Revanchist Review

Friday, August 27, 2004

Rosalie Abella's Fears are Not My Fears

As a member of a human family that saw the Holocaust, I feel I have gained the right to expect everyone else to share my fear of intolerance. - Rosalie Abella, repeated in various speeches.

I have been struggling with this statement of Justice Abella's for two days now. I truly do not want to read too much into it, but I keep coming back to the conclusion that this statement is a window into the heart and soul of Rosalie Abella.

Abella asserts that because of her accident of birth, she has gained the right to expect everyone else to share her fear of intolerance.

This is truly a remarkable assertion. We know nothing of the nature, character, or depth of her fear nor do we know what the consequences are for Abella when this fear grips her. We know even less of how she defines intolerance. Yet we are asked to bend our knee to her self proclaimed right to insist that we share her fear.

Now if she were Rosie Abella private citizen, I could say: "Rosie you need to expound further on this fear of yours because frankly I take seriously all human rights and I need to understand more about how you conclude that the circumstances of your birth have vested in you a right to expect me to share your fear of intolerance. How exactly have you gained this right other than through the consequence of birth?

And Rosie, I need to know why you felt you needed to qualify family as a human family. Are you aware of any other kind of family?

As for intolerance Rosie, I am intolerant of people who crash the queue at a bus stop, and I go out of my way to upbraid them for their rudeness. Does my intolerance frighten you? I am also intolerant of people who smoke in no smoking sections, people who say they scored 5 when I know they scored 6 on a par five. Does this frighten you?

I am intolerant of swindlers, liars, cheats, penny stock boiler room operators, pedophiles. As a Christian I think they are all sinners and I am intolerant of sin. I myself am a sinner, and I am intolerant of my own sinfulness. This leads me to seek forgiveness and to repent. In my private and corporate worship I acknowledge my sins and manifold wickedness and I seek to repent of my evil ways. Yet I continue to sin, and the cycle continues - this comes with being human. Does my intolerance of sin strike fear in your heart?

Also could you help me understand what role intolerance played in the Holocaust? I have always believed the Holocaust was the consequence of the unmitigated evil of anti-Semitism; an evil the German nation allowed itself to be enslaved to, an evil that is at the heart of our humanity, in the thrall of which we are all at risk of falling. Our human history is fraught with examples of the evil we inflict upon each other as individuals, tribes and nations. Intolerance seems to me to be another of those words whose true meaning has been hijacked by those who want to elevate disagreement to a higher moral plane.

And by the way Rosie, I was born into a family of dirt poor immigrant prairie farmers, whose grandparents escaped subsistence living and possible starvation to come to Canada. Does this give me the right to expect everyone to share my fear of hunger? I have friends who were born into Mennonite families who escaped the horrors of Stalinist Russia where starvation and a knock on the door by a communist soldier could spell death; do they have the right to expect everyone to share their fear of socialism?

Now if Rosie and I failed to come to agreement on those rights we each have claimed through the accident of our birth, or on the meaining of intolerance or fear for that matter, I expect we could as persons of good faith and intention, simply agree to disagree and our relationship whatever it was prior to the discussion, would continue unaffected.

Alas, Rosie is about to become one of 9 jurists whose role it is to interpret rights within the context of the Charter of Rights. Whatever Rosie might be able to persuade the majority of her fellow judges to accept as being in the nature of a right in law, will be a right no matter how much you or I disagree with it. That is until we succeed in electing a government that believes in governing and is not fearful of implementing the notwithstanding clause to remedy perverse judcial reasoning.

I believe she is saying that because she is Jewish and the child of Holocaust survivors, the enormity of the evil perpetrated against her family gives her special status both to discern the root of that evil which she calls intolerance and of which she is thus legitimately fearful, and the right to expect everyone to share her fear.

This strikes me as both muddled and dangerous thinking. First it appears to ignore the reality of evil in the hearts of men, and to attribute the Holocaust to intolerance, a terrible slander of a morally neutral word.

Second, it suggests that a member of a family that personally experienced the Holocaust is qualified not only to know the root cause of that genocidal evil, but also entitled to have everyone share in that belief. This ignores the reality of the fallen nature of all mankind, Holocaust survivors and their progeny included. Surely there are members of families who personally experienced the Holocaust whose opinion any person with an ounce of wisdom would dismiss out of hand. An accident of birth bestows no such exalted status as Abella claims for herself.

My fear is that Rosalie Abella brings to the Supreme Court a quick but uncalibrated mind. It is a mind that suffers from a degree of distemper as a consequence of a false understanding of the entitlement devolving from her birth to parents who survived the unspeakable horrors of Treblinka.

In short I fear Rosie Abella in her judicial reasoning will display little tolerance for the intolerance that must underpin any belief that "Canada is founded upon principles that recognize the supremacy of God and the rule of law." Since those are the words of the preamble to the Canadian Charter of Rights and Freedoms, there are serious implications for all Canadians if my fear is well founded.

Thursday, August 26, 2004

Rosie Abella, Paul Martin and Orestes Brownson

  • Rosalie Abella and the Liberal’s Failure to Govern

    One of the first surprising facts I learned about Rosalie Abella is how little time she spent actually practicing law. She was called to the bar of Ontario in 1972 and was appointed to the Ontario Human Rights Commission in 1975. In 1976 she was appointed to the Family Court of Ontario from which she took numerous leaves first to sit on the Ontario Labour Relations Tribunal, and later as the one woman Royal Commission on Equity in Employment. It was here she first displayed her creativity with the invention of the term “employment equity” another in a long list of euphemistic terms which belie their true meaning, in this case “reverse discrimination”. Her commission led to the ill-fated Ontario employment equity legislation, which was subsequently disbanded when its perverse consequences became all too obvious. Undaunted the federal Liberals passed the Federal Employment Equity Act, which while largely discredited remains in force.

    In 1989 she became Chairman of the Ontario Law Reform Commission and in 1992 achieved her penultimate goal by being appointed to the Ontario Court of Appeal.

    She now stands on the step of her final pedestal with her impending appointment to the Supreme Court of Canada.

    Prime Minister Paul Martin’s version of a more transparent process surrounding the appointment of Supreme Court justices devolved into the farce of Justice Minister Irwin Cotler appearing before a parliamentary committee to lecture its members on the perils of “politicizing” the process of judicial appointments. Accordingly, it seems we are left to our own devices to try and determine what might be some reasonably predictable consequences for Canadians from up to 17 years of Rosalie Abella seated on our highest court.

    One of the best ways to gain an understanding of a person is of course to meet with them and engage in conversation. The next best is to read what the person has had to say, in order to try and gain an understanding of what are some of the core beliefs and values that nourish the person’s intellectual and moral center. I have not had the opportunity to experience the former, though I think I met her on the steps of a house in Kitsilano we shared with one of her best friends, back in 1972 when we were both newly called lawyers. I am certain she is a bright, engaging, articulate, confident and ambitious woman. I am sceptical of her judicial credentials and concerned for the direction she will seek to steer the Supreme Court.

    There are few public figures about whom citizens should know more than a Supreme Court justice, yet the opposite is true. This is so because in both Canada and the United States “the public - under the tutelage of its moral and intellectual leaders – is being trained as regards the Supreme Court when it is interpreting the Constitution, to accept its rulings as if rendered ex cathedra, on questions of faith and morals.”[1]

    Since 1982 and the passage of the Charter of Rights and Freedoms, our ruling federal politicians, without exception, have deferred to the Supreme Court justices the role of interpreting what are the nature of rights that are to be protected, and what changes to our traditional institutions must be instituted to ensure our laws do not infringe upon Charter based rights. This has led to the phenomenon of un-elected and unaccountable (to the public) judges making rather than interpreting laws.

    During this same period Canada has come to be less and less recognizable as a nation whose laws and institutions are based on a belief in God, despite the direct references to that reality in both our national anthem and the preamble to the Charter of Rights. Still a significant majority of Canadians call themselves Christian and an even greater majority believes in the existence of God.

    A powerful and effective campaign to muzzle the expression of our beliefs in the context of how we are governed has put us even more at the mercy of our judiciary.

    Justice Abella, along with Justice Louise Charron will soon join the 9 member court. Who is she and what should we expect from her?

    I found the following quotes from various speeches made by Rosalie Abella over the past 10 years or so:

    To me there are no models of justice past or future. There is only justice.

    Justice is the issue. How do we get it, keep it, protect it?
    a) by protecting people’s dignity, humanity and freedoms.
    b) by laying siege to the culture of indifference in which we permitted ourselves to indulge, and replace it with a culture of commitment.

    I speak to you as someone with an idealized and romantic view of the power of law and of lawyers.

    How can we teach people to value morality when there is no reward for compliance and no punishment for its violation?

    Trials are too late. Trials are a response not a solution. Where injustice is preventable it should be prevented when first identified.

    As a member of a human family that saw the Holocaust, I feel I have gained the right to expect everyone else to share my fear of intolerance.

    The three speeches I found all made reference to her history as the child of two holocaust survivors born in 1948 in a displacement camp in Nuremberg. Her father was a lawyer and the only survivor of his family. Her parents also lost their 2 ½ year old son while in Treblinka. Her Jewishness, her sex, and her link to the Holocaust appear to have totemic significance for her.

    As a self proclaimed romantic when it comes to the role of the law and to the dominance in her professional career of matters related to the interpretation, protection and even creation of rights and so-called equity with respect to matters of employment, it is apparent that Justice Abella has a classic liberal philosophy that seeks to allow every individual to achieve his or her fullest potential, and to as much as possible protect everyone from the consequences of intolerance. “Dignity, humanity and freedoms” are the key. No doubt she also believes that education can solve most of society’s ills.

    Her assertion that there are no models of justice is puzzling. Surely it would have been useful to question her on this assertion, and to enlighten us with her interpretation of justice.

    Andrew Coyne reported on two of her decisions, each of which gives one pause to consider whether she can be depended upon to dispense justice wisely or at all. In Miglin v. Miglin she invoked the novel judicial principle that a final divorce settlement is never actually final, whatever the parties may have understood. In Barker v. Francis she ruled divorce courts could not find a child support award as “inappropriately” high. They could only find it “inappropriately” low. Both were overturned by the Supreme Court (at great expense to the litigants one must not forget).

    Let me illustrate with references to three other of her judgments, what might appear to many Canadians to be questionable decisions posing as justice:

    In April 1995, she decreed it was in a child's "best interests" for the custodial mother to remove the child to another continent (Australia), away from the father, who was resident in Canada, even though the father had faithfully made his support payments. This decision effectively denied the father access to his child. (This decision was overturned by the Supreme Court of Canada.)

Just one month later, in May 1995, Ms. Abella ruled that since anal sex is "a basic form of sexual expression for gay men," … that the provision in the Criminal Code that required the age of consent for such sexual activity be set at 18 years was discriminatory. She stated: (See Reality, July /August 1995, "Title of Article," p. 7): "Court Lowers Age for Homosexual Sex."

the provision perpetuates rather than narrows the gap for a historically disadvantaged group - gay men- it does so arbitrarily and stereotypically, and is, therefore, a discriminatory provision which infringes the guarantee of equality.

In 1998, Judge Abella was at it again, this time in the Rosenberg case, declaring that homosexual partners were "spouses" within the meaning of the Income Tax Act. As usual, she provided no reasonable or logical argument in her controversial conclusion and stated instead (See Reality, May/June 1998, "Courts Reject Traditional Values," p. 3):

… elected governments may wait for changing attitudes in order to preserve public confidence and credibility. Both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.

The last decision reveals the two most troubling traits I detect in Justice Abella – that of the judicial activist not content to interpret the law, but intent on making it. It also reveals a sense of morality far removed from the mainstream of the majority of Canadians (if the statistics on belief in God and Jesus is to be believed), but one firmly embraced by the cultural aristocracy of the news media, university faculties, and even now many churches.

One of the first cases Justice Abella will hear is the enormously important reference with respect to same-sex marriages. If one opposes any change to the definition of marriage from that of a union between one man and one woman, it seems impossible to be sanguine about the prospects of a favourable ruling from Justice Abella.

Our nation, and western culture generally is in a time of great moral confusion about sex and particularly about homosexuality. Pornography passes for art, the North American Man/Boy Love Association is actively working toward the end of removing the taboo against pedophilia (involving boys, not girls – a clever tactic of the degenerate crowd to beguile the muddleheaded liberal into thinking this is a meaningful concession). Polygamists, polyamorists and homosexual Boy Scout leaders eagerly await the next judicially inflicted tear to the fabric of what remains of the curtain of civilization that separates us from barbaric anomie.

The appointment of Rosalie Abella serves only as a lightning rod upon which to focus the distemper of our age. Our nation’s moral desuetude is only a symptom of a greater malaise. More important (for it is the nature of mankind to constantly lose its moral way) is the fact our government has lost its way. Our governors have forgotten what it means to govern, and we the governed have become apathetic, disillusioned, frustrated, angry and disaffected.

Mr. Martin would do well to read Orestes Brownson. [2]

“The nature or essence of government is to govern. A government that does not govern is simply no government at all. If it has not the ability to govern and governs not, it may be an agency, an instrument in the hands of individuals for advancing their private interests, but it is not government.

The assertion of government as lying in the moral order, defines civil liberty, and reconciles it with authority. Civil liberty is freedom to do whatever one pleases that authority permits or does not forbid. Freedom to follow in all things one’s own will or inclination, without any civil restraint, is license, not liberty. There is no lesion to liberty in repressing license, nor in requiring obedience to the commands of the authority that has the right to command”.

The Liberal government’s failure to govern is glaringly obvious in its refusal to assert its authority to forbid the erosion of the foundation of our society – the family – opting instead for license and not liberty. Its nomination of a woman with such a record of judicial activism as has Justice Abella, signals a continued refusal to accept the responsibilities of governance so eloquently described by Orestes Brown.

[1] William F. Buckley Jr.
[2] Brownson (1803-1876) covered all the bases in his spiritual journey. He was a Presbyterian, then a universalist, then a devotee of secular, utopian socialism, next a humanitarian activist, a militant atheist, a trascendentalist and ultimately a devout Catholic.

[3] The American Republic, Brownson, Orestes ISI Books, p 17

Monday, August 23, 2004

The Marriage Debate

Isn't it interesting that the controversy surrounding the polygamous community in Bountiful, BC., has elevated (if only slightly) the debate surrounding the judicially imposed change to the meaning of marriage. (Was the place called Bountiful before the polygamists took it over and they chose it for its name, or did they come up with the name? If the former, I wonder what kind of sect would take over places like Eyebrow or Elbow or Climax - real places in Saskatchewan - my imagination runs wild!)

Those who are at ease with opening up marriage to members of the same sex seem reluctant to accept that once that tear in the fabric of our civilization has been rent, there remains no logical argument to object to folks in "committed" polygamous or polyamorous relationships also being married.

As I read more and more history and philosophy it seems clear to me that what one age thinks to be progress, proves with the passage of time to be anything but. We seem now to be in an age where it is in vogue to say yes to every innovation. As David Hart puts it, "we live in an age whose chief moral value has been determined by overwhelming consensus, to be the absolute liberty of personal volition, the power of each of us to choose what he or she believes, wants, needs or must possess; our culturally most persuasive models of human freedom are unambiguously voluntarist".

All of which makes me look more favourably on conservatism as an affirmation of normality in the concerns of society. To determine what is normal, we must look beyond the self.

Your concern over what is happening in Bountiful emanates from something other than concern for your own well being.

Tuesday, August 10, 2004

What's That You Say Mr. Robinson?

  1. What’s That You Say Mr. Robinson?

    “This is not me” Svend Robinson assured Judge Fratkin, in his brief statement to the court prior to being sentenced for his admitted offence of theft of a ring with a putative value of $65,000. Leaving aside the matter of his poor grammar, it may come as a shock to Mr. Robinson and his supporters that indeed it was he who helped himself to the diamond ring and not his evil twin.

    There are a number of troubling aspects to the Robinson case. In the hope of not burdening my readers (are there any – you are a polite bunch as I have yet to see a comment posted concerning any of my essays) I will touch on only a few of them.

    First, I believe Judge Fratkin erred by giving far too much benefit to Mr. Robinson for the apparent suffering Mr. Robinson has already endured as a consequence of abandoning his candidacy for a 7th consecutive election to Parliament, and the supposed embarrassment and humiliation he has suffered for having bared a darker side of his humanity, and being shown to be a thief.

    As to the first point, only a terminal Pollyanna would believe that Mr. Robinson would not now re-enter the political ring, probably in the next election. The outpouring of sympathy and support for Mr. Robinson following his theft, from my reading more than trumped the opprobrium directed toward him. Even discounting the political nature of much of the praise and criticism, I would reckon Mr. Robinson’s enjoyment of life has hardly diminished as a consequence of this criminal act.

    I am always intrigued by the credit the Canadian judiciary gives to persons in high places when they fall from grace. The Canadian way is not to kick people when they are down, says Judge Fratkin. Fair enough, but why do we put up layers of foam padding to soften the blow for those in high places who stumble over the flaws of their humanity? Tall people often hurt themselves more than short people when they fall. That is natural and in nature tall folks take their lumps but also enjoy the benefits of greater height, which in other ways gives them advantages over their shorter brethren. People like Robinson want the advantages of height but without the accompanying risks.

    Mr. Robinson took sick leave from his duties as MP for which he was paid in one fashion or another and he was apparently well enough recovered to go on the tax payer paid junket overseas with all the privileges of a sitting MP, or formerly sitting, or formerly but now disabled MP – the appropriate mealy mouthed bureaucratese was doubtlessly used to cover the exigency. Hardly a terrible burden in my estimation. Contrast this to the consequence for any ordinary person, especially one in a position of trust, who found himself in Mr. Robinson’s loafers.

    But we are a kinder and gentler nation in Canada aren’t we? David Frum has an interesting essay in today’s (August 10, 2004) edition of the National Post where he contrasts the US legal system’s treatment of Martha Stewart to that of Mr. Robinson in Canada. Ms. Stewart in case you missed it is going to jail for lying. (there but for the grace of God go we all!) The underlying event about which she incautiously chose to dissemble to an SEC investigator apparently allowed her to avoid a loss of some $50,000 US by selling her ImClone shares before the public became aware of bad news that slashed the share price. Frum makes the point that in the U.S. the authorities exhibited unusual zeal in pursuing Ms. Stewart because of her notoriety and privileged position in society. Her fame worked to her detriment. In Canada there seems to be a much clearer convention in favour of “noblesse oblige”. It must be our French heritage.

    The other point I make with respect to the deference granted to Mr. Robinson, is the fact Judge Fratkin ignored Mr. Robinson’s prior conviction for criminal contempt of court for which he served 14 days in jail in 1994. Perhaps Judge Fratkin mentally noted this was purely a publicity stunt by the self-promoting Mr. Robinson, but if so he merely compounded the error of deferring to Robinson rather than taking notice of Robinson’s pre-existing propensity to thumb his nose at the law. Had he bothered to think about it, Fratkin should have taken this as a mitigating factor against Robinson’s “this is not me” defense.

    Which leads me to my final point. I can think of no more qualified person than Mr. Robinson to be the flag bearer for the movement against traditional values that has gained such ascendancy in Canada over the past 20 years. As such how fitting that he should rely on the classic excuse for his actions – “it was not me!” It was the stressed out psychologically fragile Svend not the “real” Svend who pocketed the diamond for my boyfriend. Apparently this stress was something that had been affecting Mr. Robinson for some time, and for which he was receiving some type of treatment prior to the theft. Judge Fratkin seems confident that Mr. Robinson will expunge his Mr. Hyde persona by faithful adherence to counselling sessions, and re-education – no need for admission of true guilt or a search for true repentance in Mr. Robinson’s world.

    Have Mr. Robinson’s loyal supporters considered whether this stress, which caused Mr. Robinson to act aberrantly in a Richmond auction house, may also have caused him to act aberrantly while in the House of Commons?

    I doubt it. Meanwhile, intelligent folks of a liberal persuasion like the playwright and author John MacLachlan Gray, can think of nothing better to opine on the Robinson case than a cryptic letter to the editor (dutifully published despite its vacuity) asking whether “in the past, say five years, has there been a single sentence handed down by a B.C. court that Sun readers deemed sufficient?”

    Here is the abridged version of the reasons I would have expressed as the sentencing judge.

    “Mr. Robinson in considering an appropriate sentence for the offence of theft of goods of a value in excess of $10,000 I make note of these factors:

    you came forward shortly after the crime and admitted your guilt, thus sparing the investigating authorities and the taxpayers needless expense. I find you did so as a result of having concluded you could not possibly avoid detection;
    you pleaded guilty thus avoiding the expense of a trial;
    you are a professional man and were at the time of the crime a member of one of the most privileged bodies in our nation, the House of Commons where you had served prior to this incident for 6 consecutive terms spanning 25 years, in fact you have had no other significant employment save that of member of parliament;
    the offence has no relation to your parliamentary duties;
    you claim to be, and were for some time prior to the crime, suffering from some mental condition for which you were receiving treatment. The Crown has chosen to agree to a statement of facts that does not inform me as to the details of the condition for which you are receiving treatment, but the Crown asks me to consider it as a mitigating factor in your favour, and accordingly I am bound to do so, though reluctantly;
    as a result of committing this crime you withdrew your nominating papers for the June 28th election, depriving you of the likely re-election to a 7th consecutive term;

    As a member of parliament you are one of Canada’s lawmakers, indeed you have gained recent notoriety as the mover of a bill passed by the last parliament known as Bill C250. Your position as a trusted member of Canada’s ruling class brings with it many privileges, and as you now realize, many responsibilities when your actions have offended against those laws you are pledged to uphold and defend.

    In your brief statement to me you asked me to accept that the person who committed the crime of theft “is not me (sic)”. I do not accept your contention, since to do so would be patently foolish on my part. The Svend Robinson before me is a multi-faceted human being – lawyer, parliamentarian, social activist, friend to many, and thief. The latter is but a part of the whole, but it is most decidedly you. My role is to determine what the appropriate sentence should be for Svend Robinson the thief, while giving appropriate weight and consideration to your other attributes, the many supporting submissions filed on your behalf, and to the most important aspect of all – the public good and the reputation of the administration of justice.

    Crown counsel properly emphasizes the seriousness of the offence as the maximum 10-year jail sentence suggests. He also points to the obvious degree of planning and forethought that went into this crime, the previous inquiries about rings for your partner, all undisputed evidence that gives little credence to any suggestion the offence was impulsive.

    Your counsel offers as countervailing argument, the severe but undisclosed psychological impairment under which you were and apparently continue to be suffering. I find the secrecy concerning your emotional difficulties peculiar. It is suggested that to reveal the details would subject you to ridicule and humiliation. Given your history of notorious and often outrageous behaviour in support of your political and social causes, your openness concerning your homosexuality and your annual participation in the Vancouver Gay Pride parade where embarrassment takes on a new meaning, it is difficult to imagine what the embarrassing nature of your condition could possibly be unless it were that you were about to renounce your homosexuality, become a Roman Catholic and join the Conservative party.

    I also take note of the fact this is not the first time you have appeared before the courts in this Province, a fact that is quite uncharacteristic for someone possessing the virtues and qualities enumerated by your many supporters all of which would seem to adumbrate your present status as thief.

    Disturbingly, your previous offence is for criminal contempt of court, suggesting to me an attitude on your part that you and your ideas and causes are somehow above the law. Your 25 years as an MP may explain much of that attitude. Nevertheless, I must add to the description of who is Svend Robinson, “one who has in the past been proven to be contemptuous of the law”.

    It would be easy for me to pluck from my pile of judicial platitudes comforting and quotable quips such as “few Canadians can be said to have contributed as much to the nation as Mr. Robinson in his more than 25 years of service as an MP”, or “as a well-known public figure, Mr. Robinson has suffered much from the humiliation of his fall from grace”, or “Mr. Robinson has already suffered much as a result of this crime by virtue of his high place in society”, or “here in Canada we don’t kick people when they are down”.

    But that would be easy, and it would not serve the administration of justice. I sit as a Judge of the Provincial Court. This is the court to which most ordinary citizens are exposed when they come into contact with the criminal justice system either as victims, accused or the body of supporters that each invariably brings with them to the process.

    The Provincial Court is the window into the soul of our judicial system, and I consider my role to be a difficult and humbling one. To serve as a gatekeeper to the rule of law when all the procedure and posturing is peeled away, is what keeps us from sinking into anarchy. The public must be confident that no matter what privileged position one occupies, that the law will indeed be blind, and a sentence will serve not only as an appropriate deterrent to the criminal at bar, but to others who may themselves be inclined to take advantage of their positions of trust and privilege.

    Your counsel asks me to grant you an absolute discharge on the strength of your previous character and your “it is not me” argument. It would have been refreshing if instead you had told me directly or through your counsel:

    "Judge I was greedy, I wanted to impress my partner with a lavish gift, but I was just too cheap to pay for it. I succumbed to temptation, I am a flawed human being, I am not above the law though I thought at the time I was. I don’t need counselling and I won’t insult your intelligence with psycho-babble or blame a fall I had 6 years ago for my dishonesty. I made a mistake and I am terribly ashamed and humbled by the recognition that despite all my privileges, I was able to cross the line and commit a criminal act. I need to rethink my world view as a consequence, since it is clear no amount of education or privilege or even counselling for that matter, was able to save me from the reality of who I am. I am truly sorry and I point to my otherwise law-abiding life, save for my foolish political grandstanding, as your assurance that this will never happen again."

    Such a statement, honestly and forthrightly given, would have persuaded me to accede to your request for a conditional discharge. However, in response to your actual submission which seeks to deflect personal responsibility and which is empty of any genuine remorse, I hereby sentence you as follows:

    I suspend the passing of sentence for a period of 24 months and place you on probation. I do not consider it appropriate that you should avoid a criminal record under all the circumstances. Conditions of your probation shall be as follows:

    You shall perform 500 hours of community service as directed by your probation officer;
    You shall submit within 3 months a 20,000 word essay contrasting the ideas and philosophies of Edmund Burke to that of J.S. Mill; and those of Scruton to Foucault;
    You shall continue to seek counselling and medical treatment for the medical condition you claim to have been a factor in the commission of this crime, and your professional advisor (s) shall file reports with the court each 6 months during the term of your probation reporting on the progress you have made;
    You shall keep the peace and be of good behaviour.

    Mr. Robinson you have been the recipient of much privilege arising from your status as a servant of the citizens of this country; you have contributed much to the public discourse (whether good or bad I leave to others to decide) concerning matters affecting the laws and social fabric of our nation; and you have suffered the humiliation of having the public catch a glimpse of your human frailty. I urge you to acknowledge responsibility for your actions, and to take all the necessary steps to turn away from situations where you may once again be tempted to offend against the laws of Canada.

    Such a judgment would of course be successfully appealed, I would be brought up for disciplinary proceedings and either relegated to traffic court or offered an early retirement, my offence having been to impose a punishment to fit the crime, with attendant reasons based on the reality of the human condition and not the thin gruel of post-modern secular thought. With a nice vested pension based on my $200K per year salary, I might be able to keep up to Svend in post-career lifestyle.
    And wouldn’t it have been fun to read the editorials in the Sun, Province and Globe and Mail.

Friday, August 06, 2004

Introduction to David Stove

I am forever grateful to a friend for directing me to the writings of David Stove. The late David Stove (1927-1994) was an Australian philosopher who spent most of his academic career at the University of Sydney. He retired early at the age of 60, disgusted with the winds of political correctness wafting through the Australian universities.

Stove’s writing is trenchant, witty, ironic, and refreshingly not politically correct. No “ism” is too large for him to take on and he does so with remarkable clarity for a philosopher. Feminism, racism, idealism – all are subjected to Stove’s rigorous logic and if in the end unconvinced by his argument, one nonetheless has been forced to think.

His is the only philosophical writing that has made me laugh out loud on several occasions as I read through the selected essays that make up the book, Against the Idols of the Age, an anthology of selections of Stove’s writing assembled by Roger Kimball.

Here is but one example from Stove’s debunking of some teachings of Thomas Kuhn.

"According to Kuhn, in its heyday every discarded scientific theory possessed the full integrity of what we now call sound scientific truth. To illustrate this, he asks: what mistake was made, what rule broken, when and by whom, in arriving at, say the Ptolemaic system? For most people Stove points out, this is not a difficult question. For starters there was the mistake of believing that the sun goes around the earth once every day. But Kuhn, impatient with the idea that “successive theories grow ever closer to…the truth, professes to find it “difficult to understand” what it might mean to call that system, or any other out of date theory, a mistake. As Stove observes, “You have to be very learned indeed to find things as hard to understand as Kuhn does”

For any of you with a streak of contrarianism coursing through your veins, the difficulties Kimball experienced in finding a publisher for this book, should make you want to read it even more. Here is how Kimball describes his experience.

I approached more than a dozen presses, commercial and academic, and was summarily rejected by them all, sometimes politely, sometimes not. The responses were divided about equally between quivering pusillanimity and furious outrage. One editor acknowledged that Stove’s work was “really well-written and provocative,” but concluded that Stove “simply gores too many oxen on too many subjects….Almost every academic press these days has room for twenty-seven varieties of Queer Theory, eighteen contributions to Cultural Studies, Post-Colonial Studies and other reader-proof versions of neo-Marxism as well as fifty-two examples of “Feminist readings of….(fill in the blank as desired). But anything that challenges these orthodoxies is automatically excluded. Stove himself remarked “our freedom of the press, except for really precious things like pornography, has greatly diminished in the last hundred years, and especially in the last twenty”

I encourage you to read Against the Idols of the Age. If you are unable to do so, you can at least expect to see references to it in future postings on this site.

Matters of Life and Death

I confess to being of an age where I am more frequently reminded of death as the lives of men and women I know, end. A generation of elders inexorably must leave ahead of us. For those who have lived long and fruitful lives it is natural and appropriate to celebrate their lives, and to share in joyful remembrance with all those still alive who have each been touched in some way by the life of the deceased.

The celebration is much more difficult when the life lost was too short. Friends, business colleagues past and present, and most tragically the young too often have their lives cut short. The crushing loss of the hopes and promise of a life not fully lived is difficult for all to bear, and the pain increases with the familial proximity to the deceased.

This is life as we all must experience it, seemingly arbitrary and unfair, yet we all know death is the final scene in the play of life.

I attended the remembrance service for a former law partner last week, one of those sad celebrations of a life too short. This brought me to the place where I was thinking about matters of life and death. Not surprisingly, my eye caught the title of an essay as I was thumbing through some back issues of First Things, looking for some inspirational and challenging reading.

Life: Defining the Beginning by the End is written by Dr. Maureen Condic, an assistant Professor of Neurobiology and Anatomy at the University of Utah. She is conducting research on the regeneration of embryonic and adult neurons following spinal cord surgery.

I urge you all to read it. Here is the URL, sorry I haven't yet figured out how to make this a link you can just click onto. Cut and paste it into your Explorer window and you should access it.

Let me try to summarize it fairly for those who want a preview. She begins by asking what defines the beginning of life, a question that has been the matter of considerable legal and social debate over the years. She writes from an American perspective, but her arguments are perhaps even more cogent for us in Canada where we have no law whatsoever governing the definition of the beginning of life, and as a consequence we have abortions being performed daily throughout Canada, the decision for which ultimately rests solely with the expectant mother. The subjectivity of such a decision is one that troubles many.

Dr. Condic establishes the polarities of answers to the question. On the one extreme arethose who argue that life begins at conception, and on the other those who argue that babies are not considered fully human until a month before birth. (This latter position I initially discounted as likely emanating from some weird cultic character, or someone who believes in flying saucers, but rather it is the position of a professor of Bioethics at Princeton University, Peter Singer. Hard to imagine paying $45,000 US to send your kid to Princeton to learn this stuff!) I digress.

She surveys the legal and medical issues, which have produced relative certainty in our Western society with regard to the moment when life ends. The principles upon which the conclusion was arrived at were medical and scientific, and through their application there appears to have been reached a conclusion that is also satisfactory to the majority of religious denominations and ethicists.

Her conclusion is that the medical and legal definition of death draws a clear distinction between living cells and living organisms. “Organisms are living beings composed of parts that have separate but mutually dependent functions. While organisms are made of living cells, living cells themselves do not necessarily constitute an organism. The critical difference between a collection of cells and a living organism is the ability of an organism to act in a coordinated manner for the continued health and maintenance of the body as a whole. It is precisely this ability that breaks down at the moment of death, however death may occur. Dead bodies may have plenty of lives cells, but their cells no longer function together in a coordinated manner. We can take living organs and cells from dead people for transplant to patients without a breach of ethics precisely because corpses are no longer living beings. Human life is defined by the ability to function as an integrated whole--- not by the mere presence of living human cells.”

This all makes sense to me, and her argument is built purely on a scientific and medical foundation, sparing us all from the distractions of the spiritual and metaphysical, which too often clouds one's reasoning.

Dr. Condic now turns to the question of when does life begin, and posits an intellectually persuasive argument that the nature of death as the demarcation of life’s end, should provide us with the answer to the nature of life’s beginning.

She illustrates that “embryos are not mere collections of human cells, but living creatures with all the properties that define an organism as distinct from a group of cells; embryos are capable of growing, maturing, maintaining a physiologic balance between various organ systems, adapting to changing circumstances, and repairing injury… Embryos are in full possession of the very characteristic that distinguishes a living human being from a dead one; the ability of all cells in the body to function together as an organism, with all the parts acting in an integrated manner for the continued life and health of the body as a whole.”

Turning directly to the question of when does life begin she says that “despite the apparent diversity of views regarding when human life begins, the common arguments thus reduce to three general classes (form, ability and preference), all of which are highly subjective and impossible to reconcile with our current legal and moral view of postnatal human worth.

The form argument is the most intuitive. Simply put to be human something must look human. This argument asserts that human life is worthy of respect based on appearance. This she concludes is disturbing and is a trivial and capricious basis for assigning human worth and can only be applied with considerable injustice.

The ability argument is based on the ability to function as a human being. She canvasses the distinctive functions humans have – self-awareness, reason, language, all gradually acquired. This argument she concludes says human worth is gradually acquired. (This must be the intellectual hat rack the Princeton professor uses for his argument). The viability test is a subset of the ability argument. This argument she suggests is less superficial than the form argument, but is no less problematic. The functional arguments have repeatedly been rejected in determining death, partly due to their arbitrariness. “Human rights are not meted out according to performance” seems to say it best.

The preference argument is based on the extent to which the parents desire a child. Less elegantly put it is the woman’s right-to-choose mantra, which now rolls easily off the tongues of pro-choice advocates including our own Prime Minister. Stripped of its sloganism this says to the embryo – “you are a human being because I choose to view you that way”. If nothing else this is fundamentally arbitrary.

“All three of these arguments - form, ability and preference - are highly subjective and impossible to reconcile with current legal and moral views of postnatal human worth,” concludes Dr. Condic. The subjectivity and inconsistency of each makes them unsatisfactory as a basis of legislation on human life.

Dr. Condic now turns to the living organism concept from which science and law have been able to agree on the terminus of life, to provide the answer to the origin. “Unlike other definitions, understanding human life to be an intrinsic property of human organisms does not require subjective judgments regarding quality of life or relative worth.”

I found her conclusion persuasive – that a definition based on the organismal nature of human beings acknowledges that individuals with differing appearance, ability and dersirabilty are, nonetheless, equally human. “It is precisely the objective nature of such a definition (compared to the vague quality of life assessments) that has made organismal functions so compelling a basis for the legal definition of death.

“Arguments that deny human status to embryos based on form, ability or choice can be readily turned against adult humans who have imperfect form, limited ability, or who simply constitute an inconvenience to more powerful individuals or groups. She quotes Abraham Lincoln who made this very point regarding arguments put forth in his day to justify slavery:

"It is color then; the lighter having the right to enslave the darker: Take care. By this rule, you are to be slave to the first man you meet with a fairer skin than your own.
You do not mean color exactly: You mean the whites are intellectually the superiors of the blacks, and, therefore, have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet with an intellect superior to your own.
But, say you, it is a question of interest; and, if you can make it your interest, you have a right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you."

As Dr. Condic remarks, “postnatal humans run very little risk that embryos will someday organize politically to impose restrictions on the rights of the born.” Hence, we need not fear an uprising as did the slave owners.

Nonetheless, if Canada truly is a nation that prides itself on our protection of “fundamental human rights”, then surely we have an obligation to spend some intellectual energy to consider the meaning of the “human life” whose rights we are eager to protect.

The brilliance of Condic’s argument is that it is based on science and not morality. I say this not because I deny the value of morality, but because I know from experience how quick critics are to make the argument that those who oppose an unfettered “right” to abortion do so only from a moralistic and self-righteous perspective. These critics fail to recognize that an argument can be sound on both scientific and moral grounds.

The deaths of 40 million fetuses in America since Roe vs. Wade (and presumably a number in Canada proportionate to our smaller population) surely should give every Canadian pause for reflection on both the scientific and moral health of the society into which those human beings were prevented from being born.

If we reflect upon Dr. Condic’s reasoning with intellectual vigour, and if we conclude she is right, then we should act even in the face of the pressure that will be put on us to remain silent. It is a terrible and shameful silence that is wrought from fear or intellectual laziness.