Excavations


... nothing is more essential to public interest than the preservation of public liberty.

- David Hume



Saturday, April 27, 2019

Revising Descartes: Is scientific man ‘lord and master of nature’ in an era of climate change?


For they made me see that it is possible to achieve knowledge which would be very useful for life and that, in place of the speculative philosophy that is taught in the Schools, it is possible to find a practical philosophy by which, knowing the forces of actions of fire, water, air, the stars, the heavens and all the other bodies that surround us, as distinctly as we know the various crafts of our artisans, we should be able to use them in the same way for all the applications for which they are appropriate, and thereby make ourselves, as it were, the lords and masters of nature.[1]

Descartes, Discourse on Method (1637).



[1] René Descartes, Discourse on Method and Related Writings, tr. Desmond M. Clarke (Toronto: Penguin, 1999), p. 44. [Part 6].

Monday, April 22, 2019

Montesquieu on Quebec’s Secularism Bill 21


Here is an excerpt from Montesquieu’s Persian Letters (1721) – a satirical narrative of two Persians who travelled to Europe and what they learned there.  Letter 85 explains Montesquieu’s position on religious intolerance and is a thinly-veiled criticism of Louis XIV’s ‘zealous’ act in his Revocation of the Edict of Nantes in 1685, which forced Protestant Huguenots to flee France in large numbers, who became the modern world’s first ‘refugees’.  Perhaps Quebec’s CAQ government needs to consult with the wisdom of Montesquieu before implementing its Secularism Bill 21, as backed by the so-called ‘constitutional’ use of the Notwithstanding Clause.

Letter 85
Usbeck to Mirza, at Ispahan

Once, as you know, Mirza, some of Shah Suleiman’s made a plan to force all the Armenians in Persia either to leave the kingdom or to become Muslims, in the belief that our empire would be contaminated as long as infidels remained within it.

  It would have put an end to the greatness of Persia if blind religious piety had had its way on this occasion.

     Nobody knows why the plan came to nothing. Neither those who made the proposal, nor those who rejected it, foresaw the consequences; it was chance that took over the functions of reason and good government, and saved the empire rom a danger greater than if it had been defeated in battle and suffered the loss of two towns.

     To have proscribed the Armenians would have meant wiping out in a single day all the businessmen and almost all the skilled workers in the kingdom.  I am sure that the great Shah Abbas would sooner have had his two arms cut off than to have signed such a decree, and that in sending his most highly-skilled subjects away to the Mogul and other Indian kings he would have felt as if  he were presenting them with half his territory.

     The persecution that our Muslim zealots have inflicted on the Gabars have forced large numbers of them to emigrate to India, causing Persia to lose a nation which was dedicated to agriculture: they were the only people capable of doing the work necessary to overcome the sterility of our soil.

     All that the zealots needed to do was to strike a second blow and wreck our industry, thus ensuring that the empire fell of its own accord, and with it, by inevitable consequence, that same religion whose growth it was intended to encourage so vigorously.

     Assuming that we should reason without prejudice, Mizra, I think it just as well for there to be several religions in a state.

     It is noticeable that the adherents of a tolerated minority religion normally make themselves more useful to their country than the adherents of the dominant religion, because they are disqualified from high office and can distinguish themselves only by having money and possessions; they are therefore likely to work to work in order to acquire these things, and will undertake the most ungrateful social functions.

     Furthermore, since in every religion there are precepts which are useful to society, it is well that they should be obeyed with enthusiasm, and what is more likely to encourage this enthusiasm than a multiplicity of religions?

     They are rivals which forgive each other nothing.  This emulation influences even private individuals: everyone is on his guard, afraid of doing something which would dishonor his side, and expose it to the pitiless contempt and criticism of the other side.

     That is why it has always been observed that the introduction of a new sect into a society was the surest method of remedying all the defects of the old one.

     It is no use to say that it is not in the king’s interest to allow more than one religion in the state.  Even if every religion in the world gathered together there it would not do him any harm, since every single one of them commands obedience and preaches respect for authority.

     I admit that the history books are full of religious wars; but it should be carefully noted that these wars are not produced by the fact that there is more than one religion, but by the spirit of intolerance, urging on the one which believed itself to be dominant.

     It is this proselytizing spirit that the Jews acquired from the Egyptians and which from them passed like a nation-wide epidemic to the Muslims and the Christians.

     It is in sum a spirit of dizzy madness, the spread of which can only be regarded as the total eclipse of human reason.

     For after all, even if there were no inhumanity in doing violence to other people’s consciences, even if it produced none of the bad effects which flow from it in thousands, one would have to be out of one’s mind to think of the idea.  Someone who tries to make me change my religion does so only, I presume, because he would not change his own, even if attempts were made to compel him; so that he finds it strange  that I will not do something he would not do himself, perhaps not eve to be ruler of the world.[1]

Montesquieu, Persian Letters (1721)



[1] Montesquieu, Persian Letters, tr. C.J. Betts (Toronto: Penguin, 1973), pp. 164-166.

Saturday, April 6, 2019

Jody Wilson-Raybould: The 17-minute tape and a “recovery of intentions”


Former Attorney-General Jody Wilson-Raybould’s 17-minute taped conversation with the Clerk of the Privy Council, Michael Wernick, on 19 December, 2018, while she was in Vancouver - without a secretary - and he in Ottawa, raises questions of intentions and consequences.  The political scientist and intellectual historian, Quentin Skinner, delves into the “recovery of intentions” in his landmark essay “Meaning and understanding in the history of ideas”, and I shall attempt to borrow some of his analysis here.[1]

The tape recording begins with Jody Wilson-Raybould speaking at times slowly:  “SNC”, “DPA”, and it shows much more consciousness, or self-consciousness, with statements clearly made and intended for the record: “I feel  uncomfortable having this conversation …”.  Then what is her intent?  Aide-memoire (as she claims) or is she collecting evidence?  Skinner can be used to explain: “It is true that unless I do perform the action or solve the problem which I intended to do, then it can never be known what my problem was – for there will simply be no evidence.”[2]  In other words, Jody Wilson-Raybould faces what she considers to be a problem, so she collects evidence towards her case in order that it be recognized. To further the point: in taping she is acting in a forensic capacity as Canada’s top Attorney-General against the unsuspecting top Civil Servant.

Michael Wernick is speaking without self-consciousness, is not truly aware that he is potentially crossing any lines, is not intending to violate “the spirit of the laws” (as Montesquieu would have it) and certainly is not speaking with criminal intent. Rather, he is communicating the Prime Minister’s position and in a frank manner with a suggestion of reconciliation, which he repeats: (“I respect where you’re coming from“ and ”I understand where you’re coming from”).  The Prime Minister’s stated intention is to save jobs and to use “tools” such as the Deferred Prosecution Agreement (DPA) – not to force a “Saturday Night Massacre”, as Jody Wilson-Raybould decodes (or rather seems to anticipate) in her Attorney-General mode of heightened consciousness.  However, to borrow a caveat from Quentin Skinner again: there may have been an “intention in trying to do something” but the results – not necessarily a Massacre - were unsuccessful.[3] It would appear that Wernick may have been trying primarily to raise the possibility of getting an outside legal opinion, namely that of the former Chief Justice of the Supreme Court, Beverly McLaughlin, but the mere suggestion would have implied (to Wilson-Raybould) that her own competence was being questioned, an unintended consequence. Here we get to a general problem of miscommunication, a mismatch of what is on one radar screen and not on the other: she expressly uses the words “constitutional principle” and “integrity of the Prime Minister” - not “criminal” or “illegal”, although she declares early on in the tape that “we’re treading on dangerous ground”. Wernick does not appear to register (or take seriously) Wilson-Raybould’s full forensic meaning – despite his statements (quoted above)  - as she draws in her mind comparisons between perfidious Nixon and so-called ‘Just’ Trudeau, otherwise Wernick would most likely have followed up with the Prime Minister – and immediately so.   In other words, she may have misjudged Trudeau’s intentions, while transfixed by the idea of a Massacre, which turned out to be a myth.

Had he been made aware of the fact that the conversation was being taped it is rather self-evident that Wernick would have chosen his words more carefully, would have been less repetitive about the Prime Minister’s wishes – and he most certainly would have ‘gotten back’ to the Prime Minister about the call, despite the fact most people were going on Christmas break in the days that followed. In other words, Jody Wilson-Raybould had the upper hand all along.  But the irony was she did not succeed in getting through to the Prime Minister (odd for a person who ‘speaks truth to power’): the unintended consequence of the recording was that nothing really happened – until the leak.  She resigned after she had been shuffled from her Cabinet post not knowing her conversation of 19 December had not been forwarded to the Prime Minister, according to Wernick’s lawyer.  What originally appeared as an aide-memoire for Jody Wilson-Raybould, could have been useful as an aide-memoire for Michael Wernick: pity he too did not record the call.

But the tape recording as received by the Prime Minister - and the Liberal Party - was quite different from what Jody Wilson-Raybould intended. [4]  If Jody Wilson-Raybould only intended to offer convincing evidence of political interference in the SNC-Lavalin case (and there is an element of doubt as to the singularity of her intentions), she also offered convincing but unintended proof that she was no longer a colleague.  As Monty Python puts it: “No one expects the Spanish Inquisition!”  But that’s just what was brought on, with the eyes of the media and Opposition examining every resignation, every shred of evidence in the controversy for two solid months since the story was first leaked to The Globe and Mail on 7 February.  And one reason why this controversy dragged on even longer than it needed to was because the Prime Minister was secretly negotiating for a truce with Jody Wilson-Raybould, who appears to have been unable to curtail her stipulations, according to news leaks.  The early news leaks made her a hero – none of them implemented by her, according to Jody Wilson-Raybould’s statements; later ones were intended to sully her reputation, not all of them appropriate.
 
Now what?  The Liberals are down in the polls, and there’s a federal election in six months’ time: Advantage Andrew Scheer and the Conservatives!  Today Jody Wilson-Raybould is a national icon for Indigenous Peoples and considered a valuable role model for women, along with Dr. Jane Philpott who resigned in protest, as well, only to be later booted out of Caucus.  But, given the Opposition’s first incarnation under Harper, all does not bode well: what will the Conservatives do for Reconciliation?  What will they do for Climate Change, with four (read: “provincial”) Premiers lining up against the Carbon Tax, alongside Scheer?

Jody Wilson Raybould’s full forensic approach to her role as Attorney-General was intended to throw light on her perception of interference, however unwitting by Wernick. Irony rules in politics (and war) and consequences have since well surpassed the plan to tape, for as the well-trod saying goes (and this could apply to Trudeau too) “the road to hell is paved with good intentions”.  It is not just hell for the Liberals that I am concerned about, though: it is hell for all Canadians as the climate warms, while the Conservative refuse to stand on guard and protect our environment.

Since the story broke the Liberals under Justin Trudeau have been considered – by the Opposition, the media, and the public – as a government of weakness and constitutional illegality.  While some among the Trudeau team may have temporarily muddied “the spirit of the laws” - Montesquieu’s trinity of the legislative, executive and the judiciary - I humbly suggest that Harper was far worse with his habit of proroguing Parliament at length when it suited him most.  In the very same chapter where Montesquieu’s trinity is first discussed, he also warns: “If the legislative body were not convened for a considerable time, there would no longer be liberty.”[5]  Who among the Conservatives dared to ‘speak truth to power’ then?  











[1] Quentin Skinner, “Meaning and understanding in the history of ideas,” in Meaning and Context: Quentin Skinner and his Critics, ed. James Tully (Princeton: Princeton University Press), p. 64.
[2] Ibid., p. 65.
[3] Ibid.
[4] David Wootton, Power, Pleasure and Profit: Insatiable Appetites from Machiavelli to Madison (Cambridge, Mass: Belknap Press, 2018), p. 65.
[5] Montesquieu, The Spirit of the Laws, eds and trs. Anne Cohler, Bascia Miller, Harald Stone (New York: Cambridge University Press, 1990), p. 151.

Friday, April 5, 2019

Montesquieu on the SNC-Lavalin controversy


Below is the first full articulation of the idea of separation of powers as expressed in Montesquieu’s aptly-titled The Spirit of the Laws (1748).  Very much an Enlightenment concept, yet also inspired by Augustine and belief in the the Trinity – in this case, the legislative, the executive, and the judiciary– the idea made its way into the American Constitution.  As Montesquieu explains, it is at the basis of constitutional notions of political liberty.

With respect to the raging SNC-Lavalin controversy, however, Montesquieu’s thinking does not quite explain why the Director of Public Prosecution (DPP) does not take up the Deferred Prosecution Agreement (DPA) with SNC-Lavalin.  Is it precisely because the Liberal government under Justin Trudeau created the DPA so the Montreal-based firm (based in Trudeau’s own riding) could escape criminal charges?   Jody Wilson-Raybould’s recorded conversation with the Clerk of the Privy Council, Michael Wernick, seems to suggest something here.  Is this one of the problems of ‘appearances’? But why can other countries use the DPA – and Canada not?

At any rate, here’s Montesquieu with historical and constitutional support for Jody Wilson-Raybould’s case for ‘prosecutorial independence’:

     Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.

     When legislative power is united with the executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch that makes tyrannical laws will execute them tyrannically.

     Nor is there liberty if the power of judging is not separate from the legislative power and from executive power.  If it were joined to legislative power, the power over life and liberty of the citizens would be arbitrary, for the judge would be the legislator.  If it were joined to executive power, the judge would also have the force of an oppressor.

     All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers that of making the laws, that of executing public resolution, and that of judging the crimes or the disputes of individuals.
[1]

Montesquieu, The Spirit of the Laws (1748)




[1] Montesquieu, The Spirit of the Laws, eds. and trs. Anne Cohler, Basia Miller, Harold Stone (New York: Cambridge University Press, 1990), p.p.157.