the public sphere should be open and inclusive of all citizens and their groups, whether their faith and belief commitments are based on non-religious or religious beliefs, Iain Benson was the first Executive Director of the Centre for Cultural Renewal, a non-partisan, non-denominational charitable foundation with status in both Canada and the United States, dedicated to examining the nature of pluralism with particular reference to the associational rights dimension of religion and expression.Copyright © 2005 Centre for Cultural Renewal
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