The law is reshaping the moral landscape of Canada (and the United States) and the sooner judges admit this and citizens recognize it the better.
Iain T. Benson
The law is reshaping the moral landscape of Canada and the sooner judges admit this and citizens recognize it the better. Child pornography, the role and place of religion, the limits of life and death and mercy-killing are all before the high courts at the moment and, for a variety of reasons, what the courts say will influence the way we live together as Canadians.
The determination of how far a right does or does not extend is a moral determination and in case after case while saying they are not philosophers and that it is not the courts' role to embark on philosophical analysis, the judges have had to make philosophical determinations and analyze the statements of philosophers while doing so. Why then the extreme reluctance to admit it? Or, again, to take another sector of Canadian society, consider how frequently politicians leave important issues to the litigation process rather than take the initiative to do the work that is necessary. It is all rather like one large game of moral hot-potato where no one wants to deal with the difficult moral and philosophical questions that face us today.
I think the reason for this wide-spread moral phobia is that, about half a century ago, education in every discipline began to focus on techniques while losing sight of the purposes each discipline is meant to serve.
But questions of process are no substitute for moral questions. Following the introduction of the Charter of Rights and Freedoms in 1982 we have seen the proliferation of rights claims and the courts making fundamental determinations in area after area of life. Rights claims are everywhere. But what happened to any discussion of what freedom might mean for persons and society and how rights must be related to duties and obligations in order for freedom itself to have meaning? Multiculturalism and proper tolerance or pluralism are not offended by discussing freedom, purpose and obligations despite what some people seem to suggest.
Every world religion, for example, sees truth, freedom and obligation as important in some way to purpose, enlightenment or salvation. If a child is not taught about duties and obligations as a restriction on freedom then why do we complain when they act selfishly or without regard to others in exercising a false freedom?
The way Canadian society (including the courts) is dealing with freedom and rights is insufficient. Public education curriculum and judges in their Reasons fear discussing what things are good and bad, or right and wrong and what the obligations of citizenship are both publicly and privately. Who can blame them? The kind of education that did discuss a common ground for moral citizenship and the reasons for this was abandoned long ago and teachers and judges, like all of us, are struggling in the vacuum created by schooling based on values and an understanding of rights without duties and moral virtue.
When religion was banished from public education in the name of tolerance and pluralism nothing replaced it but a weakening of discussion about meaning and the purposes of human life. Discussions about truth and love, obligations and duties were gradually reduced to vague platitudes about values feelings tolerance and rights. Canada cannot survive with the confusion of what the judges have, on occasion, referred to as Charter values.
Without any meaningful context for rights or discussions about how we should determine what we need to be tolerant and intolerant about, what happens socially is that power dominates principle. When rights alone are the focus and human beings are viewed as isolated rights bearers free of any over-arching moral obligations to the community, obligations and duties weaken and society is fragmented further.
So in the modern period education about morals and virtue (hitherto largely done through religious education) has virtually disappeared. Individualism and relativism became the triumphant theories in this new world and rights their sword. This is our dilemma.
Reality, however, refuses to let a society and its disciplines such as law, medicine, education and politics, play ostrich for too long. We are, sooner or later, forced to deal with the purpose questions of citizenship. How ought we to live together? What are our aims as Canadians?
If we want to have a thriving country for the next millennium, we shall have to begin to discuss, in every area of our common life as Canadians, what we believe in and why. The courts and the law schools that feed them must get beyond viewing rights and individualism as a satisfactory basis for courts to determine what freedom means.
For Commentary this is Iain Benson in Vancouver.
Iain T. Benson Can We Have Rights Without Duties?: The Dilemma the Courts Face Broadcast Nationally on CBC Radio, (January 21, 2000).
Permission to republish granted by Iain T. Benson and the Centre for Cultural Renewal.
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 © 2000 Centre for Cultural Renewal
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