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)

On Conservatives, Roman History and the "Gothic balance"

Recently Lawrence Martin of the Globe and Mail published an interesting column: “Political scholars fiddle while Rome burns.”[1]  While there is some merit to the fact that Canada’s scholars are not playing as big a role in our national debates as they used to, I wish to draw attention to the “Roman” metaphor considered apart from the familiar allusion to Nero’s role during the great fire of AD 64. It is in fact Canada’s Conservative Party, once aided by  Tom Flanagan (since fallen from public grace) that has pushed the references to Roman history; any number of Professor Flanagan’s Globe and Mail op-ed contributions drew examples from the Roman period. But are Conservative Party principles consistent with Roman history?

A reading of the philosopher- historian R.G. Collingwood would imply some consistency but is not flattering. He explains in The New Leviathan: “although the word ‘legislation’ is one we owe to the Romans, the Romans did not clearly distinguish in their own minds between what we call legislation and the enactment of an executive decree.”[2]  This is clearly the problem with the Harper’s very troubling use of numerous “omnibus bills” (amounting to hundreds of pages in length each) which mask the executive as the legislative.   Another significant historical parallel are the Enabling Acts, beginning in Weimar Germany in October 1923, which gave Cabinet the power to “enact such measures as it deems advisable and urgent in the financial, economic and social spheres.”[3]  Does the reasoning not sound familiar?  Germany had previously engaged in four years of trench warfare and was at the time enduring hyper-inflation.  In a recent statement the incoming Governor of the Bank of Canada, Stephen Poloz, described recovery from the 2008-09 financial crises in excessive terms as “post-war reconstruction.”  For the “Harper Government” in other words, history implies a Roman legacy of executive decrees – or war.

Another thing the Romans gave us was the rule of law, which by inversion meant that everyone is equal before the law.[4]  However, this central principle suggests that Conservative Party thinking is not in agreement with Roman history.  In Canada everyone is equal before the law, except for the “Harper Government” which rules as if there is no reciprocity in political life, because expanding one’s power is considered more important than Parliament.  A corollary of this is Harper’s definitive refutation of Friedrich Engels (the close collaborator with Karl Marx) who famously claimed that “the state is not ‘abolished,’ it withers away.”[5] Harper’s anti-statism is only party pretension, and we can see that in his current interference with the CBC, which should be at arm’s length from the government of the day.  In Canada the state shall not wither away, because the Conservative Party has now become the country’s ruling class.[6]

The Romans also gave us the secret ballot, and here is James Harrington on the topic in The Commonwealth of Oceana (1656), aided by his reading of Cicero:  “the tablet or ballot of the people of Rome (who gave their votes by throwing tablets or little pieces of wood secretly into urns marked for the negative or affirmative) was a welcome constitution of the people, as that which, not impairing the assurance of their brows, increased the freedom of their judgement.”[7]  Given the implicit role of some unknown people in the Conservative Party behind the “robo-call” affair, and given the continuous brow-beating of negative party advertising, one wonders how “free” the vote is in Canada.  Again, the Conservative Party does not compare well with this Roman example.

Finally, it is worth noting that the Parliament buildings in Ottawa are not “Roman,” or “neo-classical” (as in Washington, which definitely has a more than a touch of Versailles to it); rather, they are neo-Gothic, modelled after the Houses of Parliament in England, which burned to the ground in 1834, after standing for 800 years, only to be rebuilt.  And keep in mind that the average Gothic window has only three points to it, likely inspired by St. Augustine’s Holy Trinity of the Father, the Son and the Holy Spirit, a theme that I have developed elsewhere in this blog.  This three-fold nature is also known as the “Gothic balance”: there is an implicit sense of mediation, reconciliation and reciprocity – in other words, a notion of “the middle”.[8]  These are not intrinsically Roman values (despite the moderating influences of Cicero and Horace); they are Medieval ones, aided as I have said elsewhere by St. Augustine and, of course, Aristotle.  By preoccupying themselves with various aspects of Roman history, the Conservative Party may have missed the boat on essential Canadian history and culture.  In other words, under Harper there is no sense of “Gothic balance”. This essay is an attempt to clarify a very un-Canadian problem.

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[1] The Globe and Mail, Tuesday June 4, 2013, p. A11.

[2] R. G. Collingwood, The New Leviathan, or Man, Society, Civilization and Barbarism. Revised ed. by David Boucher (Oxford: Clarendon Press, 2005) p. 217.

[3] Franz Neumann, Behemoth: The Structure and Practice of National Socialism, 1933-1944 (Chicago: Ivan R. Dee, 2009), p. 25.

[4] Collingwood, The New Leviathan, pp. 329,331.

[5] Friedrich Engels, Anti-dühring: Herr Eugen Dühring’s Revolution in Science, tr. Emile Burns, ed. C.P. Dutt (New York: International Publishers, nd [Nabu Press, USA, Reprint, 2010]), p. 315 (Part 3, Chapter 2).

[6] See R.G. Collingwood, The New Leviathan, p. 277.

[7] James Harrington, “Oceana” in Ideal Commonwealths, Intro. Henry Morley (New York: The Colonial Press, 1901), p. 205.  Harrington first published The Commonwealth of Oceana in 1656.

[8] For “Gothic balance” see Harrington in Ibid., pp. 216 or 217.

"Free" trade with China?

Thanks to columnist Lawrence Martin for his column: “Why no debate of the China investment pact?” (Globe and Mail, October 23)  The old problem is that the Canadian mentality is still encumbered by colonialism: first Britain, then the USA, next China.  The other problem pertains to the nature of Harper’s rule.  If we look to Karl Popper on Plato, Canadians should be asking themselves the question: “What if it is the will of the people that they should not rule, but a tyrant instead?”[1]  But Canadians are not fond of asking difficult questions.  Neither is the Globe.

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[1]  Karl Popper, The Open Society and its Enemies (New York: Routledge Classics, 2011), p. 117.

Lawrence Martin's "Harperland" -- A Review

It takes about a day to read Harperland, and so Globe and Mail columnist Lawrence Martin serves Canadians well chronicling the abuses of power, connecting the dots, building the narrative with momentum to Harper’s second prorogued Parliament, and beyond. Written in straightforward English, this reader yearned for a subordinate clause or two but delights in the many rich quotations of sources, from those once inside government, along those outside of it.

Harper is described as a man who viscerally hates Liberals (too prone to moral ambivalence), proud to be a “movement conservative,” and – in his ever-strategizing mind – one who loves to resort to wedge politics in order to divide and win. Acknowledging William Johnson’s earlier biography (Stephen Harper and the Future of Canada, 2005), Lawrence Martin selects from the latter three succinct sentences to nail down the Prime Minister’s flaws, which resonate: “He constantly displays an excess of partisanship. From the time he was elected to the Commons, his attacks on Chrétien, and now Martin, have been over the top. There is harshness, a lack of humour, humanity and moderation that disregards the traditions of Parliament where all members have a right to be treated as honourable.”

Everyone knows Harper is a control freak, and it is amusing to read how, in the early years of his government, some Conservative MPs fretted over what colour tie to wear to work. Compare this to the era when Pierre Trudeau liked to wiggle his toes freely in sandals without socks. But there is a serious side to this development, apart from secret government handbooks. Judge John Gomery, who presided over the Sponsorship Scandal (about which Lawrence Martin had much to say as a journalist) explains, rightly so: “there’s more concentration of power in the Prime Minister’s Office than we’ve ever had before ....” Moreover, the anonymous members of the PMO “are not subjected to any rules of law ....” In reading Harperland, there was certain pleasure in discovering I was not alone in likening our Prime Minister to Vladimir Putin.

When in Opposition, Harper once wrote in the Montreal Gazette: “Information is the lifeblood of a democracy.” Yet why do we witness a volte face when in government? Why all the censorship with regard to the Afghan detainees, for example? In order to explain Mr. Harper more fully, we need to move from his political mind to his economic training. One weakness in Harperland is that Mr. Martin does not consider Harper’s background as an economist. Similarly Dion makes this mistake by characterizing Harper as a (so-called politically illiberal) “Straussian”, after Leo Strauss, the late German-Jewish political thinker at the University of Chicago. In other words, Mr. Martin should have looked at Dion’s characterization more carefully - and not have accepted this particular idea at face value.

To put it simply, Harper is an economist. Yes, he actually read Friedrich von Hayek, whom Margaret Thatcher admired, keen as she is on things Austrian. He likely read (or followed) Milton Friedman, but the association of Harper and Strauss is a bit thin (and, thus, so is Dion’s assessment of Harper). In other words, I am inclined to agree (and only once in a lifetime) with Harper’s erstwhile mentor, Tom Flanagan: Harper was not a “Straussian” even though he may have mimicked some attributes.

What is missing from our understanding of Harper is his predilection for game theory, something he would definitely encounter as a student of economics. Consider the 1944 classic Theory of Games and Economic Behaviour by John von Neumann and Oskar Morgenstern. Or consider John Nash, once inspired by Neumann, subject of the book A Beautiful Mind who also made brilliant advances to game theory at Princeton – and is best known for the concept known as “Nash’s Equilibrium.” Neumann taught that Poker (as opposed to chess) was a game where there was never any perfect information: good Poker players are supposed to bluff, and Harper is an optimal bluffer, who in his vast spare time, teaches card games to his children.

Ken Binmore’s book, Game Theory: A Very Short Introduction (Oxford, 2007), explains that it is best that information be restricted: “Better knowledge is only sure to be an unmitigated good to a player if it is secretly acquired.” In other words, Harper is not contradicting himself in the light of all his government secrecy; he was simply deceiving us earlier, performing when in Opposition. Game theory can be found in Harper’s love of sport (namely hockey); it can be seen in his disregard for Parliamentary conventions and procedure; it can be seen in his use of a religious reputation; it can be seen in his implicit socio-biology, as game theory has infiltrated Darwinian evolution. And, again borrowing from Binmore, it can be seen in Harper's hypocrisy (and hysteria) over the Dion-Layton coalition (with Bloc support): “ ... there remains a great deal about coalition formation that we do not yet understand.”

Game theory aside, Harperland is an important work for Canadians still needing a picture of just how bad (and consistently bad) Ottawa's Parliamentary life has become over the last four years. Read it and be critically informed. “Peace order and hood government,” indeed!