Friday, June 17, 2005

Duel at

Here is a bit of a duel that I am involved with at The Volokh Conspiracy with Mr. Eugene Volokh himself, one of my favourite bloggers. This is the first post that started it all. Excerpt:

What changes might substantially increase birth rates in the developed world?

Here's my candidate: A combination of (1) cheaper, less painful, and more reliable egg extraction and freezing, which would let 20-year-old women routinely bank eggs for the future, and (2) the invention of incubators that can safely grow a child from a fertilized egg to a live baby. It's of course impossible to be sure that development 2 will happen within the next 45 years, but I suspect that it will. Let's say for our purposes that it does. Why is this likely to substantially increase birth rates?

I wrote this comment:

I cannot help but think that you are treating people like a commodity (reduce costs and increase demand).

I think a big barrier to childbirth is actually our culture, which cannot see why investing into another is more important than investing in one's self.

He then posted a whole different blog. Here is some highlights of that post:

Child creation is like a commodity in that if you reduce costs, you'll increase demand. Cost matters. Culture matters, too, of course. But even if you hold constant -- as a supposedly culturally dictated factor -- the amount that a person is willing to invest in a child, as the per-child decreases, the number of children in which the person is willing to invest increases.

Perhaps I'm mistaken, but my sense is that many people resist economic analysis because they find it distasteful: People shouldn't be treated like commodities (as if I'm suggesting that I be able to sell my wife on the open market). We should be paying attention to the grand plan of making people more unselfish rather than to technocratic matters such as cost and incentive (as if campaigns to make people unselfish have enjoyed notable success).

Yet these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature.

Finally, here is my response to that comment, which, I think, holds up decently, although it was written pretty quickly:

I was the one that made the original comment and question. I hesitated to post it because I hadn't the time for anything more detailed.

Although I could debate many of your points contra an economic analysis, I think it would be interesting to see how you would defend this statement: "(as if campaigns to make people unselfish have enjoyed notable success)."

I tend to disagree. I think that one of the defining characteristics of Western Civilization is a concern for other people, unselfishness, and a concern for the victim. I think those who find Christianity repelling fail to see that Christianity's contribution in this area far outstrips the track record in other civilizations. A concern for the victim (the other) is notably missing in ancient myths and other founding stories throughout the history of the world. To say that "grand compaigns", which attempt to make people more unselfish, are a failure, is tantamount to denying the power of one's moral values.

Western society has begun to not merely globalize economically, but also universalize the idea of compassion. When catastrophe's occur like the Tsunamai at the end of 2004, nations that are well off feel obligated to aid the victims. The "grand plan for making people more unselfish" is not a failure - it is a success story as long as Western Civilization. Thus, to say that making people less selfish is a pipedream, think again. Changing values are quite possible; they are not outside of human nature. Why can't an economic analysis account for it? I agree to the fellow who commented that "It's interesting, if typical for those trained in economics, to characterize what is a moral reaction as merely distasteful."

So, when you say that, "these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature", I have to disagree. People who have children do not simply rely on economics to decide on whether they will raise a child or not. Many people do so on the basis of their moral beliefs or their theology. Is it any wonder that religious families are the sole demographic which is sustaining the birth rate? Religious families have few abortions, many reject contraception, and are encouraged to have families.

Certain values diminish the economic analysis of childbirth substantially. Not only that, but my own experience leads me to believe that it is actually poorerfamilies which have more children than wealthier families. How can an economic analysis explain this difference?

Wednesday, June 15, 2005

Thoughts on Chaoulli and Principles of Fundamental Justice

I have been thinking a lot recently about Chaoulli v. Quebec, where the Supreme Court struck down a prohibition limiting one's access to private health care. Bear with me on this one.

I have now done a complete 180 degrees on the decision. Originally, I thought this was a good case of stare decisis, the courts following precedent -- namely R. v. Morgentaler.

I can safely say that I have done an appropriate amount of research to conclude that McLachlin's majority 3 is wrong, who decided the case on the basis of a Charter infringement of section 7, which reads that
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
If you want my thoughts directly on the Chaoulli case, scroll down a bit to the section where I explain the error in the decision.


What got me thinking was this comment by Mr. Jaworski:

'Fundamental justice' has not, from my limited knowledge of the court decisions, been interpreted as a procedural requirement.

I am now convinced that "principles of fundamental justice" does not actually produce a substantive restriction on these three rights. It merely provides a procedural restriction/requirement.

This distinction is absolutely crucial. A procedural restriction really means that the rules are followed in the deprivation of the right. ie. there are rules governing t-shirts.

If one believes that the phrase "principles of fundamental justice" ought to encompass substantive restrictions, that would address the content of those restrictions ie. this rule governing t-shirts says that yellow t-shirts are not allowed.

The problem I, and others, see with this clause as encompassing substantive restrictions , is that they are determined "arbitrarily." That is, by judges. Before 1985, s.7 was universally interpreted as being a procedural provision. This case was the turning point in s.7 jurisprudence:

The framers of the Charter obviously deliberately avoided the concepts of "natural justice" and "due process". There seems no good reason to restrict the principles of fundamental justice to procedural matters in light of the reference to the rule of law in the preamble.

The problem is that this interpretation of the Charter is flatly wrong. Not only does it break with common law and stare decisis, but it also violates the rule of law. Historically, the rule of law and the term "fundamental justice" was concerned with procedural fairness. I have a windfall of research to back up this point (available upon demand). The rule of law is directly in opposition to the wisdom of judges (or the rule of men). This is not fancy rhetoric. This cuts to the heart of the issue. Additionally, this interpretation is internally inconsistent with the Charter. Section 1 states that rights and freedoms are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." If this section limits rights, why be redundant and say it again in section 1, except clothe the limitation clause in different language?

If one interprets "the principles of fundamental justice" or "the rule of law" as being substantive, then the substance is a growing corpus of basis for judicial review that exists in the minds of judges rather than the public promulgated law. That is, rights are only restricted on the basis of what constitutes fundamental justice. Judges are free to expand and limit rights as they so chose, based on what constitutes the substance of "fundamental justice." Is this not neo-natural law/rights thinking clothed in the language of the law?

Clearly such expansions of judicial reach are reprehensible upon the basis of the rule of law. That is, judges can limit and expand rights on the basis of their definition of fundamental justice; this violates the legal maxim nulla poena sine lege, or that there be "no punishment without a law," or to put it more clearly, that the law must be clear and promulgated in order to guide one's behaviour. A definition of "fundamental justice" is nor clear or promulgated, since it resides in the head of the judge.

It appears as though the 3 majority justices (not Deschamps) relied on this clause in order to strike down the prohibition against private health care. The government was charged with arbitrary behaviour for legislating this prohibition. This, said McLachlin, offended the principles of fundamental justice:

Section 11 HOIA and s. 15 HEIA are arbitrary, and the consequent deprivation of the interests protected by s. 7 is therefore not in accordance with the principles of fundamental justice. In order not to be arbitrary, a limit on life, liberty or security of the person requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts.... Here, the evidence on the experience of other western democracies with public health care systems that permit access to private health care refutes the government’s theory that a prohibition on private health insurance is connected to maintaining quality public health care. It does not appear that private participation leads to the eventual demise of public health care.

First of all, I do not think it is relevant to look to other democracies to strike down a democratically elected law. Why democracies? Why not aristocracies? Why not Eastern democracies? The justices are not ruling on whether the law conflicts with the constitution. They are clearly ruling on the effect of the law compared to other laws around the world. This jurisprudence is clearly unacceptable. Why should other countries' laws dictate the interpretation of our Constitution/Charter?

Secondly, the issue clearly is being framed as a social quality issue. Thus, there is a need to cite empirical "evidence" which will show that the effect of striking the prohibition down will not be harmful. Courts sometimes have to do things which uphold harmful laws that are still deemed legal. This is because the Courts do not make policy - they merely determine whether two laws are conflicting and interpret the disagreement between them. Courts should not try to base their opinions on hypothetical effects of the rulings. Although they may cite the effects, I think it is improper to rest the case on such effects. Otherwise, such decisions are policy decisions of social science -- not law.

Third, the majority does not understand the definition of arbitrary. Here, arbitrary is referring to the "uniqueness" of the Canadian law. This does not make it arbitrary. What makes governmental action arbitrary is similar to what makes judicial wisdom (or activism) arbitrary--- when actions are unknowable or unpredictable ie. uncertain, it is arbitrary. That is, if government decides to throw people in prison who wear yellow shirts, that is arbitrary since people in yellow shirts did not have any forewarning with which they could conform their actions to. Arbitrary is not "unique". Rather, it is "unknowable" and unpredictable action without basis in law or rules.

Finally, the majority's decision to interpret the "fundamental justice" clause as substantive leaves an interesting hole in the law. It used to be understood commonly that government could deprive one's life, liberty and security of the person. It just had to do so with due process. That is, through the procedures and rules of a fair trial, objective judge, etc. The law can deprive life. Thus, capital punishment is actually compatible with this clause. But the way it is being interpreted now, as an issue of content, leaves much to be desired.

For if "fundamental justice" means that government can't interfere with the liberty of its citizens, how can it argue that prison imposes no inteference on one's liberty? Or whether large fines interfere with the "security of the person." Or whether tax interfere's with the right to "life."?
---Where do the limits of government begin and end? ----

And this is the problem with interpreting the s.7 clause as holding a substantive restriction. Unless there is a well defined and static basis for a restriction, any law is subject to the whims of judicial wisdom, or "activism."

Thus Chaoulli, in my opinion, was not rightly decided on the basis of the Charter, which allows security of the person to be stripped away (with due process). That is why I think that Deschamps perhaps did not rule on the Charter and the principles of fundamental justice. Maybe she believes the principle is procedural. Is this why she wrote this:?

The most obvious distinction is the absence of any reference to the principles of fundamental justice in s. 1 of the Quebec Charter.

The limitation of s.7 is thus replaced by s.9.1 of the Quebec Charter, which reads:

9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Qu├ębec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

Reading this makes it pretty obvious to me that the legislature is supreme here. They are the ones who get to set the limits of freedoms and rights. Particularily, they get to set the limits of the right to life, liberty, and security of the person. That limit was set by the prohibition of private care. The right to light is therefore not absolute, but "may be fixed by law."

Thus, it appears erroneous that the majority 4 struck down this legal prohibition on the basis of absolute right to life, liberty, and security of the person. This, in my view, is not logical or legal.

I therefore have changed my mind on the issue, and now side with the dissent.