On Harper's Mentor (Thomas Hobbes), Law and the Supreme Court

In a recent Globe and Mail article, columnist Lawrence Martin suggests that Harper’s “chief negator” is the Supreme Court – not the NDP or Liberals.[1]  While this is true a few broader (and some more of Hobbes’s philosophical) points are worth mentioning.  One is the fact that, thanks to Pierre Trudeau, we have a written Constitution, which now guides the Supreme Court in its decisions.  Originally conceived to prevent abuses of power in the provinces, it also now works to restrain “provincial” leaders at the federal level.

Another point is that Harper’s attitude to law is much different from his predecessors, who previously counted on the legislative and judiciary to do their business without improper browbeating by the executive.  Harper is not only being “excessive” and “unprecedented” in his run-in with the Chief Justice of the Supreme Court, for which there has been no apology, he takes his cue from Hobbes, whose profound influence on our Prime Minister’s political thought is discussed elsewhere in this blog.[2]

 

Hobbes contends that law is a matter of sovereign decision-making alone: “law, properly, is the word of him, that by right has command over others.”[3] In other words there is little place for the Supreme Court in Harper’s intellectual framework, a feature which dates the Prime Minister more than it does Hobbes’s Leviathan, published in 1651 during the wake of the English Civil War. Hobbes also had no place for precedent and no regard for ancient law, so the Magna Carta figures little in his works, creating intellectual space for Harper to ignore its 800^th anniversary next year.[4]

Hobbes essentially argues that law has no special virtue because of it existing over time; it survives only because of sovereign consent: “When long use obtaineth the authority of a law, it is not the length of time that maketh the authority, but the will of the authority signified by his silence (for silence is sometimes an argument of consent).”[5]  This results in a tremendous amount of present-day-ism in Harper’s hyperactive agenda, as there is no wish for tacit consent over existing laws. Because Harper’s political thinking does not appreciate law over time our Prime Minister will likely remain obdurate towards native land claims and aboriginal title - and the Constitution itself, including its origins in the Magna Carta.  What I wish to stress is that Harper’s attitude towards law is born in part of Hobbesian political philosophy – not necessarily a hard-nosed temperament or, more recently, petulant thinking.

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[1] Lawrence Martin “Stephen Harper’s real opposition” Globe and Mail, Tuesday July 1, 2014, p. A9

[2] See my blog in the Book Review section entitled: “Hobbes’s ‘Leviathan’ and Harper. Alternatively entitled: “On Harper and Hobbes, Trade Secrets with China, and Ancient Canadian Wisdom”.

[3] Thomas Hobbes, Leviathan, ed. A.P.Martinich (Peterborough, ON: Broadview Press, 2002), p. 119 (Ch. 15).  See Anne Pallister, Magna Carta: The Heritage of Liberty (Oxford: Clarendon Press,1971), p. 25.

[4] J.C. Holt, Magna Carta. Second Edition (Cambridge: Cambridge University Press, 2003), p. 16

[5] Hobbes, Leviathan, p. 198 (Ch. 26)