Essay on Canadian Morality and the Law Example For Students

Essay on Canadian Morality and the Law In legal theory, there is a great debate over whether or not law should be used to enforce morality.   The sides of the debate can be presented as a continuum.   At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual.   According to this view, a democracy cannot limit or enforce morality.  Ã‚   At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values.   For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible.   In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism.   The problem is made more complex when one considers that both law and morality ar e contested concepts.   Two recent cases where this continuum can be illustrated are Canada vs. Mossap, and Egan vs. Canada.   In this essay, I will attempt to explore some of the issues produced in these two cases.   I will begin with a summary each case, followed by an analysis of the major themes involved.   I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy.   I will then prove how the communitarian position as articulated by Patrick Devlin supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism Mill and von Hayek would agree that the decisions were just.   A conclusion will then follow. The case of Canada (Attorney General) vs. Mossap arose when a gay federal government employee applied for bereavement leave when his lovers father died.   The collective agreement between the government and Mossaps union afford bereavement leave only in the case of the death of Mossaps immediate family.   Although this definition included a common-law spouse, it precluded members of the opposite sex.   Mossap, who argued that he was being unfairly discriminated against, filed a complaint with the Canadian Human Rights Commission (CHRC).   The CHRC agreed, and ordered that he be given bereavement leave and that the collective agreement be restated to include persons of the same sex.   The government appealed this decision and the case was brought before the Supreme Court.   The Supreme Could held that the family status provision in the Canadian Human Rights Act (CHRA) was meant to uphold an implicit legal interpretation which excluded homosexuals from anti-discriminatory p rotection.   In his decision, Judge Lamer argued that the CHRA had been amended in 1983 to include the family status provision, and if the CHRA had meant it to include homosexuals, they would have made it explicit then.   Instead, according to Lamer, Parliament (through the CHRA) had a clear intent to not extend anyone protection from discrimination based on sexual orientation .   Since the legislature had not willed it, Lamer did not feel it was appropriate to amend it.   But the decision was not unanimous.   Judge LHeureux-Dube, representing the voice of dissent, argued that the majority decision went against the spirit of the law, since (in her opinion) the purpose of the Act was to ensure that people have an equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discrimintatory practices .   Based on this interpretation, she argued that families had changed radically in past decades; that single parents, common -law partners, adoptive parents, and other non-nuclear family units have all since been included in anti-discriminatory legislation.  Ã‚   As a result, she argued that traditional interpretation of family did not apply in this case, and that the family status provision did include homosexuals, since homosexual partners could exhibit all the features necessary to constitute a family unit. In a similar case, Egan vs. Canada, the Supreme court also upheld the constitutional validity of a law that discriminated against homosexuals.   The appellants, James Egan and John Norris Nesbit, were homosexuals and had lived together for nearly 50 years.   When Nesbit turned 60, he applied for spousal allowance afforded to spouses of old age pensioners, as given in Act 19 of the Old Age Security Act, but was denied.   Nesbit claimed that the Act contravened Section 15 of the charter since it discriminated on the basis of sexual orientation. The case went all the way to the Supreme Court where Egan and Nesbits appeal was dismissed.   The judge, J La Forest, based his decision on reasoning similar to the Mossap verdict.   He argued that when Parliament enacted the Old Age Security Act, it had in mind the common understanding of married couples.   In recognition of changing social realities, the act was later amended so that the term spouse also included couples in a commo n-law marriage.   Based on the amendment, La Forest argued that the government did not mean for the Old Age Security Act to apply to homosexual partners, otherwise they would have made an amendment for it.   He admitted that the Old Age Security Act is discriminatory, but considered this discrimination acceptable, since none of the couples excluded are capable of meeting the fundamental social objectives intended by the act.   In this way, La Forest felt he was upholding both the letter and the democratic spirit behind the law. An analysis of the verdicts in Mossap and Egan reveal two common themes.   On a technical level, both cases dealt with the same issue:   How does the law understand family and marital relationships?   In both cases, the appellants argued that defining these terms according to heterosexuality was discriminatory against gays and lesbians.   The overarching issue, however, was much more complex.   It calls into question the role of law in enforcing morality.   In both cases, the majority decisions seem to argue along communitarian lines:   That the law should be made by the legislature (which represents the people), and that once it is made, the judiciary has no right to interfere.   In rejecting the view that law should be used to enforce morality, the judges in Mossap and Egan are also making a statement about the nature of democracy itself.   Our answer to the main question Should law be used to enforce morality is of particular significance in a democracy.   De mocracies are meant to produce governments that embody the will of the people.   In authoritarian regimes, for example, it is usually taken for granted that the ruler imposes morality from above.   In such systems, the Sovereign is the law.1   But the difficulty in answering What is the legitimate role of law in enforcing morality in a democracy is two fold:   We must first identify which conception of the law the judges in Mossap and Egan uphold; and second, we must identify the proper relationship between law and morality in a democratic context. Australian Family Law EssayMy position would be strongly opposed by the Libertarian camp.   In the 19th century, J.S. Mill wrote On Liberty, in which he articulated the Libertarian position.   For Mill, the aim of democracy is to uphold the autonomy of the individual.   He maintains that a government must always guarantee the civil liberty of its citizens and their protection against interference by any abusive authority.   F.A von Hayek argues along similar lines.   He articulates the Rule of Law, which demands that the state should enact laws that are fixed and apply to general situations.   This enables individuals to predict state behaviour, and maximizes their freedom (especially from state coercion).   It also limits the scope of state intervention in the affairs of the individual, and excludes legislation that can be aimed at a particular group of people.   Based on these premises, Libertarians would reject the Communitarian position for two reasons.   Firs t, the democratic principles behind Communitarians constitute a tyranny of the majority, since individual liberties would be subject to the values of the majority.   Mill, in particular, makes the explicit point of saying that freedom from social pressures is as important as freedom from the state.   In the Communitarian position, however, the state and social values are combined.   Second, Libertarians would argue that when law is used to enforce morality, it allows for the coercive power of the state to be used arbitrarily.   Again, this is problematic because a democracy could never fully guarantee individual liberties for its citizens. Based on these arguments, it is easy to think that Libertarians would disagree with my assessment of Mossap and Egan, but I disagree.   We have to remember that the Libertarian position does not give a person the right to do whatever he or she wants.   Their actions have to accord with certain guidelines.   Even the greatest proponents of moral relativism have set limits upon individual freedoms.   J.S. Mill, for example, writes the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.   So even Libertarians acknowledge that self-protection is a sufficient reason for the state to limit individual liberty.   For example, if a person plans to commit murder, Libertarians would justify the use of force to subdue him.   This is because he poses a threat to other a common ideal, i.e. the right to life.   The question we have to ask is:   What constitutes harm to others?   If we, as a society, did not value life, then we wouldnt mind when the occasional murder was committed.   But the fact that we do shows that murder goes against our public morality.   The communitarian position makes its appeal based on the same grounds.   In other words, if we can prove that homosexuality afflicts harm upon others, then we are justified in using the law to prohibit it.   It can be argued that where homosexuality is a threat to a common ideal, the law should be used to prohibit it.   We know that homosexuality does not pose a physical threat to us; rather, it threatens our community of ideas.   Our common morality is what keeps us together, as a society.   Without it, we, as a society, would cease to exist.   So when acts contrary to public morality spread, like homosexuality or incest, they threaten our societys very existence.   In these cases, the state is justified in enforcing morality on the basis of self-protection.   This does not mean that the law should be used to enforce all morality, or that homosexually should be legally banned in every country.   It just means that when a society shares a particular set of morals (which they consider essential to their survival), the state is completely justified in using law to enforce them.   Even if we accept an extreme moral relativist position such as the one presented by LHereux Dube in Mossap then we must also accept that the morality is nothing more than the general mood of a people at a particular time.   But if this is true, then there is no better law-making institution than the legislature, since it is they, not the judiciary, that embody the mood of the people.   And since the judges in Mossap and Egan based their rulings on what the legislature had intended by Acts, their decisions were based on public morality.   Based on this, I argue that the rulings in Mossap and Egan were completely in accordance with the principles of democracy. Let us summarize.   I have shown that Mossap and Egan dealt with more than just legal interpretation.   They question for the judges wasnt Should we reinterpret this law but .   Both judges concluded that if the people, as a collective, had condoned homosexuality, then Parliament should have enacted (or in this case, amended) the proper legislation.   But the fact that Parliament did not shows that public morality is still homophobic.   Both judges accepted their role as facilitators of the public will.   They would have been justified in interpreting the law in a way that the people, represented by the legislature, did not approve of.   The verdicts in Mossap and Egan served the will of the people.   If thats not democracy, I dont know what is. BIBLIOGRAPHY: David Dyzenhaus and Arthur Ripstein, eds.   Law and Morality:   Readings in Legal Philosophy.   (University of Toronto Press, 1996). 1 See Hobbes, Thomas.   For more details.