Bad History Hits a Red Light

Syphilis, medieval style

In my previous post, I took historian Michael Bliss to task for committing a certain type of error I chose to call the “Has been-Ought” fallacy, or the fallacy of deriving an “ought” claim from a statement about how things were in the past. In this post I’d like to present some more shoddy argument by another who makes her living in the historian’s trade.

It begins with a story that has been in the news here in Canada for the past couple of days. It involved a court challenge to our criminal laws surrounding prostitution and the sex trade. Prostitution per se is not illegal in Canada, but many of the surroundings of the trade are. The challenge to the current laws insists that since having sex for money is not an illegal activity, the other legal prohibitions surrounding it create harmful working conditions which pose a threat to women, and are therefore unconstitutional. The challenge made it through Ontario’s highest court, so now it will presumably make its way to the Supreme Court of Canada.

Although I have my own opinions on this case, I shall not try your patience with them here. Suffice to say, I believe the decision was a bad one, on much the same grounds as I believe the earlier Insite decision was a bad one — both cases make pronouncements on issues of public policy (not within the court’s mandate), and because they uphold victim culture and further erode the notion that persons are responsible for their own behavior. But enough about my unpopular and possibly mistaken opinion on the matter.

In any case, no sooner had the decision come down, than we were entertained with a flurry of excited articles extolling the economic and social benefits of an industry in legalized brothels in Canada, most of them written in a tone of lurid speculation and hushed excitement. One thing these enthusiastic articles have in common is that they are all written by men. Men, it seems, or at least male journalists, cannot wait to have legalized brothels. The opinions of women, including prostitutes themselves, on the subject are considerably more mixed.

I should say that there was at least one article, written by a female historian, which offered an unusual defense of legalized and regulated brothels. Penned by Professor Jacqueline Murray, and cleverly titled “The Whores of Yore”, it made the argument that the people of the Middle Ages had it right in their attitude towards the sex industry. Prof. Murray seems to be a historian of a rather revisionist bent. According to her, in the Middle Ages legalized brothels were the norm. She further contends that they provided legitimate career options for women who had fallen through the cracks of a society devoid of social safety nets. She also argues that they provided two further benefits. First, they made prostitution healthier, by enabling authorities to conduct health inspections, and by giving prostitutes access to medical care. Second, legalized brothels provided men with an outlet for their sexual urges, which would otherwise find expression in the accosting and potential rape of respectable wives and daughters.

In each of these claims, Professor Murray is dead wrong, and laughably so. Let’s examine each claim in turn.

Legalized Brothels:

Prof. Murray claims that legalized brothels were the norm in medieval times. As an example, she cites the case of the Bishop of Winchester’s ownership of London’s Southwark “stews”. She is right in claiming that brothels were commonplace. But to claim they were legal is quite a stretch. And with regard to the canard about the Bishops of Winchester, sadly, it seems the learned professor has fallen for the historical equivalent of an urban legend.

First off, we are in no doubt of the Church’s official position: prostitution is a sin, for both buyer and seller. This means that, as far as canon law was concerned, prostitution was illegal.

As for Southwark, yes, the land formed part of the manorial lands of the Bishops of Winchester (or more appropriately, the corporation of the Bishopric of Winchester). There would have been a variety of businesses situated on those lands, all of them paying some rent to the bishop. Some of these businesses were “stews” — taverns in which prostitutes customarily plied their trade. The bishop would not have been a pimp or procurer of women, as those who reproduce this story seem to imply. He would merely be a landlord, a receiver of rents from the many tenant businesses, stews included. I suppose this technically means the bishops lived off the avails of prostitution, but they had no direct hand in running brothels. Therefore, Prof. Murray’s claim that “the ‘stews’ of Southwark, now the South Bank of London, were owned and operated by the Bishop of Winchester” is misleading, to say the least.

For a fascinating and thorough history of the Southwark stews, I cannot recommend highly enough Henry Ansgar Kelly’s article, “Bishop, Prioress, and Bawd in the Stews of Southwark,” Speculum 75 (2000), 342-388. You will quickly learn that there is no basis, in medieval London at least, for the claim that brothels were legally-sanctioned operations. They were illegal, notwithstanding that the local authorities often turned a blind eye to them. If that makes them legal, then by that definition an underground dogfighting league is legal so long as it keeps paying off the cops. And in fact the stews of Southwark were shut down by the authorities from time to time. And whores were punished, much more severely than they are in our society. Then, as now, there were occasional moral panics interspersed among periods of official indifference.

In short, Prof. Murray’s high claims of legal prostitution in the Middle Ages are essentially rubbish. At best we can say that in some areas, for some periods, prostitution was de facto legal, but it was never so de iure.

Economic Opportunities for Women:

This argument can be hastily disposed of. I’m sure prostitution did provide incomes to women who were outcast. I suppose if such a woman had cut off an arm or a leg and begged in the streets, then that too would have provided her with an income. Does that make it good social policy to encourage it, or to tax it? Can we really not do better for our women than the medievals did (or rather didn’t) for theirs? Let me ask you this: If you had a daughter who had fallen on hard times, would you prefer she had the “option” of prostituting herself, or would you prefer a proper social safety net to help her get back on her feet? (I know, I’m suddenly raving like a socialist. Chalk it up to my inner Red Tory.)

Part of what makes destitution a bad thing is that it limits freedom by compelling people to do degrading things against their preferences and better judgment. Prof. Murray seems to speak of prostitution as a solution to poverty, when it should be viewed as a symptom of it. She doesn’t seem to realize it, but her views betray a chilling lack of empathy for the poor that makes even a cold soul like mine shudder. This is truly “let them eat cake” thinking at its worst. And yet, ironically, I imagine she prides herself on her liberality, tolerance, and kindness.

Sexual Outlets for Men:

Professor Murray is far from the first person to make this claim. This has been argued since time immemorial. Some medieval theologians thought prostitution was a necessary evil, and a minority claimed that it deterred homosexuality. In short, this line of argument says that men — or some indeterminate subset of them — are lecherous by nature, and that if it weren’t for the sexual outlet that prostitutes provide, they would be busy raping respectable women, or else having sexual congress with men or animals or ripe fruit. This argument is more than a little dubious. What’s more, it manages to be degrading both to men and women at the same time.

Supposedly, a certain proportion of men who visit prostitutes would rape women if prostitutes were unavailable. This is an empirical claim, and to my knowledge it has never been empirically verified. But even if it could be verified, I doubt very much that it can support an argument for legalized prostitution. It implies a reductive view of men as utter slaves to their sexual drives. Furthermore, these sexual drives cannot be controlled, trained or sublimated. If this were true, then it seems to me a more natural answer would be castration, not legalized prostitution. Instead, we’re told by people like Prof. Murray that the only way of dealing with these men is to provide poor women for them to use as sexual “outlets”.

And they must be poor women, mind you, fallen women. After all, we don’t want these men touching the daughters of decent people, respectable people. And here methinks I spot the latent schizophrenia in much “progressive” philosophizing about prostitution: On the one hand, we are to believe that there is nothing wrong with prostitution, and that we should legalize it, tax it, and make it safe for women. Women who engage in it are to be called “sex workers” and are to be treated as if they are skilled tradespeople who have freely made a valid career choice. On the other hand, of course, you would be hard pressed to find people who would approve of their own daughters entering this supposedly respectable trade. What would be your feeling if your daughter's high school guidance counselor suggested she take up this trade, or that she had an aptitude for it? In other words, it seems to be implied by the ruling progressivism on the subject that prostitution is a valid career choice only for the daughters of others, preferably for the poor, or for the daughters of the poor. These are the appropriate outlets for potential rapists to let off a little steam with.

It’s Healthier:

Professor Murray makes the claim that prostitution in the Middle Ages was rendered healthier through legalization. Prostitutes working in brothels were subject to medical inspection, or so she claims. Given the prevailing state of medical science and practice at the time, I can only imagine what these “inspections” consisted of. We can safely assume that they were invasive, degrading, and open to abuse.

We are also told by Prof. Murray that the brothels brought prostitution into the open, and made medical services available to the women. Again, given the state of medieval medical science, I can only wonder what sort of help they could expect to receive from a medieval doctor.

I once wrote an article on the history of syphilis. It was a fascinating subject to research. The mainstream consensus is that syphilis arrived in Europe from America in the 1490s; in other words, it arrived at the tail end of those sexually enlightened Middle Ages that Prof. Murray extols. It is hard to overestimate how the arrival of syphilis ravaged a society that was unprepared for its onslaughts, and one of the main vectors of transmission was through baths and brothels. Read up on the arrival and initial spread of AIDS in North America and you will find the parallels are eerie; many cities in the early 1980s shut down their bathhouses. And much like AIDS in 1980, for the late medieval syphilitic there was no effective medical help to speak of, other than quack cures like mercury. The syphilitic would have mercury baths, causing her teeth and hair to fall out and making her drool uncontrollably. The “cure” was a form of poisoning that was as likely to kill as the disease itself.

(Incidentally, we get our word “quack” from the Dutch kwakzalver, a hawker of salves. The Dutch word became popular in English because it sounded much like “quicksilver”, the most popular quack treatment for syphilis. But I digress.)

The fact is, throughout pre-modern literature, the whore is a byword for short life, as it still is today. Medieval history provides no support for the notion that prostitution ought to be legalized.

Addendum:

It is often argued (for example, by feminist intervenors and amici curiae in the famous Canadian case of R. v. Butler) that the availability of pornography causes men to rape and should therefore be banned. Others argue that pornography provides an outlet for men, and therefore makes women safer. In the absence of any sound empirical evidence, it seems one can make unverified empirical claims either for or against a thesis.

Might not a similar phenomenon be happening with the back and forth regarding prostitution? One side, as exemplified by people like Prof. Murray, will argue that prostitution provides an outlet for men’s sexual urges. But since there is no evidence one way or the other, it can just as easily be argued that access to prostitutes might actually irritate and enflame those aberrant sexual urges and actually cause more men to rape. And after all, if society takes a winking attitude towards using women as sexual outlets, perhaps pushing the envelope a bit is not such a terrible crime? Or at least that is what such lowlifes might be led to think to themselves.

Of course, there is a relevant sense in which much prostitution is akin to a kind of indirect rape. If the typical prostitute is driven to the sex trade through poverty or addiction or literal slavery, then she suffers from a compromised will. Therefore, perhaps the sex she engages in cannot be characterized as entirely consensual. The man who pays to have sex with her perhaps does not physically overpower her and pin her down. Rather, her life circumstances do that dirty work for him.

The Malaise of the Intellectuals

Do we dare to dream?

Warning: This post is short on argument and long on venom. And I think I could technically get arrested for it. And it's so full of earnestness that I almost sicken myself. But I don’t care, because I’m really pissed off.

A Mirror for Princes


Here’s some advice that Machiavelli could add to The Prince were he alive today: When a prince is opposed by the disaffection or animosity of the learned, there are two ways to neutralize the threat. The first way is simple liquidation. If well-executed, this method has the benefit of disposing of the threat quickly and thoroughly. It has the drawback of creating fear in those who are not purged, and fear can easily become the focus around which further opposition will coalesce. It can make secret enemies of those who were once well-disposed or indifferent to the prince.

Much better is the second method: Give each disaffected intellectual a tenured university post and a six-figure salary. This has the proven effect of dulling the intellectual’s common sense; it cuts him off from the real concerns of common life, and in time it may transform him into the prince’s loudest partisan. More importantly, the intellectual will be generally ignored by the people at large, since the common run of people rarely care about what eggheads have to say. The sinecure will offer him just enough prestige to stroke his ego (intellectuals are among the vainest of creatures), while also, somewhat paradoxically, tenure will offer him the kind of security that it would be sheer folly for him to jeopardize. Once the intellectual is so placed, it is left to the prince to wait for time and age and rich food to naturally take their course. Another enemy is eliminated — but humanely, of course.

If there are not enough professorships to go around, or if the intellectual in question is rather less clever or has a drinking problem, the prince can achieve the same goal on the cheap by somehow arranging for said intellectual to be placed as an armchair op-ed columnist in a prestigious large-circulation newspaper (newspapers are a valuable tool — every prince should control the editorial board of at least one). The newspaper should preferably be a daily; that way the intellectual will be too oppressed by frequent deadlines to have either the brains or the energy to offer any incisive criticism of the prince’s rule. He must be kept as busy as a bitch in a puppy mill, churning out diseased and inbred prose that strikes the double-plus-good balance between sententiousness and meaninglessness.

The intellectual-cum-journalist will in due course become too tired and jaded to believe that any real change is possible, or that any change could possibly be in his personal interests. And his salary should make him just comfortable enough that he will not wish to endanger his position by advocating for a substantial alteration of the status quo. As the journalist ages, he may become a sighing and ineffectual cynic. He will also be little-regarded. Or else, akin to a sort of Stockholm syndrome, he will eventually come to love the prince’s regime and his special place within it. The erstwhile enemy then becomes a trusty retainer. But a prince should remember that retainers must always be rewarded: after doing faithful service to his prince, the superannuated journalist should find himself the recipient of a seat in the Senate, where he may doze away his remaining days, his aged head pillowed upon the perfumed lap of a generous public pension. And thus, another enemy of the prince is eased out of this bustling world with nary an eyebrow raised.

So much for advice to princes.

Blowing out the Moral Lights

I am led to these ruminations by my observation of the reaction of Canada’s kept intellectuals and chatterers to the latest tale of scandal and criminality by Canada’s ruling junta (a.k.a. The Harper Government™). For non-Canadian readers, and for those Canadian readers too apathetic to care anymore, Prime Minister Stephen Harper and his ruling Conservative Party have managed to get themselves implicated in a voter suppression scam in the last election that used automatic phone messages (and in some cases live callers) to direct voters to the wrong polling stations. In some cases these calls purported to be from Elections Canada. Elections Canada is adamant that they never phone voters; they are currently investigating the allegations. New details emerge by the day, and none of them are particularly flattering to the Glorious Leader and his Star Chamber cabal.

To be fair, no watertight case has yet been built to implicate the Tories in the scam, at least not one that will hold up in a court of law. So far. However, given past history (they have already been found guilty of electoral fraud in the 2006 election), and given the uncomfortable-looking contortions the Prime Minister’s communications people have spun themselves into, no self-respecting Tory can cast his unflinching gaze upon the evidence and call it good. Of course, at this point there remain precious few Tories who can be called “self-respecting”. Or “honourable”. The fact is, “Prime Minister” Harper (for I do not recognize him as such) is a known liar, and on multiple occasions he has shown an absence of integrity that makes me shudder. If he were to walk in front of my moving car, I would not brake. And I would consider it my duty as a citizen to back up over him again, just to be sure. I have all the evidence I need, and every passing day gives me more. I am convinced that his party is guilty and that the conspiracy is more widespread than currently indicated. There was fraud committed, no doubt. Harper is guilty of enough else that we may as well throw this charge into the mix. After all, when you’re looking at several consecutive life terms, what’s one more murder in the indictment, right?

If most Canadians’ well-founded suspicions are true, then Canadian politics will have plumbed new depths. The allegations are serious. They strike at the very core of our democratic institutions. As far as I am concerned, what we are hearing about is what in a more honest age would have been called TREASON. I can think of no more serious or fundamental crime against the state, aside perhaps from an outright palace coup by an armed military junta. I will say of The Harper Government™ what Abraham Lincoln once said of the slave interest in America: 

They are blowing out the moral lights around us.

When faced with the prospect of such utter Cimmerian darkness, to await more evidence is folly. After all, why should decent and generally law-abiding citizens put up with being told to wait for the evidence and presume that the junta is innocent until proven guilty, when that junta has itself shown staggering contempt for the rule of law over the past six years?

Innocent until proven guilty? No, because Harper has never once extended the same benefit of the doubt to his enemies. Since he has decided that politics is a form of war, that there is no such thing as a loyal opposition, and that dissent is treason and deserves no quarter, I am no longer willing to play by the rules that he flouts. If Harperian politics is war by other means, then fuck it, let’s rumble. Let’s take the war to his doorstep, to his family, and to whatever other things such a reptile might be capable of loving besides power. He would do no differently if given the chance. Whoever would rid us of this despot is deserving of a statue, a public feast day, and the undying gratitude of generations of Canadians yet unborn.

The Malaise of the Intellectuals

I apologize for my unmeasured and uncouth language in the previous paragraph. I moved myself into a paroxysm of sputtering rage, and I allowed myself to get off track. That tends to happen when I try to describe the obscene moral abyss that is Stephen Harper.

Returning to the topic of kept intellectuals, both academic and journalistic. Our nation’s most noble and ignoble brainboxes insist on referring to the voter suppression activities in winking terms as “dirty tricks” or political “shenanigans”. Again, I firmly believe that the appropriate word is “treason”. Let us first discuss the academics. Then we shall turn to the journalists.

A couple of days ago I had the dubious opportunity to attend an academic panel discussion on the scandal at the university in which I work. This university is about as leftist as such an institution can get — no mean feat! There were two learned professors of political science and one professor of philosophy (the last happens to be a personal friend). The depressing upshot of the whole conversation was that nothing will come of this scandal, that all parties play dirty tricks, and that we’ll just have to wait four years to vote the bastards out, so that we can elect a new set of bastards. This is the sighing and ineffectual cynicism to which I referred earlier.

Their views were in keeping with those of famous (by Canadian standards at least) historian Michael Bliss, as expressed on a CBC radio program this past Sunday evening. Professor Bliss, it is now painfully evident, has become a silly old hack. He has declined into that contemptible sort of character whose sole remaining purpose in the public sphere is to be trotted out to clothe indefensible viewpoints in academic gowns. He usually pontificates on subjects well beyond his professorial magisterium, and in any case his intellect has long since turned into a sort of vanilla pudding in abstract form. Sadly, all that remains of him are his titles and a well-regarded book on the discovery of insulin. The Senate and the grave both yawn before him. I pray the latter take him first.

The learned Professor Doctor Bliss made much of the fact that there had been other scandals in Canadian history. I found this observation not very profound. The general drift of all his vapourings was that, since there have been many scandals in Canadian political history before, we should not be alarmed at this one. However, there are at least three things wrong with this reasoning (I use “reasoning” very loosely).

First, just because something happened in the past doesn’t make it acceptable today. If we can agree that certain past practices were wrong, then we should be able to agree that they’re wrong when they occur today. Put another way, Bliss commits a fallacy of deriving a claim that a state of affairs is reasonable or acceptable, from an antecedent claim that the same or similar state of affairs occurred in the past. The fallacy confuses the descriptive with the normative. This is a fallacy so common among second- or third-rate historians that there ought to be a special name for it. I humbly submit that it should be called the “Has Been-Ought” fallacy, in honour of Hume’s famous “Is-Ought” fallacy, which it resembles, and also in honour of Professor Bliss’ “has-been” status as an intellectual.

(Full hypocrisy disclosure: Perceptive readers of this blog will note that I have myself been guilty of the “Has Been-Ought” fallacy on more than one occasion. Fair enough. I am after all a third-rate historian. It is a trap that we antiquarians often step into. I suppose that when appealing to historical facts, it’s best to remember that the past can teach us much about the limits of what can be done, but that it is the present that must teach us what is worthwhile doing. Or something like that. But I digress.)

The commission of the “Has Been-Ought” fallacy by public intellectuals like Bliss contributes much to a corrosive passivity that filters down from our “thought leaders” to the rest of us. It must stop. Almost nothing will aid and abet a criminal like Harper so much as the knowing wink, nod, and chuckle of the learned in the face of blatant criminality.

Second, Professor Bliss disingenuously ignores the fact that the nature of this scandal is different from past ones. Yes, there was good old John A. Macdonald and the CPR scandal, and innumerable Canadian political scandals that followed (anyone remember the “tainted tuna” scandal?). But very few if any of them consisted of calculated and systematic subversions of the entire democratic process. Most of them were examples of straightforward money grubbing or influence peddling. Quaint stuff really, at least in comparison to systematic electoral fraud. Thankfully, Canadians have a venerable history of using the electoral system to “boot the bastards out of office” when politicians overreach in their corruption. In some cases, powerful parties have been annihilated at the polls, reduced to mere shadows of their former selves. I think this is healthy. But will we be able to rely on this method in the future, after the electoral process has been rotted out by the termites currently in power? No, Professor Bliss, this scandal is very different. Shame on you for being too stupid or dishonest or cowardly to realize it.

Third, as a once-respectable historian, Professor Bliss should have plenty of historical examples at hand showing how fragile a thing democracy is. Within the space of a century the Roman Republic went from possessing admirable governing institutions that were the envy of the Greeks, to having battling gangs of political partisans literally clubbing each other to death in the Forum, followed by a long nighttime of imperial tyranny and decline. Democracy is not history’s default position; to assume so is to take it for granted. For most of history, most of the people that have ever existed at any given time have lived and died under the misrule of tyrants. Democracies are rare and precious things. Again, Professor Bliss, shame on you.

Moving down — far down — the intellectual evolutionary scale, from the groves of academe to the Augean stables of the yellow journalists, let us turn to Exhibit A: John Ibbitson, professional lickspittle and resident oxygen thief at the Globe and Mail, who has, as I write — and doubtless after much straining — broken wind with his seventh column in almost as many days telling us that either there was no conspiracy to defraud the electorate, or that there was one but it was limited to one or two ridings, or that anyone and everyone other than Harper and his Tory banditti were responsible for it. Methinks the shill doth protest too much. His columns are a kind of linguistic flatus: they make a sound and they stink up a room, but they serve little other purpose. To mix my metaphors, the fact is that the Conservative Party of Canada has its collective hand lodged so far up Ibbitson’s posterior that it seems to be working his mouth like a puppet.

What all of Ibbitson’s columns on the subject have in common so far, besides their bad odour, and besides his shameless toadying for a Senate seat, is that they are completely devoid of facts. They do contain plenty of… hmmm… what’s the word I’m looking for… you know, the one that means the opposite of “fact”? Anyway, his columns are larded generously with whatever those are. Actually, don’t bother looking for facts in any Globe and Mail article, since facts have to be dug up and, well, research is not something Globe writers do. It’s not what they’re paid for. Their only job is to chew the cud in the stable and spew something resembling language into a corporate bucket every Monday through Saturday at deadline time.

It has become painfully clear that substantive change will never come from a university or a press, and that if we wait for the intellectuals to do our thinking for us, we will continue our slide into tyranny. We seem to be in the unenviable position of living in an age in which the figures who set themselves up for intellectuals, for our leaders in thought, possess moral qualities inferior to those of the general run of citizens.

We must save ourselves, out on the street. Maybe if we start the parade, they’ll get in front of it, but I wouldn’t hold my breath. In any case, I plan to be at Yonge and Dundas Square in Toronto at 2:30pm this Sunday and I hope to see you there. If you don’t like protesting alone, then send me a message and perhaps we can meet up and protest together.

Manus haec inimica tyrannis.

Lawes or Pollicie?

Reading a legal casebook can be a frustrating experience, for more than one reason. A reader may be frustrated when there seems to be no underlying order, rhyme or reason to the different ways that factually similar cases have been decided by different judges (sometimes even by the same judge). Certain areas of law are worse than others in this respect, tort and intellectual property being examples, in my experience.

What I also find frustrating is when I read a case in which both facts and law are clear, and seem to point unequivocally toward a certain decision, but that decision is at the same time morally, politically, or economically undesirable to anyone other than the party it would vindicate. In truth, I don’t know which I find more unbearable in such cases: the unpalatable decision the law points toward like some hidden chorus, or judges who employ all the sophistry at their command to disregard this chorus and force their preferred outcome. On balance, methinks the latter.

Here follow two hoary cases, decided within a few years of each other by the same court, whose facts and applicable law are in all relevant respects the same, but where the respective judges have come to entirely different conclusions. In the first (Re Drummond Wren), the judge constructs a plausible argument for generating the outcome that he (and we) desire. In the second (Re Noble and Wolf), the judge stoutheartedly sticks to the law, allowing injustice to seemingly triumph, while recognizing it is not the outcome he would have preferred. I would be curious as to which of these decisions you would support. I know where I stand.

Re Drummond Wren [1945] OR 778 (HC)

I should say that at least part of the interest of Drummond Wren for me lies in the fact that the incident it relates took place literally around the corner from my home in East York.

The Worker’s Educational Association (WEA) bought a lot to build a house and raffle it off as a fundraiser. However, there was a restrictive covenant on the land, preventing its sale to “Jews or persons of objectionable nationality.” The WEA sought to invalidate it. But on what grounds? The common law had no objections to such covenants. We must also remember that this case pre-dates both the Charter of Rights and Freedoms and the earlier Bill of Rights. There was no legal or constitutional bar to such discriminatory restrictive covenants at the time.

However, the judge, Mackay, J invalidated the covenant on grounds of public policy. In the course of his judgment he cited certain international agreements to which Canada was a party but which had not been made part of Canadian domestic law, agreements promoting equality and condemning racial discrimination. Although they were not binding, he took Canada’s being signatory to these documents to be indicative of Canada’s public policy commitment to equality. He found that Canada’s apparent public policy position as expressed in these documents was averse to racially restrictive covenants.

Besides such aspirational international agreements, Mackay, J further noted that because Canada is not a homogenous society, there was a public policy imperative in favour of racial harmony, which would be served by invalidating such racist restrictive covenants.

In light of Canada’s public policy interests as expressed in various non-binding documents and in light of a little a priori reasoning about what was in a heterogenous nation’s best interests, Mackay, J felt justified in striking down the restrictive covenant. One sympathizes with him; after all, there is something which rebels against allowing the law to act as an accomplice to injustice. However, his position was repudiated soon after in another case issuing from the same court, and in my opinion on sounder grounds.

Re Noble and Wolf [1948] OR 579 (HC)

This case, tried three years after Drummond Wren, involved the sale of lots in a cottage community on Lake Huron. The land to be subdivided was subject to a restrictive covenant specifying that it could not be transferred to anyone of the “Jewish, Hebrew, Semitic, Negro or coloured race or blood.” Noble and Wolf applied to have the covenant set aside, as Noble wished to sell her lot to Mr. Wolf, who was Jewish.

The decision in the Ontario Supreme Court was not in their favour. Schroeder, J explicitly disagreed with the decision in Drummond Wren. He purposely eschewed appealing to public policy arguments, noting that “public policy” is a vague term, meaning many things to many people. Perhaps more importantly, he asserted that “It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments.” Although he admitted to deploring the racism of the covenant in question, he simply could find no good legal reason why he should strike it down. At the end of the day, it was for the elected legislature to determine whether such covenants should be prohibited.

Implicit in Justice Schroeder’s decision is the following argument, related specifically to the reliance in Drummond Wren on non-binding international covenants: A judge who upholds a non-binding international covenant or treaty as a valid source of law thereby violates the constitutional separation of powers between the executive and legislative branches of government. The executive can sign all the agreements it likes, but the latter do not become law until they are incorporated into the body of domestic law by act of the legislature. Justice Mackay’s use of such agreements as indicative of Canada’s public policy and so as grounds for his decision is tantamount to doing an end run around Canada’s elected legislature. He has played fast and loose with the constitution.

Sadly, precisely such violations of the constitutional separation of powers have become all too common in more recent times, as activist judges treat such aspirational international documents as if they were valid law, in order to generate preferred decisions that the real law constrains them from making. Often, they are led into this error when they leave the law behind to go a-questing in search of “public policy”. Of course, to call it “error” is being rather generous, since often it is done quite consciously.

(On this note I cannot recommend highly enough a book called The Charter Revolution and the Court Party, by F. L. Morton and Rainer Knopff (Peterborough, ON: Broadview Press, 2001). It outlines the many ways in which Charter jurisprudence in Canada has been hijacked by well-organized and sometimes even well-meaning lobbies that use the Charter as a tool to achieve political goals that they cannot readily achieve by democratic means. It has opened my eyes on many constitutional issues.)

The Rule of Law

Just as we feel the law ought not to be a party to the commission of injustice, neither ought it to usurp the right of a democratic people, through its elected institutions, to decide for itself what shall be in its interests and what shall be its public policy. This is the essential tension that these cases bring out.

At its core, the comments of Justice Schroeder in Noble and Wolf express a certain conception of the rule of law. According to this conception, law comprises a set of rules that are binding on everyone in all cases. This idea is expressed in such phrases as “nobody is above the law” and “the rule of laws, not of men”.

Some of these rules are derived from case law, in which judges see their role as that of faithfully following the decisions set down by judges before them (especially ones from superior courts), who in turn derived their decisions from ancient custom, the common sense of the “reasonable man”, or what have you. Other rules, an increasing number in fact, come in the form of statutes passed by legislatures. Such legislatures are competent to pass laws to rule us because they possess a political legitimacy derived from their being a body of the people and elected by the people who will themselves be subject to the laws they pass. To that extent, citizens can be said to bind themselves to laws of their choosing. Of course, this is all quite idealized and presupposes an essentially fair democratic electoral process that doesn’t really exist in Canada.

Whether derived from case law or statutes, it is important to note that, at least in liberal democracies, law does not have its ultimate source in the whim or caprice of any individual. A statue is passed by a legislature in response to the collective will of the people (perhaps a dubious notion in itself), or the following of case law in response to what is taken to be an expression of the ancient custom of the people (even more dubious); these are both examples of the idea that the rule of law is something that transcends the will or caprice of any individual.

At the core of the rule of law is the notion that all must be guided and constrained by law, even where in particular instances it is not in one’s — or indeed anyone’s — interest to follow it. If each was allowed to be judge in his own case, or to be “a law unto himself”, civil society would become impossible.

Similarly, a dictatorship lacks the rule of law because the only “law” is the dictator’s will on any given occasion: such law lacks the sort of stability to guide and coordinate the activities of citizens, and even where the dictator’s will is reasonably steady, he himself is not subject to it; the dictator is literally above the law (or at least outside it).

The judge who deviates from the law in coming to a decision, even with the best of intentions, substitutes his own will, his own preference, in place of the law. The fact that he believes many would happen to share his will does not change this. In that sense he is a dictator in miniature. In a case like Drummond Wren, there is the temptation to think that the judge is justified in appealing to his own conception of public policy, but it is easy enough to imagine other cases where the outcome of judicial entrepreneurship may not be so benevolent. It is only in relatively recent times that we in Canada have come to think of judges as impartial servants of social justice. However, consider this: most labour relations is governed by statues that place collective bargaining and arbitration in the hands of administrative tribunals distinct from the courts of law. There are a few reasons for this, but one of the most important is the fact that, historically, courts have not always been perceived as sympathetic friends of labour. A similar phenomenon was seen in the US, where courts represented a major obstacle to the reforms of the New Deal.

Back when judges were inimical to labour, many of their decisions were founded on claims of public policy, for example the claim that interference with freedom of contract would have detrimental effects on production and economic prosperity. You see, as Schroeder, J pointed out, “public policy” can mean different things to different people at different times. As such, public policy is something perhaps more appropriately determined by elected legislatures rather than left to the conscience of the individual judge. Confusing law with public policy, and confusing the rule of law with the will of old men in robes, is to risk the sort of misrule characterized by Queen Lucifera’s government in Spenser’s Faerie Queene (1.4.12):

“Yet rightfull kingdome she had none at all
Ne heritage of native soveraintie;
But did usurpe with wrong and tyrannie
Upon the scepter, which she now did hold:
Ne ruld her realme with lawes, but pollicie,
And strong advizement of six wizards old,
That with their counsels bad her kingdome did uphold.”

We want to applaud Justice Mackay in Drummond Wren, since his heart was obviously in the right place. And he certainly produced the decision most decent people would prefer. But the rule of law demands that we think beyond the immediate case, to those future cases in which public policy might be determined by judges whose views on public policy do not happen to harmonize with the considered views of the people. Legal history is full of such judges: Jeffreys (the original “Hanging Judge”), Brown (Plessy v. Ferguson), Taney (Dred Scott), Peckham (Lochner v. New York), etc.

Let all judges stick to what they know — the law. Let the public, through their elected officials, and hopefully with the sound counsels of experts, decide on public policy.

I realize that I have tried your patience with this preachy and oversimplified diatribe on the rule of law. But it’s something I feel strongly about. “Rule of law” is a phrase that is used often, but understood seldom, especially among legal experts, whom one would expect to be better informed.

On the Other Hand…

I confess I am not entirely comfortable with the position outlined above. It seems very unfair to ask a person or group who suffers from discrimination that they must be patient and wait for the tide of public opinion to turn, and for the people’s sense of justice to work like the drip of water upon the stone of our political institutions. I am duly reminded of Martin Luther King Jr.’s argument in Letter from a Birmingham Jail to the effect that it is too easy for whites to urge blacks to be patient, and that change will come in its own due time. King naturally replied that blacks had been waiting a long time already; they had been more than patient, and that now it was time for whites to listen and act instead of expecting others to wait for them to do the right thing.

It is hard to dispute that. But one shouldn’t forget something else King said in that same letter: “One who breaks an unjust law must do it openly, lovingly... I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.” King urges us to have the conscience to break an unjust law, but he does not tell us to do so and expect to go unpunished for it. The very injustice of the punishment may be a spur to changing the unjust law. It draws our attention to the law’s injustice in a way that might not happen when a well-meaning judge simply winks and looks the other way and finds dubious means not to enforce it. At best, the law may fall into abeyance, but the people and their legislators are never made to feel the injustice and to do something about it. The sense of (in)justice is allowed to remain dulled.

In short, King recognized that there is no fast way to make fundamental change; people must work at it, and suffer for it.

Afterword

Incidentally (or not?), the Supreme Court of Canada overturned the Ontario Supreme Court’s decision in Re Noble and Wolf in Noble et al. v. Alley [1951] SCR 64. The latter decision makes for instructive reading. It was based mostly on two grounds. One of these grounds turned on the old 1848 English Chancery decision of Tulk v. Moxhay, which laid down the principle that the court “has authority to enforce a contract, which the owner of one piece of land may have entered into with his neighbour, founded, of course, upon good consideration, and valuable consideration, that he will either use or abstain from using his land in any manner that the other party by the contract stipulates shall be followed by the party who enters into the covenant…” In other words, restrictive covenants are legally enforceable by courts. The majority in Noble v. Alley decided that the present case was “an unwarrantable extension of that doctrine,” though it’s frankly not clear to me why they thought so.

The sole dissenting judge in Noble v. Alley, Locke, J, noted that the question whether extension of the doctrine was warrantable or unwarrantable was neither here nor there, since it was not a question presented for consideration by either of the parties in either the original trial or in the subsequent appeal. Put another way, he saw no reason to presume that Schroeder, J had made a mistake of law, based on what was presented for his consideration, and therefore no reason to overturn his judgment. Technically, Locke is correct, though it is a very narrow interpretation of the ambit of the Supreme Court’s review powers by today’s standards.

The second ground for the majority’s decision to overturn Schroeder’s judgment was the apparent uncertainty of the covenant’s terms, since “from its language it is impossible to set such limits to the lines of race or blood as would enable a court to say in all cases whether a proposed purchaser is or is not within the ban.” Note that this does not invalidate racially restrictive covenants per se, but only poorly-worded ones. Apparently, aspirant racists were being advised to better define what they mean by “Jewish, Hebrew, Semitic, Negro or coloured race or blood” in the future. On the other hand, it could also have been argued (but wasn’t) that the putative uncertainty of terms was not relevant to the case at hand, since there seemed to be no doubt about the applicability of the term “Jewish”, Wolf having self-identified as such.

More satisfactory was the US Supreme Court’s decision in Shelley v. Kraemer 334 US 1 (1948), which was contemporary with Re Noble and Wolf, in which it was held that a covenant barring land from being sold to “people of the Negro or Mongolian race” violated the equal protection clause of the Fourteenth Amendment and so could not be enforced. Unfortunately, Canada at the time did not have such a commodious constitutional instrument at hand to generate the preferred decision.

A parting question: Shortly after Re Noble and Wolf had worked its way through the courts, Ontario passed legislation voiding such racially restrictive covenants. Does that change your opinion of the (im)propriety of Mackay, J’s decision in Re Drummond Wren? Does it lend support to the views expressed by Schroeder, J on the separation of powers between legislature and judiciary in Re Noble and Wolf?

Wherein The Avenger Grumbles a Bit

I’m in a cranky mood, so this will be a cranky post. It is always frustrating for a thinking person to read or listen to the news (I almost never watch it, but I imagine that must be frustrating too). Most of the people with whom I spend time, being for the most part a liberal-minded bunch, will be quick to agree with the claim that the right wing media is willfully obtuse on certain subjects (“on most subjects” I can hear them say) and perhaps not as wedded to truth as they ought to be. I agree. The phenomenon that is Fox “News” certainly bears this out. But I submit to you, dear reader, that the leftish or progressive or vaguely liberal media are every bit as truth-challenged and willfully obtuse. In what follows, I will offer three current (or very recent) news items to illustrate, items that have been annoying me inordinately.

Before proceeding, I should qualify what I mean by “leftish or progressive or vaguely liberal media” here. I do not have in mind the Socialist Worker. Rather, I have in mind such august media outlets as the Canadian Broadcasting Corporation (CBC) and the increasingly shrill and stupid Toronto Star newspaper. Heck, I would even go so far as to include the Globe and Mail in this category, whose core reader seems to be a white, male, 55-ish lawyer living in mid-town Toronto who supports gay marriage, the legalization of pot, and balanced budgets.

Without further ado, I offer the following news items, with the briefest of observations on why I find the coverage of them frustratingly inadequate, willfully obtuse, or downright intellectually dishonest.

Case 1: Dwarf tossing

A strip club in Windsor, Ontario is offering dwarf-tossing as a form of entertainment to draw patrons. I don’t care for dwarf-tossing, and I frankly didn’t know there was anyone outside of 1980s Australia who does. Is it bad taste? Of course it is. Is it degrading to little people? I imagine so.

Is it something that the law should keep an eye on? Not unless dwarves are being kidnapped off the street and tossed around for amusement, in which case the Criminal Code already covers it. And yet, almost without exception, every person whom I’ve read or heard interviewed about this story seems to think that the activity should be legally banned, and almost always on the ground that it is degrading.

Now here is the frustrating part for me: If the progressive media truly wants to get on its collective high horse about degradation, then maybe it ought to devote a little more attention to the space in which the dwarf-tossing contest is taking place, and the activities that take place there on every other night when dwarves are not being tossed: a “club” in which women take off their clothes and hump a pole for the sexual amusement of men. How is this not degrading to women in precisely the sense in which dwarf-tossing is degrading to little people? And yet, no mention of this pertinent fact in all the media moralizing. Wherefore the blind spot, dear media? Is it possible that our liberal ideas haven’t quite been fully thought through yet? If so, then perhaps we had better do some hard thinking before we start passing laws that treat some people’s dignity as more worthy of protection than others’. Or else we should mind our own damn business.

(Before moving to the next news item, I cannot refrain from voicing my personal opinion that the politically-correct term “little people” sounds much more unflattering than “dwarves” or “midgets”. Inside my head, “little people” brings forth visions of leprechauns and is always pronounced with an Irish lilt.)

Case 2: Gender-selected abortion

Here is another case of liberal ideas not seeming quite worked out. A medical researcher writes an article advocating that prospective parents not be told the gender of their fetuses until the third trimester, when it is too late to abort said fetus. The reason for this is that certain ethnic groups are using the results of these tests to abort female fetuses out of a preference for males.

If I am liberal, I am, generally speaking, in favour of a woman’s right to choose within certain legally defined limits whether she will carry her baby to term, or whether she will abort the pregnancy. Holding that belief, am I entirely consistent at the same time to clamour for restrictions on a woman’s right to choose which fetuses she can abort and which she cannot? Put another way, if I believe that a fetus does not have a moral status high enough to warrant the protection of its life (within existing legal parameters), am I being consistent in insisting that a subgroup of such fetuses are in need of legal protection over and above that already afforded them in law?

Now, I should state outright, that I am without reservation in favour of a woman’s right to choose abortion. This is not to say I like abortion. After all, I believe that a better world would be one in which women never felt they needed to choose the abortion option. Unfortunately, that is not the world we live in. In that sense, a fetus is to my mind not entirely morally negligible.

Can an argument for protection of female fetuses be sustained within an overall pro-choice framework? I think it can. But the liberal media have not really even tried to offer one. They should, because the conservative media has certainly taken note of what they take to be a glaring inconsistency.

Case 3: Joe Mihevc

Toronto city councillor Joe Mihevc doesn’t like that fact that Mayor Rob Ford unilaterally cancelled an existing transit plan in favour of his own one. My concern here is not with the merits or demerits of either plan. Nor is it necessarily with Mihevc’s subsequent action, which was to retain a law firm to give him a legal opinion on whether the mayor’s move to scrap the plan without council’s approval was kosher. He was certainly within his rights to do so. (The opinion Mihevc received claims that the mayor had no right to act unilaterally.)

Rather, my quarrel is with the media’s portrayal of what was in effect a publicity stunt. The media generally covered this story in a way that took advantage of the public’s general ignorance of law and legal procedure by making it sound as if some public court or tribunal — rather than a private law firm — had pronounced on the legality of the mayor’s actions. The core of the story is this: some guy hired a law firm to come up with an opinion supporting his point of view. That is, after all, why lawyers are called “advocates”; they advocate. The mayor could have done precisely the same thing Mihevc did if he were so inclined. Maybe he should have. In this sense, there is no story here. The opinion is in no sense binding. It is not a decision.

The real story here would be what Mihevc planned to do with the opinion he purchased (and we might ask, with whose money?). To date he has launched no properly legal proceedings against the mayor, and I doubt he will. In any case, I doubt that stopping the mayor by legal means was really his aim. Publicity was his aim, and he got precisely what he was looking for, thanks very much to the media’s predictably poor coverage and general incomprehension of legal issues (to be fair, this is a shortcoming of media generally, on the left and the right). Now the average Torontonian has the vague notion that Mayor Ford is some kind of autocratic despot, ruling by decree without council.

I find this ironic, given that many of those same left-leaning councillors who are crying foul over Ford’s unilateral decision-making were the same ones who were bleating for “strong mayor” powers to be given to David Miller, Ford’s leftist predecessor. Apparently strong powers are okay when it’s your guy wielding them.

Before closing, I have one last axe to grind on this story. The Toronto Star article I linked to above contains this howler of a quote from a rookie councillor who it seems is all the rage right now: “‘Nowhere was it written that the mayor has authority to unilaterally create transit policy for the City of Toronto,’ says centrist Josh Matlow.”

Well, Mr. Matlow, I’m sure that there are countless things that are not written down in any book on municipal procedure. The real question is whether it is written anywhere that the mayor cannot create transit policy (or in this case destroy it). It is interesting and somewhat ironic that a left-leaning councillor should appeal to a form of argument found most commonly among literalist US conservative legal scholars. The latter will argue that some policy or social program is unconstitutional because it is not explicitly written in the constitution. If the US Founding Fathers didn’t mention anything about a subway, then it is unconstitutional to build a subway. We rightly ridicule this form of argument when offered by a conservative. Why is it that we give it a free pass when it is offered by a liberal?

Incidentally, Mr. Matlow is no “centrist”, as the article claims. Look at his background and his record and you’ll see that he certainly leans in one clear direction.