It ’ s easier to stamp a rule on it
Confl ict: We avoid issues that force us to think hard
The temptation will be to see the case of York University, and its handling of a male student’s request to be excused from attending a study group with female students on religious grounds, as representing the opposite approach to that proposed by the government of Quebec in its Charter of Values.
The university, overruling the student’s professor, acceded to the request for “accommodation,” though not before it had gone through the department, the dean of arts, the director of the university’s Centre for Human Rights and the provost. The Charter of Values, by contrast, goes as far out of its way in the other direction, barring even the wearing of religious symbols, at least in the public sector ( though the government has encouraged the private sector to adopt the same protocol).
But an absolute readiness to accommodate — for if institutionalized segregation by sex can be accommodated, what can’t? — and an absolute refusal to accommodate are not opposites, in spirit. They may come to different conclusions but they are united by the same utter unwillingness to apply a little elementary judgment.
The solons at York who insisted that the Ontario Human Rights Code required them to collude in a student’s reluctance to soil himself with the company of women, and that it could do so without contradicting its commitment to “gender equity,” as an official explained, so long as nobody told the girls , are cut from the same cloth, intellectually, as the Péquiste ministers who have persuaded themselves that the wearing of a hijab by a daycare worker must inevitably plunge Quebec into the dark night of theocracy, or worse, multiculturalism.
Both, that is, have elected to place their judgment in a blind trust. Rather than allow for each case to be decided on its merits, asking the same questions — Is the request for accommodation serious? Would accepting it do harm to other important principles? Could it be accommodated in some other way? — but recognizing that the answers may differ, they have instead sought refuge in simple, across- theboard rules.
This is a common temptation. Judgment implies responsibility: If someone has to make a decision, someone can be held to account. It can be caricatured as expedience, the substitution of arbitrary or subjective preferences for commonly understood principles. It requires us to accept uncertainty, complexity, the possibility of error. It forces us to think harder. How much easier just to stamp a rule on it.
And so we are forever trying to escape it. Just give us a rule, we plead. Deliver us from judgment! You can see it in the vogue for “zero tolerance” regimes, as in the schools, which each week offer up examples of some literal- minded absurdity or other: a child of eight accused of sexual harassment for pulling a classmate’s hair, and the like. You can see it in debates on public issues: whether a politician’s private life, for example, should be open to public scrutiny. Rather than ask — in what circumstances might it be relevant? What are the costs, and what are the benefits? — we retreat into simplistic nostrums. The public has a right to know! It’s off limits, period!
Is this the dreaded pragmatism? Am I suggesting we should just do “what works,” unburdened by the a priori, in effect making it up as we go along? Not at all. Rules are fine things. We need rules: to structure our thinking, to avoid unfairness, to make the decisions of those in power — our rulers — predictable or at least intelligible. But a blind adherence to simplistic rules, devoid of context or judgment, is precisely what Emerson meant by “a foolish consistency.”
If rules must be informed by judgment, judgment is itself properly informed by, well, rules. If we are to do “what works,” we have to have some idea of what “what works” looks like, what criteria we should apply to distinguish success from failure. If inflexible purism is to be avoided, so is aimless, rootless compromise, as if wisdom were always to be found in half- measures.
Rather, judgment seems to me to consist in what one might call structured compromise . We should be willing, if necessary, to bend a rule or water down a principle, but only so far, and only in acknowledgment of some other, competing principle. How far? We have a good working model, I think, in the famous four- part Oakes test, named for one of the Supreme Court’s early post-Charter of Rights decisions. It is supposed to guide the court’s thinking in deciding whether a given law may be considered a “reasonable limit” on Charter rights, but the logic can be applied more generally.
For any proposed compromise, that is, ask first: is it a matter of some urgency — in the court’s language, is it aimed at some “pressing and substantial objective?” Second, is it likely to achieve it: is it “rationally connected” to the objective? Third, is there some other way to achieve the same objective at less harm to principle: does it “minimally impair” it? Last, simply, is the good achieved proportional to the harm?
If either the officials at York or the government of Quebec had applied this model to the questions before them they might have come to very different conclusions, neither bending to the demands of religious observance in the first case, nor refusing to do so in the second. Like them, we all might prefer the comfort of rules. Alas, we are condemned to use our judgment.