Precision key to governing morals
A socially conservative Canadian could be forgiven for asking: What the hell is going on? Once, long ago, the issue was dirty movies and premarital sex. But now? Surely Sodom and Gomorrah are upon us.
The changes in the social landscape in the last few years must strike many as overwhelming. As late as 1969, abortion and homosexuality were still illegal, and even after the Supreme Court’s 1988 Morgentaler decision, the situation remained comparatively manageable. Beyond abortion, the social conservative “agenda” amounted to “please don’t make things worse.”
This was more or less the understanding on which they supported Stephen Harper. If he offered them nothing on abortion, at least he would not preside over a further assault on traditional norms and common values.
Yet it is under this prime minister that gay marriage was confirmed, after Parliament declined to draft new legislation in response to court judgments striking down the old marriage law. Now the laws governing prostitution have been similarly tossed aside. Drug legalization is sure to be the next battleground, and beyond that? Assisted suicide? Polygamy?
Is this the slippery slope of which conservative commentators have warned? Is society powerless to resist any erosion of long-held standards of behaviour? Why doesn’t Harper do something? No doubt a great many Canadians feel this way. It probably accounts for the surprising levels of support Quebec’s proposed Charter of Values enjoys, even outside the province. Finally, you hear people say, someone is drawing the line — any line.
I don’t think that’s what’s going on. Rather than failing to draw the line, I think we are, collectively, drawing it at a new place. To be sure, the courts have been showing the way, but where the courts have led the public has tended to follow — witness the high levels of popular support for gay marriage — which may explain why even conservative politicians have offered little resistance. This has been as much a democratic as a legal process.
What is common to a number of these debates is a growing skepticism, not at the notion of drawing moral lines, but whether these lines need always to be drawn in law. Where of old the criterion for prohibiting something might have been “is this something of which the majority disapproves,” today the test is, is this harmful?
Where no harm has been shown to result, or even plausibly argued, as with gay marriage, the constitutional — and increasingly the political — presumption has been in its favour. The onus, the courts have ruled, post-Charter, is on those who wish to restrict a guaranteed right to show that it is harmful, rather than the other way around. (One wishes the courts would apply this principle with the same consistency to speech, supposedly the first of our liberties, where they have tended to assume harm, not only despite the lack of evidence, but because of it.)
And even where a social harm, as with drugs or prostitution, can be established, that is no longer enough to end the argument. Rather, the question becomes: How is such harm best reduced? By the criminal law, or by some other means? Does criminalization itself lead to greater harm, on balance, than its absence?
That was essentially the court’s argument in Morgentaler. The judgment was empirical, rather than absolute: It applied not to any abortion law of any kind, but to the law as it was written, which the court found needlessly threatened women’s health. The same reasoning was at work in the prostitution ruling: Whatever harm the laws sought to address, they caused even more, or certainly more than was necessary. The coming debate on drug legalization will be conducted on much the same grounds.
But if this emerging legal and political consensus has tended to find against criminalization, neither does it rule it out. The alternative to which we are being led is not a libertarian insistence on absolute individual dominion over the body: whether to fill it with drugs, or sell it for money, or abort the fetus within. Still less does it express approval of the practices in question. There are those who see prostitution as female empowerment, or drugs as benign pleasure, but that is not, I think, where the mainstream of opinion is headed.
Rather, it retains an element of paternalism. If, as a matter of law, it is more inclined to leave these to individual choice, it does not remain indifferent to the choices they make. If imprisonment and fines are no longer the instrument, it remains open to society to influence behaviour by other means, from simple persuasion to tax incentives to the regulatory “nudges” popularized by the authors Cass Sunstein and Richard Thaler. The notable success in reducing smoking across the western world in recent decades is an example of all three.
Indeed, one virtue of the harm-reduction approach is that it allows us to see the harms associated with certain behaviours a little more clearly than we might otherwise. Once you have made it clear that you do not propose to jail people for lighting up a spliff, for example, you are perhaps more likely to get a hearing with regard to the harmful effects of smoking marijuana, at least in some people, on which there is a growing body of medical research.
The criminal law still has its uses, obviously, particularly where the harm is to others, rather than self-inflicted. I’d make a case for some legal restrictions on abortion (though late-term abortions have been all but eliminated without them), if only to establish that the fetus has some rights in law. Assisted suicide, because it involves the intervention of another, raises many of the same questions.
But a more precise application of the criminal law, based on a better appreciation of its limits, is not evidence that we no longer know where or how to draw the line. Quite the contrary: We are drawing it with a sharper pencil.