Centre Article: Democracy and the Montreal Swinger's Club Case

January 4, 2006

What directs the course of a nation? Is it merely majority will of either the parliamentary or judicial benches? What, in turn, guides that majority will of bench or government? Is ruling simply the exercise of raw power or is such power directed to a shared purpose or some kind of moral vision? If "harm" is erected as a useful guide we might well ask "harm to whom, by whom and in relation to what?" For, like beauty, harm is sometimes in the eye of the beholder and those who do wrong assert frequently that it causes no harm when those who think it wrong measure harm in other ways and believe that harm has been done. Harm then, like democracy, needs something against which to measure it. Standing abstract and by itself it is insufficient.

There will be occasion here on this site and in the Centre's LexView, in the near future, to discuss in greater detail the recent "Montreal Swinger's Club" decision of the Supreme Court of Canada, R.v. Labaye (December 21, 2005).

What do we actually mean by democracy anymore? It is common now to hear people endorse democracy with a wide and windy confidence. They assume that simply having a system that appears to give everyone the opportunity to vote every few years means all is fine with the state that uses this system.

To say that a country is "free and democratic" makes such people hum like bees newly filled with honey. This is, however, a dangerous approach to an important and complicated idea. Democracy is one of those things philosophers speak of as "necessary but not sufficient." Like technology, democracy cannot be, in a sense, its own guide.

It is a process and the contents and end toward which the whole thing is focused lie elsewhere. If we lose sight of the contents or articulated ends then there is no ability to judge the processes according to whether they are "right" or "wrong" or "improving" or "declining" because these standards, being moral, are external to the processes themselves. More than that, there is going to be a lack of passing on what is necessary to maintain the established systems. That is our condition and our current peril.

The order of politics, like those of law or education, is like an ocean liner. Once moving in time and having set certain practices in motion, it can continue for a time on what amounts to its own momentum. The whole of a society is like that including its subsidiary aspects such as the state. But at some point it is drift not self-powered direction towards a determined end that gives each separately and all together their continued movement and the illusion of control.

It is difficult to pin down exactly the moment (if there even is just one) when systems move from purposive direction to drift. It seems clear, however, from all sorts of signs, that we are well into that phase at the moment in each of the areas just mentioned (politics, law and education).

Ours is an age that loves its processes but is increasingly unclear why we have them or what moral framework holds them in place; yet the respect for a certain sort of democracy is a moral vision not sustained merely by democracy itself. When we have reached the politics or legal analysis of drift, however, people can tend to think that the processes themselves are self-sustaining: they aren't.

Democratic processes and politics are no guarantee, in themselves, of a democratic state continuing on the course(s) necessary to the kind of freedom that maintains civil society. Similarly, legal processes are not, by themselves, self-sustaining. The law must be judged as "good" or "bad" beyond the mere formal processes of legal rulings. This debate, between positivism and "natural law" is an old one and the commonplace of law school jurisprudence courses. It would seem, however, that certain aspects of this discussion need to be re-understood by contemporary judges.

Law and morals are necessarily related otherwise why is there a moral obligation to obey the law? To set the law free of such obligation by endorsing formal conceptions of law as process is to make law incoherent. Criminal Law too, as the Law Reform Commission of Canada said in its 1973 study Our Criminal Law, is a "moral system". One separates law and morals to the peril of both and setting out the proper boundary of law and morals (for not all immoral things ought to be the subject of laws) is always a difficult task calling for the exercise of great learning and prudence. To abandon a moral vision entirely is a disastrous mistake. I very much fear we are heading in that direction.

Some years ago, Jacques Maritain wrote a book entitled Primauté du Spirituel (English transl. J.F. Scanlan, as The Things that Are Not Caesar's, London: Sheed & Ward, 1930). In it he included an appendix giving three meanings of the word "democracy" (pp. 131 – 133). Those interested may locate his analysis there. The purpose of this short article, however, is to make the observation that a slavish devotion to democracy without more is bound to fail in the end as it cannot sustain the kinds of civic sentiments necessary to maintain itself. This view, in the sufficiency of simply the Sovereign Will of the people, Maritain quotes as the third, the Rousseau kind of democracy; which Maritain refers to as "political pantheism" and views as a "religious myth".

This view of democracy is, in short, a belief system, vying with other belief systems for dominance.

Now this kind of observation has been made by many people in many different settings and is not new. It needs restating however when, as now, the moral horizons of our democratic project seem to be occluded by a fog or smog of well-intentioned vacuity.

In the Labaye legal decision, referred to above, the moral conception of citizenship has been virtually obliterated by recourse to a "harm principle" of such open-endedness as to be essentially useless—a fact noted by the two dissenting judges. In this case, dealing as it does with the court's role as what used to be known as custos morum (the guardian of morals) we are forced again to look at morals, law and the limits of democracy itself. But that is for another day. First is the general problem of placing too much stock in the general processes of democracy, or, as we could put it more succinctly, "democracy on its own".

In a passage written many years ago that addresses the dangers of attempting to make of democracy a form of imminent religion the Dominican philosopher and theologian Réginald Garrigou-Lagrange (1877-1964) warned:

Democracy, lawful in itself may degenerate into democratism, into a kind of religion which confuses the order of grace and the order of nature or tends to reduce the supernatural truth of the Gospel to a social conception of human order, to transform divine charity into philanthropy, humanitarianism and liberalism.... [This] democracy-religion ...completely falsifies the idea of the virtue of charity and at the same time that of virtue indissolubly bound with justice. (Quoted in Jacques Maritain, The Things that Are Not Caesar's (London: Sheed & Ward, 1930) pp. 152-53.

It would seem that the time is right to call for a rethinking of certain basic relationships. Law and Politics must get over their current metaphobia (fear of metaphysics) and begin to ask again the central questions about the relationship between power, morals and the common goods of society.

If this does not occur, serious harm will come to all of us, including those who no longer have a meaningful measure of what "harm" entails.