The Letter or the Spirit?

June 1 st 1995

Tilia ameiicana L. Of the twenty or more species of the basswood family, only one grows in Canada: the linden tree. "The Indians wove strong tangle-free ropes from the long fibres in the bark." Nevertheless, the linden is held in low esteem. Despite his love for trees, Her Majesty's horticulturalist and arborist, an Englishman who had taken care of the gardens on the experimental farm in the centre of Ottawa—until he fell foul of the latest in the series of public service retrenchments—had nothing good to say about lindens, except that they were quite hardy, and therefore suitable for municipal sidewalk plantings in many parts of the national capital. Despite its lowly estate, for twenty-five years I had carefully nurtured the solitary linden on the side of the street in front of our home. Regularly watered, it was healthy, vigorous, and attractive. Five years ago the municipality had pruned it so that it had acquired a pleasing, well-balanced shape. It also helped to screen us from the busy street traffic. Other plants thrived in its shade.

Until an early morning in June when I discovered a municipal worker sitting among the higher branches after he had already lopped off—in a rough and ready fashion—most of the widely spreading limbs so that the lower half of the tree was completely bare. What was left was the equivalent of a small Christmas tree poised atop a sturdy trunk. A monstrosity.

I demanded to see the foreman in charge of the tree pruning crew, and to hear an explanation. Afterwards a smooth-talking inspector came. The explanation was simple. A rule book was wielded where it had been clearly stipulated that all horizontal branches of trees adjoining an Ottawa thoroughfare had to be eliminated to a height of four or five metres over the street (regardless of the size of the tree), and three metres over the sidewalk. In the latter case, so as not to obstruct the right of passage enjoyed by the eight-foot tall public servants of Ottawa.

Whether a tree actually interfered with traffic was beside the point. Whether a tree was disfigured and aesthetically ruined was beside the point. Whether a balance could be struck between the dictates of public safety and comfort and the dictates of good taste was beside the point. Whether such issues—and possible compromises—could at least be discussed with the citizens on the street was beside the point. Those in authority knew best. The rules were clear. Certainly the tree itself enjoyed no status. It had no rights.

"Black letter lawyers"

I had come across the same phenomenon in the early 1970s when, on behalf of a federal government department, I had hired a young Manitoba lawyer to give advice on the relationship between Canadian law and technological development. The consultant was to concentrate on the area of environmental protection.

His report made chilling reading. The legal brief concluded that Canadian judges had little feeling for inherent values. In the words of Greg Morley, Canadian judges were "black letter lawyers." Their interpretation of both fact and law was wholly literal. What else could be expected in a society whose sense of humour knew neither irony nor paradox? In any event, the judges—said Greg Morley—showed little imagination. For imaginative jurisprudence, it seemed, one had to turn to the judgments of someone like Lord Justice Denning—Master of the Rolls—who had succeeded in tempering the severity of precedent in English jurisprudence with common sense and compassion.

Such were the thoughts that passed through my mind when, a few days ago, I listened to Professor Ian Hunter of the Law School at the University of Western Ontario give an address in Ottawa on the subject of "Law and Justice." Professor Hunter explained that there were two main streams of thought in our legal tradition. The first was Athenian. In Athens, justice was the right ordering of society in obedience to rigid rules. The second, very different, tradition was that of the Hebrews and its extension through the teachings of Jesus of Nazareth. There, justice reflected righteousness, not correctness. Justice rested on a recognition of the uniqueness, the value and the inherent dignity of each of God's creatures. And although the Judeo-Christian legal tradition recognized that "the Lord loveth judgment," it also exuded humility, mercy, and forgiveness. Where mercy ruled, exceptions could be made. That was why Jesus often seemed to go against the law while insisting that He was in fact fulfilling the law.

In an important respect the latter tradition was inflexible as well. In the Athenian model the inflexibility lay in the rules themselves. But in the Judeo-Christian tradition the inflexibility lay in the imperative of obedience to the truth. Whether something was true, or respectful of the truth, was the operative principle. What governed—and what distinguished righteousness—was the spirit, not the letter. Where the spirit made alive—and respected life—the letter killed.

If life and truth are related, would we find a similar concurrence and concordance between the letter and the lie, the letter and untruth? In June 1974, Professor Laurence Tribe of Harvard wrote an essay in The Yale Law Journal under a strange title: "Ways Not to Think About Plastic Trees: New Foundations for Environmental Law." He recounted a recent decision by Los Angeles County officials "to install more than 900 plastic trees and shrubs in concrete planters along the median strip of a major boulevard." The artificial plants were to be wired to plumbing pipes, covered with plastic, and anchored in aggregate rock coated with epoxy. It was claimed that "much more can be done with plastic trees and the like to give most people the feeling that they are experiencing nature." Not only were those plastic trees dead. Not only were they disrespectful of nature. They were fraudulent. They embodied a lie. The plastic trees were also disrespectful of the people of Los Angeles, because they were calculated to make fools of citizens.

Disrespect for truth

Could it be that disrespect for God's creation, coupled with disrespect for truth, would also mark a society in which there is contempt for the dignity of persons? The contempt with which, in my own repeated experience and observation, Canadian judges dismiss "ordinary" people even in traffic and small claims courts? Contempt for people in the workplace, for example? Especially in bureaucratic workplaces—institutions where, almost by definition, the preservation of system and order and ruleboundedness and the preservation of appearances must, at all costs, take precedence over truth. How respectful of people are large private and public enterprises which, one after the other, suddenly discover a dire need to lay off 5,000 or 10,000 workers in one fling? Nobody doubts that—according to the letter of the law—the owners and managers of such organizations are fully entitled to put people on the street, even when the need for the measures can be directly attributed to a lack of foresight and planning, a failure to train employees for different jobs and careers—in short, where the real and proximate cause of the retrenchments is managerial incompetence of the highest order.

It would appear that in Canada, justice is increasingly subject to the literal mindedness of lawyers, judges, bureaucrat-politicians, and employers, albeit all operating in and under a system of "peace, order, and good government" in the best traditions of the well-ordered Athenian society. Even the expression of basic rights and freedoms—formerly enjoyed at common law—have been reduced to a written, constitutionally entrenched, and therefore inflexible, Charter.

Where there is order without justice, chopping can take place. Whether of a linden tree, a worker, or an unborn child, makes no difference. It will be lawful.

 

Dirk de Vos

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