|
By Mary Anne Waldron
AS OUR SOCIETY diversifies, through immigration and proliferation of various
belief systems, we need to examine the role our courts play in handling the
ensuing conflicts.
Most of us would be more comfortable living in a society that reflected our own
moral and ethical conclusions. However, when belief systems vary widely, there
will be considerable disagreement on a wide variety of social issues.
The core question is: How do we live together in peace, given our dramatic
differences in belief?
I suggest that our courts are not making the contribution they should to
answering this question. The legal system cannot pretend to be able to resolve
conflicts in belief; a court case rarely changes hearts and minds. But courts
could contribute to creating a structure in which those holding a multiplicity
of belief systems can live together in civility.
Courts’ normal approach to conflicts is that one decision is made at a time, only on
the facts before the court, and legal principles are shaped incrementally. This
has served Canadians poorly when courts have dealt with moral conflict.
Judges ill-prepared
In law school, judges develop an understanding which prepares them to deal with
traditional areas of legal dispute such as property, contracts and criminal
conduct. However, little prepares them for understanding moral conflicts in
which they are not only judges but inevitably participants to some degree,
based upon their own belief systems.
Left without alternatives, judges often unreflectively adopt one side of the
conflict and use the force of the law to impose it. Often a strong dissenting
opinion takes the other side of the controversy. But because of the nature of
moral conflict, the result of this approach is to increase tensions, as the
losing side finds the decision incomprehensible and unjust.
I suggest that courts would be better advised to look for principles that can
enable them to hold an even hand between competing beliefs, until a social
consensus emerges.
The Canadian Charter of Rights and Freedoms, which confers the fundamental
freedom of conscience and religion on all Canadians and then delineates the
extent to which the state can go in restricting that freedom, seems to provide
an ideal vehicle for accomplishing this task.
However, if the courts fail to develop and apply these principles, the
opportunity presented by the Charter to handle moral conflicts will become
Canada’s wasted opportunity.
If we acknowledge that moral conflict is ineradicable in our society, then we
can understand democratic society as a series of multiple conversations, held
between groups or individuals, to persuade and convince others.
If these ‘conversations’ are how we make public decisions, then openness to expression of all views is
of the utmost importance. Freedom of conscience and religion not only allows
citizens, in private, to make up their minds freely, but also has a public role
of keeping open the democratic debate to persons of all beliefs and opinions.
Public belief unprotected
In consequence of this principle, courts should protect public expressions of
belief of all kinds.
But when we look at case law, we tend to find courts acting instead to suppress expressions of public belief, at the behest of those offended by them.
Some court cases have reinforced the idea that we are entitled to be legally
protected from ideas and beliefs with which we disagree.
Continue article >>
|
Instead of encouraging public familiarity with a multiplicity of beliefs, the
decisions suggested one segment of society was justified at feeling resentment
at the expression of the beliefs of another segment.
If freedom of conscience and religion are viewed as a fundamental contributor to
democratic processes, then courts in interpreting those freedoms should aim to
promote and protect both the broadest possible public expression of difference – and also the rights of citizens to undergo a possible future change of belief.
Our public conversations are comprised of individuals and groups constantly
making an effort to convince others to accept policy choices in accord with
their belief systems.
Freedom of conscience and religion, therefore, needs also to be interpreted so
that it may play a role in ensuring fair rules of engagement in this process.
Equality protected
Courts have often treated freedom of conscience and religion as not being as
much about democratic processes as about equality – protecting the minority from unequal treatment. In Canada, our notions of
minority protection have largely been implemented through accommodation – a process by which individuals are exempted from policies.
Unfortunately, equality rights are themselves part of a hotly contested moral
conflict in Canadian society. While most Canadians would state they favour “equality” for all citizens, closer examination reveals that the issues of equality – for whom, under what circumstances, at what cost and in what way – are in many cases controversial. Using the language of equality, tolerance or
accommodation does not resolve the moral conflicts belief differences evoke.
Courts are not using the tools at their disposal to handle conflicts in a way
that maximizes democratic processes in a pluralistic state.
To improve this situation, they must cease to be a reflection of those
conflicts.
Mary Anne Waldron is a law professor at the University of Victoria. The preceding piece was excerpted from a lecture she gave at UVic in September. A transcript of the complete talk is available here.
October 2009
|
