Category Archives: Human rights

People are entitled to the presumption of innocence and Judges should not be rapists or harassers

2018 Trip to Ottawa, Human rights, Law, Sexual harassment/Assault

The recent hearings in the US Senate to consider and decide whether or not Brett Kavanaugh should be confirmed as a judge on the US Supreme Court exposed some of the glaring weaknesses in the American system of judicial appointments to that nation’s highest court. Remember that judges are appointed for life and can have a profound effect on many social issues of great importance. Issues such as the right of women to an abortion, or the rights of a foetus, the rights of gays and lesbians, and countless other important issues. No doubt America should put the best people on that court.

In criminal law there is an expression, ‘better to let 10 guilty criminals off than send 1 innocent person to prison.’ That is acceptable in a criminal court.  Is that the appropriate principle to other important decisions? Not always I would suggest. No one in his or her right mind would say, ‘Better to have 10 rapists as judges than decline one innocent candidate.’

The problem of course is what should the decision makers do when the evidence is not certain or all the facts are not in? That can be difficult. Did the American Senate get it right?

What are people to do when all the evidence is not in? In a criminal court it is clear. The court cannot convict unless it is proven beyond a reasonable doubt that the accused is guilty.  If the judge or jury decides the case is not certain, a verdict of not guilty is required. That is as it should be. But what about other circumstances? What about outside the criminal court?

I think environmental law has found a workable solution.  It is called the precautionary principle. This means that decision makers should act to prevent harm when it is within our power to do so, even when all the evidence is not in. For example, if someone proposes to install a petroleum pipeline that might or might not lead to environmental contamination should the pipeline be approved or not? This principle requires that the pipeline which might cause great harm, only be approved if the persons who wants it gives reasonable credible evidence that it is safe to do so.

If it is not certain whether a particular course of action will create harm or not, as for example when the existing scientific evidence is unclear or uncertain about whether it will lead to serious harm or not, the precautionary principle imposes an obligation on the proponent of the  course of action, such as a pipeline, to prove that it will not lead to harm until further evidence makes it clear that the harm can be averted. In other words, policy makers are required to protect the public when there is a reasonably plausible possibility that a particular action will cause harm.  The decision makers can and should act to do this even it is not certain that the action will lead to harm. These protections can only be relaxed when further sound evidence makes it clear that no harm will result. The onus of proof is on the proponent to establish a lack of harm. Not the other way around.I think the American Senate ought to have been guided by such thinking in the case of Judge Kavanaugh.

In the case of the Senate hearings both the complainant Dr. Christine Blasey Ford and the proposed judge, Kavanaugh made plausible cases in support of their position. Kavanaugh came on strong and made a forceful defence against the allegations. On the other hand, Ford was clearly credible too. She made some inconsistent statements about what happened 36 years ago, but it would have been suspicious if that were not the case. I would say it was not certain beyond a reasonable doubt who was right.

The Senate appointed Judge Kavanaugh on the basis, I believe, that Dr. Ford’s  allegations were not proven. I think the Senate put the onus of proof on the wrong person. It should have said, Kavanaugh must prove he was innocent on a balance of probabilities, not on beyond a reasonable doubt.

Ford’s testimony might not have led to a conviction in a criminal trial, but it certainly was enough to reject him as a judicial candidate for a lifetime position to the highest court in the land. The public should not be required to accept a candidate as tainted as Kavanaugh, even though he might be innocent, because the public should be protected from the immense harm he might inflict on the public as a result of his lifetime appointment unless he could first prove that he was worthy.

Judge Kavanaugh was right when he called the hearing a national disgrace but not for the reasons he said so. It is a disgrace when the weighing of judicial appointments becomes a pure partisan game on both sides. It is a disgrace when an alleged sexual assault victim becomes a pawn in a political game. It is not a disgrace when an unworthy candidate is rejected for high judicial office when on a balance of probabilities, even if not beyond a reasonable doubt,  it is clear that he is wholly unsuitable for that office.

I would put it this way: If you were on the board of your local school division would you hire Brett Kavanaugh to be a janitor for the school? Not me.

Establishment of Religion

Human rights, Law, Philosophy/Ideas, religion

Recently I posted about the establishment of religion clause in the US. We don’t have such a clause in our constitution but we do have a clause guaranteeing religious freedom, which has been interpreted to include freedom from religion.

I like the English philosophers who often went by the name of liberals.  Today, liberalism is a bad word in many circles—particularly in the United States. I find it very congenial. I am not talking about the Liberal party in Canada or the Democratic Party in the US. I will leave that for another day. I am talking about small “l” liberalism.

I think the philosophy of liberalism was started in England by John Locke, who lived mainly in the second half of the 17thcentury. That’s a long time ago, but I think its important. Locke’s ideas were borne in the crucible of English politics during this time. That history had important effects on liberalism. And it is important today, though too often forgotten.

The Reformation and the problem of religious minorities was central to Locke’s political philosophy because those were the burning issues (literally burning issues) of his times. By the 1680s there was clear political unrest in England. Until then this was not an issue all values were shared because everyone in Europe was a Roman Catholic. Until then the issue of minority rights did not arise for there were no minorities. After that political theorists had to figure out how can we live in a society together when we don’t all share the same values? We are still trying to solve that problem.

The religious wars of the 17thcentury were incredibly bloody and Locke and the liberals did not want to see them repeated. In the 21stcentury we should be no less vigilant.

2 years ago, Chris and I attended a lecture at the University of Manitoba by Professor Steve Lecce. I have often thought of what he said. He said, that the key question of modern and contemporary political theory is, according to Lecce, “How should we live together in society when we don’t all share the same values?”

According to traditional liberals, the state is not an instrument for pursuing common goals, but rather an institution that allows each of us to pursue our own personal goals while living in society with those who have different objectives. Where values diverge, as they now inevitably do in any post Reformation society and in particular in modern societies that include immigrants from around the world, how can we live together in peace and harmony without resorting to might is right or without resorting to the ability of the majority to dominate? Liberals say that there are some things the majority or the powerful should not be able to do. Instead we will have a method of settling disputes fairly. The state in such circumstances has to be like a referee or umpire. That is why the state must remain neutral between religions for example. It should not assist one religious group to establish its religion over others.

This was very important in the Reformation when religious freedom was the critical issue of the time. It is still important. It is particularly important in places like Steinbach where religion is very important. The Reformation splintered the dominant religion and cleared the way for new problems that were irrelevant before then when everyone agreed.

Until the Reformation a common religion bound us all so that this was not an important issue. Religion until then was the social glue that kept us together. After the Reformation, religion became an explosive issue that could blast society apart. And it often did. It still often does that. Before the Reformation religion was the basis of societal trust.  After the Reformation religion became an instrument of distrust. We still live in this post-Reformation world.

There were 2 possible solutions to this problem of religion after the Reformation:

 

  • A religion can be imposed by force or power to achieve religious unity. This was tried with great vigor in the religious wars of the 17th The result was great misery and abject failure. John Locke developed his philosophy just after those wars which were burned into his memory. Unfortunately, now many of those memories are vague or forgotten.
  • The second possible solution is the radical idea proposed by liberals like John Locke–toleration. That had never been tried before. It was truly deeply revolutionary. It is important to remember this when modern liberals are often seen as dull and boring theoreticians. In the 18thcentury this idea was profoundly revolutionary. Many hated the idea of tolerance because they saw it as capitulation to evil.  Liberals said we had to accept differences.

 

Nowadays toleration, a value that was revolutionary in its day, and I would submit, is revolutionary today, can seem like very thin gruel compared to the spicy virtues reflected by much more aggressive and powerful advocates like ISIS, Boko Haram, Donald Trump, and their ilk. It can seem wishy-washy just like–well—liberals. The liberals stand for permitting others to have their say. This is much less sexy than threatening to ban them, or build a wall to keep them out, or kill them. However, in a world charged with the most vicious of religious hatreds like that of Europe in the 17thcentury or our current world in the 21stcentury, tolerance is not wishy-washy at all. After all the 17thand 20thcenturies were the two most violent centuries in the past 500 years according to Steven Pinker. [2]Tolerance is the most vital of all the virtues! Liberals should step to the plate with vigor and confidence. Liberals actually represent our best chance for civilization to endure.  At least so liberals believe.  At least so I believe.

In the 17thcentury there were those who feared the worst from this revolutionary new idea of tolerance.  Would this not lead to the destruction of public morality?  Personal morality should never be permitted to undermine public morality, it was widely believed. This in fact is the essence of Conservatism! It is stillthe essence of conservatism.

It is still vitally important in a community like Steinbach today as I write.         Recently, our little community has been challenged by a young Lesbian couple who wanted the schools in our area to teach about all families and not ignore the diverse kinds of families like theirs. They want respect. They do not demand acceptance, but they want to be recognized. Many in my community–the modern conservatives–believe sincerely that this can lead to the disintegration of the modern family and with it our cherished western society. The conservatives don’t want to tolerate the lesbians. They feel that this will lead inevitably to the disintegration of all that they hold dear. This is classic conservatism.

Liberals challenge this view. Liberals hold that we can each freely have our own personal opinions and morality without challenging the social order or value of society. Let people disagree. We can all get along provided each of us accepts limits. We must tolerate each other even when we believe others are wrong. This will not destroy society. In fact modern liberals, like Justin Trudeau, believe that the diversity of modern society will strengthennot weaken society.

That means that we must put reasonable limits on our religious values too. We can hold them personally as much as we want, as vigorously as we want, but we cannot impose those values on others. The social value of imposing religious values was rightly discredited after the religious wars of the 17th century. We don’t want to go back there. That is why we in Steinbach must accept same sex marriage as a permitted alternative life style that must be respected, even it is not accepted. This respect will not destroy society it will strengthen it. To live in society we must respect others even when we disagree with them. That is why traditional liberals say that no religion should be established by the state. Everyone should be absolutely free to choose whatever religion they want, including no religion at all. Then we might be able to live together even when we have fundamental disagreements. If we learn tolerance we have a chance of living together. If we don’t we stand no chance.

Many people on the religious right today seem quite willing to permit a religion to become established by the state, provided of course it is their religion. Mennonites at one made a similar principle at the heart of their own position about religion and politics. They knew from profound personal experience how an established religion, such as the Catholic religion in their case, could be used against them to try to beat down their rights to practice their own religion. Nowadays, too many of Mennonites have forgotten this important lesson as they try to impose their own religious views on others. This is what they have done in Steinbach.

A good friend of mine said I must be “even-handed”. I agree. He suggested I had not considered those who advocate imposing Sharia law on us here in the west. Actually I have never encountered that, but if it happened here I would denounce it just as strongly. Muslims too must learn the benefits of tolerance. All of us must.