Category: Law

Posts about law-making, the courts, and legal concepts in general

Daniel Carpenter and Andrew Delbanco on abolitionism

Delbanco’s essay considers abolitionism as a general category of political vision, one impelled by “imprecatory prophets” whose contribution is, in part, to envision what their contemporaries regarded as “preposterous” and to make it seem possible. Abolitionists render a moral case against the existence and endurance of or or more of a society’s perceived wrongs, such as slavery and racial castes. And perhaps others: alcohol, or gender discrimination, or abortion, or the hierarchy of heterosexuality over gay and lesbian lives. The abolitionist then and now requires moral clarity in the form of a sharp division between good and evil in which the viewer and reader can tell the two apart. Abolitionism also requires a refusal to settle for half-measures; it paints these compromises themselves as part of the problem, as resting firmly on one side of the binary divide. And, not least, abolitionism must conjure a world without the evil institution whose demise it seeks: a promised land.

From Daniel Carpenter’s forward to: Delbanco, Andrew. The Abolitionist Imagination. Harvard University Press. 2012.

Perhaps climate change activists should begin calling themselves fossil fuel abolitionists.

Federalism and the French Canadians

As part of my preparation for my August comprehensive exam, I read Pierre Trudeau’s 1968 collection of essays: Federalism and the French Canadians. Compared to the other texts on the list, it is short, clear, and accessible. While some of the controversies addressed are too obscure to be intelligible to someone who has never closely studied the politics of Quebec at the time, the book does set out the general thrust of Trudeau’s thinking in areas ranging from the shortcomings of ethnic nationalism to the importance of bilingualism and federalism in Canada.

Written during the middle of what has subsequently been called Quebec’s ‘Quiet Revolution‘, Trudeau’s book argues that the constitutional structure of Canada’s federation, encompassing Quebec, arose appropriately from the historical circumstances of Canada’s founding. (197) Regarding the future of that province, he describes two alternatives: one in which isolation and ethnic nationalism lead to stagnation and an economy and society falling ever-farther below the world standard, and another in which federalism is renewed, particularly through the universal application of bilingualism across Canada. (32, 48)

Trudeau does an acute job of identifying the shortcomings in an ‘asymmetric’ approach to federalism, in which some provinces are granted special privileges or substantially more power than others. For one, how can provinces granted such rights be appropriately accorded equal influence within the federal government to provinces with lesser powers? Trudeau also discusses the contradictions involved in asserting national self-determination for Quebec. If it is a ‘people’ that holds the right to declare political independence, how can they bring with them an Anglophone minority that doesn’t want to come, or indigenous groups that would choose to remain part of the rest of Canada. Similarly, how can they leave behind Francophones in other provinces? (153) He concludes that a modern state must be polyethnic and that such a character actually empowers and enriches a society through openness, diversity, and tolerance. (156-8, 165)

Trudeau stresses the importance of the division of powers to democratic legitimacy – describing the importance of the electorate being able to identify which level of government bears responsibility for a particular policy. The book also describes Trudeau’s perspective on equalization payments as an essential part of a federation in Canada, justified on the basis that they will allow all provinces – regardless of economic circumstances – to provide the same basic standard of social support. (27, 72)

In one long chapter, Trudeau describes what he perceives as the obstacles to democracy in Quebec. These are chiefly the things which the Quiet Revolution arose against: an overmighty Catholic church, restrictions in speech and education, a parochial elite dominating society, and lingering feelings of historical inferiority and exploitation. (106) He highlights, for instance, the enduring alliance that emerged between the English Canadian elite that played a large role in the Quebecois economy and the Catholic Church which was permitted to operate largely unchanged after the Seven Years’ War and 1774 Quebec Act.

Trudeau frequently expounds on the importance of reason and the allure and inadequacy of emotion for making political arguments or justifying political institutions. He is largely dismissive of nationalism as a force for unity in Canada. He also refers frequently to the importance of expanding individual liberty, using this as the criteria for distinguishing between ‘genuine’ revolutionaries and counter-revolutionaries. Trudeau’s view of constitutional politics is remarkably Burkean, with an emphasis on the idea that Canada’s constitution doesn’t merely reside in one or more constitutional documents, but also in precedents and traditions, and that the fact of standing the test of time is an endorsement of their merit. (20)

In places, the book seems to fall into some of the traps of which the author is wary. In particular, there are segments where close logical argument is abandoned in favour of something more like emotional or rhetorical hand-waving. Nonetheless this is an unusually interesting book. Indeed, it is probably a unique one in Canadian history insofar as it shows the thinking of a politically-minded academic who actually went on to make singular changes to how Canada is governed, via the patriation of the constitution and the Charter.

Peter Russell on recent decades of Canadian constitutional politics

At the beginning of this book I introduced Burke and Locke as representing two different approaches to constitutionalism. For the Burkean, a constitution is thought of not as a single foundational document drawn up at a particular point in time containing all of a society’s rules and principles of government, but as a collection of laws, institutions, and political practices that have passed the test of time, and which have been found to serve the society’s interests tolerably well… From the Lockean perspective, however, the Constitution is understood as a foundational document expressing the will of the people, reached through a democratic agreement, on the nature of the political community they have formed and how that community is to be governed… The central argument of this book has been that up until the 1960s constitutional politics in Canada was basically Burkean, but for a generation – from the late 1960s to the mid-1990s – the prevailing constitutional aspiration in Canada and in Quebec was for a Lockean constitutional moment. That effort failed, for the now obvious reason that in neither Canada nor Quebec was there – or is there – a population capable of acting as a sovereign people in a positive Lockean way.

Russell, Peter. Constitutional Odyssey: Can Canadians Become a Sovereign People? (Third Edition). 2004 (first edition 1992). p. 247-8

HOPE 6 videos

2600 Magazine has just posted an archive with 67 hours of talks originally given at HOPE 6 in 2006. They are available for purchase at DVD quality, of free viewing via YouTube at lower quality.

There is some seriously interesting stuff in here: Basics of Forensic Recovery, Binary Revolution Radio, Exploring Your World with Open Source GIS, GPS, and Google Maps, Keynote Address – Richard Stallman, Urban Exploring: Hacking the Physical World, and a lot more.

Note: many of these videos include bizarre and implausible conspiracy theory ideas.

What Toronto350.org is up to

We are quite busy this summer. We are working on finalizing our brief to the University of Toronto, making the case for why they should divest from fossil fuels. We could definitely use some expert assistance for some of the legal and financial sections, so if you know any lawyers or financial professionals who would be willing to have a look for us and make some suggestions, it would be much appreciated.

We are also taking part in the National Energy Board process on the reversal of the Enbridge Line 9 pipeline to carry diluted bitumen east. We have been accepted as a commenter, and will be providing written evidence in early August.

With the sponsorship of Toronto’s Pure+ Simple spas, we are also holding a massive screening of the film Do the Math on October 9th. It will be at the Bloor Cinema, which seats 700, and there will be two shows at 6:30pm and 8:30pm respectively. We are working to line up some exciting speakers, as well as food and beverage sponsors.

Finally, we are gearing up for a big recruitment drive at the beginning of the school year in September. We will be working to get the 300 endorsements we need for the completed brief, as well as swelling our ranks of supporters and volunteers.

Operational security for disclosing wrongdoing

Wired on the steps now required for whistleblowers to leak evidence of wrongdoing to journalists, in an age of ubiquitous surveillance:

“Get a dedicated computer or tablet: the cheapest Windows laptop will do. And pay cash, as our normal laptops have a host of automatic synchronization and similar services. Our personal web browsers also contain all sorts of location-identifying cookies. Even if you’re logged in to but don’t actually visit Facebook’s home page, a subpoena to Facebook can still reveal where you connect and what pages you visit — every “Like” button reports to Facebook that you are visiting that particular page, at a particular time, from a particular IP address.

Leave your cellphone, your normal computer, and your metro card (like SmarTrip) at home: anything that speaks over a wireless link must stay behind. Then go to a coffee shop that has open Wi-Fi, and once there open a new Gmail account that you will only use to contact the press and only from the dedicated computer. When registering, use no personal information that can identify you or your new account: no phone numbers, no names.

Don’t forget: if you get anything at the cafe, or take public transit, pay cash. Be prepared to walk a bit, too; you can’t stay close to home for this.

Of course, the job still isn’t finished. When you are done you must clear the browser’s cookies and turn off the Wi-Fi before turning off the computer and removing the battery. The dedicated computer should never be used on the network except when checking your press-contact account and only from open Wi-Fi connections away from home and work.”

Related: Wikileaks and whistleblowers

More on climate change and capitalism

My friend Stuart on climate change and capitalism: How to Change the Future — and Why We Need To!

Personally, I can see why the argument that capitalism and sustainability are incompatible is convincing to a lot of people. At the same time, I think we have enough of a project on our hands just in replacing the global energy system with a climate-friendly alternative. Replacing capitalism at the same time may well be impractical – and there is no way of being sure that any system with which we replace it will do any better. To me, the liberal economic solution of internalizing externalities through regulation and tools like carbon pricing seems like the most promising path for checking humanity’s more self-destructive impulses. Admittedly, success will require that governments and citizens take a longer-term view of their own interests and develop a greater ability to resist the influence of fossil fuel companies and the short-term temptations associated with excessive fossil fuel use.

Also, I think there is a critical role that capitalist finance will play in driving the global clean-energy transformation. Right now, the plan is to spend trillions of dollars during the next century extracting and processing the world’s remaining fossil fuels. If we are going to build things like country-sized renewable energy facilities (which we will need for everyone on the planet to develop or maintain lifestyles that will probably be acceptable to them), that massive investment will need to be re-directed and the capitalist mechanisms of innovation, deployment, and return-on-investment will likely be necessary.

There was a discussion about this here before: Climate change and capitalism

Divest McGill arguments rejected

A committee formed by the administration of McGill University has rejected the argument from Divest McGill that the school should sell its stock in “corporations involved with the production, refining, transport and sale of fossil fuels” and “financial institutions which have not adopted a policy of making no further loans to corporations that produce, refine, transport of sell fossil fuels”.

Rather startlingly, the committee concluded that: “Since the Committee is not satisfied that ‘social injury’ has occurred, no action was considered or is recommended.”

Given that climate change is the ‘greatest market failure the world has ever seen’ the case that fossil fuel companies are doing social harm is very strong. While the committee’s decision is disappointing, it is useful for Toronto350.org insofar as it shows what sort of things the committee that will eventually be formed here is likely to focus on. For instance, no discussion of science and a strong emphasis on law. Knowledge that we derive from this response will help us make our own brief stronger.

We are also calling for a different set of actions from the University of Toronto, which I think will make it easier to establish our case. Specifically:

  • Make an immediate statement of principle, expressing its intention to divest its holdings in fossil fuel companies within five years,
  • Immediately stop making new investments in the industry,
  • Instruct its investment managers to wind down the university’s existing holdings in the fossil fuel industry over five years, and
  • Divest from Royal Dutch Shell by the end of 2013.

This seems easier than asking a Canadian university to divest from all financial institutions which invest in fossil fuel companies, which probably includes all those in Canada.

The McGill committee never got to questions of practicality or financial impact on the university, since they rejected the basic claim that fossil fuel companies are doing social harm. If we are able to establish the second point to the satisfaction of the University of Toronto, we will still need to address concerns in the first two areas.

Our brief still requires a lot of work, so if you know anyone in Toronto who would be willing to help, please encourage them to get in touch with us. We could especially benefit from anyone with expertise in law or finance.

Maureen Ramsay on torture

“What is inherently wrong with torture?

Investigation as to what is wrong with torture, independent of its bad effects, may throw some light on why torture is practised and how academics obscure the purpose of torture when they debate its justification as a way of extracting information to save multiple lives in a ticking bomb context. What is inherently wrong with torture is captured by the Kantian idea that torture violates physical and mental integrity and negates autonomy, humanity and dignity, coercing the victim to act against their most fundamental beliefs, values and interests. For Shue, it is that fact that the victim is powerless before unrestrained conquerers that accounts for the particular disgust torture evokes. For Parry, torture demonstrates the end of the normative world of the victim and expresses the domination of the state and the torturer. The torturer and the victim create their own terrible world of over-whelming vulnerability and total control with potential escalation that asserts complete domination. Torture is world destroying in its ability to invert and degrade ideas of agency, consent and responsibility.

Sussman argues that there is a distinctive kind of wrong that characterises torture that distinguishes it from other kinds of violence or physical and psychological harm. What is wrong with torture is not just that torture enacts an asymmetrical relation of complete dependence and vulnerability so that the victim acts against his or her own choices and interests. Nor is it just the profound disrespect shown to the humanity and autonomy of the victim as an extreme instance of using a person as a means to an end they would not reasonably consent to. Torture involves a systematic mockery of the moral relations between people. It is a deliberate perversion of the value of dignity and an insult to agency. Agency is turned on itself. The torturer forces the victim into a position of colluding against himself, so he experiences himself as simultaneously powerless (a passive victim) yet actively complicit in his own debasement. Torture is not just an extreme form of cruelty, but an instance of forced self-betrayal where the torturer pits the victim against himself, an active participant in his own violation.

These accounts focus on what happens when torture takes place, rather than the bad consequences of torture or what specific practices constitute torture. What constitutes torture here is not defined by the severity or intensity of pain, but rather by the logic of the morally perverted structure of the relationship between torturer and victim. If what is inherently wrong with torture is the mockery of moral relations, the asymmetrical relationship of power and defencelessness it enacts which degrades agency, humanity and dignity; which coerces the victims to act against their choices, beliefs, values and interests, then it could be that this is precisely why it is used. The explanation of what torture is, is connected to the point and purpose of torture.

Within a ticking bomb situation, the motive for torture is the need to extract information, but Parry argues that this is not the only purpose:

… the impulse to torture may derive from identification of the victim with a larger challenge to social order and values. The possibility takes on greater salience amid claims that the threat of terrorism requires aggressive self defence in the post September 11 world… when the social order is threatened especially by people seen as outsiders or subordinates, torture may function as a method of individual and collective assertion that creates perhaps an illusory sense of overcoming vulnerability through the thorough domination of others.

Parry points out US interrogation practices take place against a background of terrorism which has created a sense of vulnerability and social upheaval. Given this, it is plausible to suggest that in addition to seeking information from suspects, torture has been used to assert and confirm the unconstrained power of the US, to degrade and dehumanize the enemy, to force the silencing and betrayal of their beliefs and values, to signify the end of their normative world. It would not be surprising to learn that torture has been used as a means of total domination and social control, not only over the prisoners in the cages of Guantanamo, or the cells in Afghanistan and Iraq, but over those communities hostile to US power, to intimidate and to break their collective will in accordance with their own beliefs, values, and interests.

If the impulse to torture is as much about instantiating power relationships as it is about extracting actionable, credible information, then this may explain, though it could never justify, why the US resorted to torture in its war on terrorism. Such an explanation is necessary especially given that counterproductive consequentialist considerations undermine arguments which excuse or sanction the torture of terrorist suspects for alleged intelligence benefits. Such an explanation fits given that the vast majority, if not all cases of torture and cruel, degrading and inhuman treatment since September 11 could not be justified by the belief that the suspects held vital information that could divert imminent catastrophic attacks. Torture and other forms of ill-treatment have become the norm rather than an exception in rare circumstances. Yet, despite this, torture continues to be debated as if it were merely a morally questionable way to extract information and as if it was this purpose which requires defending.”

Ramsay, Maureen. “Can the torture of terrorist suspects be justified?” in Andrew, Christopher et al eds. Secret Intelligence: A Reader. London; Routledge. 2009. p. 422-3 (paperback) (emphasis added)

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