Law Alone Not Enough

I came across a reflection on the implementation of law, once written. The following quote is by Linda E. Ledray, R.N., Ph.D., Recovering from Rape, Henry Holt and Company. New York, NY, 1986, pp 216-217:

Laws alone won’t stop rape. The laws are only as good as the people who enforce them….

When the government decided it was time to stop litter, an active campaign was launched across the country and littering was essentially stopped in many areas. When a West Coast city elected a woman mayor who took an interest in stopping rape, there was significantly less rape. Perhaps when more women are sitting in the House and Senate, preventing rape will become as important as curtailing litter.

Barring the little detail that American mayors have more authority to act than Canadian mayors do, we can see the principle that Dr. Ledray is proposing. One person’s vision does matter.

Dr. Ledray closes her manual with core reflections for women. Only self-reliance will relieve fear and conflict. Dependence relieves it only for a short time. It is false security. Women must become strong, independent, self-reliant and in control of their lives and bodies – in short – women must assume their place as equals to men. She backed up this position earlier in the book with a study of various tribal groupings. It was in the tribes in which the women were dependent that rape was occuring in the society.

Change within society starts with the one. It starts with ourselves.

Plato and the Guys

All political activity involves either bringing a change from the worst to the better or preventing a change  from the better to the worst.

Plato

An optimist, Plato saw humans as fundamentally good. It is the environment that corrupts. Humans are naturally not equal. The gold type are by nature equipped to rule. Silver is a small group who are guardians of the state. Brass is the rest of us. People do what they are best suited to do. I’d rather go for gold myself.

Aristotle (b. 384 BCE) and the state

The state was considered a natural progression from family to village to city. Humans are intended by nature to live in a state. The state meets human needs to make possible  the good life for the citizen, making justice and virtue possible. There are inherent characteristics which prevent us from developing the perfect state.

St. Thomas Aquinas (1225-1274) and Self-preservation

The state is natural only when ruled by one person. Humans need to be ruled because they are imperfect:

• We always seek our own self-preservation. We are all potentially murderers.
• Our self-preservation drives are harmful to others.
• All have an inclination to be good, to live with one another and with God.

Conflict is inevitable, so there is a need to be restraints. Human beings are not equal to know the truth and act virtuously; be ruled by men who know God’s laws, thus approved by the Church (veto power).

Do you see a “Holy War” coming on? Plenty of other groups state they know God’s laws.

This is a difficult one. One may know the laws, but are unwilling to follow them. The more educated you are, the easier to circumvent them.

Machiavelli (1469-1527) and Gaining Power

Machiavelli had a cynical view of human beings:

• the populace is naturally ungrateful, so use a system of rewards and punishments,
• judge people by what they do, and not on their morality (inferring not by their intent behind the actions), so
• do the hard things first, and
• the separation of religion and politics separates politics and power from ethics and morality

In a sense, Machiavelli discusses the “elephant in the room”: exercising of power has its own rewards and satisfactions. People are ambitious and have conflict with one another. A heroic figure is looked for to bring order out of chaos, which brings in opportunity for those who will seize it. Machiavelli challenges the simplistic by stating that the exercise of power cannot be limited with a conventional morality because one is dealing with others without moral scruples, thus “the ends justifies the means.” We may not agree with the loose way in which this is expressed, but certainly strategy may need to be unconventional.

Machiavelli advocates the use of violence to establish oneself as a ruler. Certainly under exceptional circumstances that may be necessary if a corrupt intractable situation is in play. What we can agree about is the attribute of assertiveness which is essential to not only acquire the power, but to maintain it.

He continues that people are interested in security, and not in politics. They are irrational politically, but rulers have to be rational, self-confident, and have more information. We see Machiavelli’s point as apathy sets in when the people feel helpless because they are without choices they can believe in.

Social Contract Theorists

What would life be like without government? Natural rights to life, liberty, property, the pursuit of happiness.

Thomas Hobbes (1588-1679) State of Nature Theorist

Hobbes was less opportunistic than Locke. While people in a state of nature can reason, they do not think in group terms. They are much more concerned with self-preservation and are willing to kill to defend themselves. They strive for self-gratification and self perpetuation, and may hurt one another in doing so. They will eventually conclude that they are better off as a group within a state. 

In his book Leviathan, Hobbes describes life in the state of nature as being nasty, brutish, short, unlike Locke who saw the state of nature as a rather pleasant place. People form a social contract with the state and give up their freedom in exchange for safety and security. Hobbes advocated a total form of government, unlike Locke who favoured a limited form.

Since humans are both rational and selfish they tend to perceive what is good for themselves, their personal interests but not for the group nor their interests. Hobbes theorizes that without a government we’d be in constant war with each other, solitary, nasty, brutish and short-tempered, we’d be in a war against everyone.

Thus, it is better to compromise and maximize our own gratification and minimize the likelihood of violent death. Surrender freedom for security. The contract requires obedience to an absolute ruler, to comply if the ruler protects.

I think of this theory whenever government claws back financial support to the poor. It is implied that families are good, whole and financially flush and fiscally willing to support the poor family members. Not in my world. The tax paying voters accept this myth for it is convenient to them as they pursue their own dreams. The subterranean thinking is the cull the herd through survival of the fiscally fittest.

John Locke 1632-1704, State of Nature Theorist

Locke perceived that people are rational with an innate moral knowledge of good and evil, their reaason enables them to cooperate with one another. People are born free, independent with reason–liberalism as a philosophy underlying government. They have a right to liberty, life and the pursuit of property through our own efforts (labor theory). Governments should not intrude on these rights except to prevent violence.

In short, Locke did not believe in big government nor that government be involved in economic matters. Much of the content of the U.S. constitution is based on Locke.

The Social Contract is to decide:

1. Humans agree to live in community.
2. Consent to government giving community its moral character. The majority cannot infringe on the property rights. Government is limited to interfere with right of property. One is free to pursue life, liberty and property. Limited government has been the hallmark to the American system. Checks and balances are in place to assure limited government.
3. Government is a trust. People are morally self-sufficient to watch over its activities, not only in their own interests, but in interest to society at large. Influences the American Constitution.

Locke forgets that there are quite a number in the population who actually choose evil. Many are clever enough to carve lauded positions in the community. George Orwell’s 1984 comes to mind. The 1940 movie Gaslight as well  as Jim Henson’s Labyrinth give a good look at evil on the home front in personal relationships.

Who Runs the Show?

Elite or Not to Elite

Do the “Elite” have the political power and control the political process and make the decisions? Where do I sign up?????

Do you go with the class theory – those who rule with perks and those who are ruled? Each group is cohesive, stick together with shared values, with common background and interact frequently. Some say there is no class but those with money and those who do not have it. The middle class is eroding and have-nots are escalating in numbers. How do I sign up with those who rule with the perks??????

The Iron Law of Oligarchy (Micheals) theorizes that elites control all the organizations because they pley the game best. Only a few make the rules. It is self-selecting and self-perpetuating. Attributes are skills, dedication, time, interest and resources, therefore, they gain leadership through natural selection.  Now where are those resources…???

We vote the elite in and then complain that the rulers are too removed and insensitive. Elites reflect the dominant culture. There are different types of culture: military, clerical, economic cultures.

Government Structures

Laws and good government are dependent on effectively functioning governance. 

A unitary system tends to appear remote from the people, insensitively authoritarian. It works best in small countries with few divisions along ethnic or religious lines, a homogenous society. France and the U.K. have used this system but they are not as homogenous as they once were.  This proves to be a challenge.

The Federal system applies to states and provinces, constituent units.  which are theoretically equal because they get delegated  power from the Constitution. Power is divided with diverse people, religions, cultures, a plural society.  A sense of independence and local identity are preserved. Economic pragmatics draw the groups together as in the 1860s railway, July 1, 1867, U.S. Revolution.

Canada is both centralized with national and international concerns (federal) and decentralized to deal with highways, municipal governments etc. (provincial). Canada began centralized and is becoming increasingly decentralized. The opposite is the case for the USA, Brazil, India, Nigeria, etc.

Municipal government is not entrenched in the Constitution and exist on provincial legislation, a concession from United Empire Loyalists seeking a more direct form of representative democracy after their experience with democracy in the United States.

Problems occur when national concerns become local and local concerns become national. Federal government is written constitution to delegate power and responsibilities. It is  an expensive  and static form of government with overlapping and duplucation.

Federation has been blamed for perpetuating divisions that are not relevant anymore.  Wee need a pool of people to make it work from all significant groups. People have to feel comfortable in a federalism, need to feel responsible to people’s needs.

Democracy Anyone?

It is a myth that we have popular control over our governments. Hope reigns eternal and the frameworks are put into place:

1. everyone ought to be able to vote (who -the working class, at what age, with property, women…..the issues are ongoing)
2. elections must provide a real choice
3. voters have adequate information to sort out biased information from good information. TV is expensive, suitable for soundbites, conditioned to watch the media in a certain context. Media ownership is in the hands of a few. The internet is awash with information, misinformation and information overload.

Once we have our representatives in place, are they delegates to do what the electorate wants or are they trustees to do what they think best?  It’s a tricky game we play with majority rule and protecting minority rights at the same time. We need to be diligent or our democracy becomes mob rule and minorities (and those with less power, usually those with less capital – women, for example). A person needs a decent standard of living to be able to politically participate, therefore there needs to be economical development before democraty development.

One of the felt needs was to have a high level of literacy as knowledge is power as the illiterate are more easily manipulated. But knowledge is not wisdom and word games and manipulation of fears and desires are not exclusive to the illiterate.

What we have in Canada is a pluralistic society, a multitude of groups with a wide diversity of interests. It is generally considered that power will concentrate among a few. However, if splitting of the vote among parties puts power-for-its-own-sake-and own-narrow-values people into into power, it becomes even more essential to establish consensus of basic values and the opposition parties had better get to it. We need to trust, compromise and identify with the common good. This is something that can be done. We need to believe in possibilities.

Of course, the pressing issue is – what is the “common good”? Like “common sense”, we cannot make assumptions that everyone is working with the same playbook and are on the same page. Diversity and unity in diversity are essential to make deals and rules using compromise.

The country has become cranky and distrustful of deals. Consensus means to consent to the system. If people feel that government or state is inappropriate to the extent that they feel oppressed this leads to instability.  Feelings can be manipulated to unseat governments at the polls and to garner following and re-election when the merit is lacking.

It is simply a belief system that power and authority rest in the elite group. Nevertheless some play the game better than others and have more intellect, energy, sensitivity and education.

Magna Carta foundation

In 1215, the Magna Charta began a codified system of limited government and due process of law. No one can arbitrarily be punished without a legal case. Consult with nobility before taxing (parliament must approve).

This Magna Charta enabled the foundation of Canada’s 1867 British North America Act (the BNA Act) setting Canada up as the dominion of the British Empire. Canada was internally independent with a government similar to the United Kingdom with a monarch, government, and judges independent to government. It was an ordinary act of British Parliament which could only be changed by British Parliament.

By 1981 it was agreed on (except the Quebec legislature)an amending formula and the Constitution Act of 1982 was born. The amending formula came to Canada with a Charter of Rights and Freedoms.

At once it was the premis of the separatists that federalism doesn’t work, that there are legal, moral and political problems.
The amendment 7/50 rule is effective in many matters (7 provinces with 50% of the population). Unanimity is required from all provinces on a few but very important matters. The Notwithstanding Clause Section 33 (1) is valid for five years then repassed, available to all the provinces and federally. Quebec legislature used it for signage laws.

Changing the Constitution

1. Amendment Process – the 7/50 rule
2. Judicial Decision – method used to interpret and change the Constitution

• Strict constructionist approach by applying the Constitution literally. It is a Canadian tendency to use this approach as judges are appointed by the Prime Minister. Law makers should change it, not the courts.
• Judicial activists – following the spirit of the constitution, laws are judged in context. What do the voters want? What are your own feelings and conscience? The American Supreme Court Justice are appointed by the President and passed by the Senate. Judicial decisions change the constitution.

    3. Change administrative procedures by just stop doing something.

    4. Change in conventions and practices.

Crown corporations are pragmatic entities owned by the government, established either through their own legislation or through incorporation under the federal or provincial companies legislation. Mixed corporations are businesses in which governments hold a certain number of shares. It is conceeded that there are well over 300 Crown Corporations with complex relationships and scope of activities.  In 1919 the Canadian National Railways was formed. In 1934 the Bank of Canada was taken over (Kernaghan, Siegel, 188,189). The business people had more confidence in the government than in the private sector and arranged for Ontario Hydro to provide assured power at low rates (194).

Generally, the purpose for Crown Corporations is to support private sector corporations, not to compete with them. Humanitarian rescue missions of the private sector are only useful if active restructuring to correct past failures is made. Failing companies need not have funds poured into them to be employed as “make work” projects. Postal unions argued strongly in favour of the post office becoming a Crown Corporation to allow for a broader scope of bargaining to be relieved of the strict financial and personnel restrictions in departments.

Since the 1984 amendments to the Financial Administration Act, Cabinet approval is required before a Crown Corporation can be formed. The establishment of and maintenance of Crown Corporations continue to evolve closer to the spirit of the Magna Carta thanks to these amendments. Now federal Crown Corporations submit an annual corporate plan for the minister’s approval. We must regularly revisit the spirit of the Magna Carta to bring just laws forward into modern circumstances.

Values Added

You – Part of the Law Making Process

What law-making values are important to you?

Is it dealing with significant scarce resources? Is it:

• everyone with land to “own”,
• justice,
• security,
• equality,
• freedom,
• decent housing,
• access to post-secondary education,
• clean air,
• health care?

Disagreement and conflict are inevitable in handling scarce resources. The difficulty in obtaining a satisfactory resolution does not dictate that the effort to keep working on an amenable solution for all should be abandoned.

What you think matters. The black box (not the proverbial “little black book”) of inputs, outputs, and feedback are core to politics.

Inputs are the information upon which political decisions are based. Demand needs to rise in quality towards health care (illness prevention) and a national day care system. Support fluctuates as people reluctantly comply to taxes and may riot over issues. Political Parties agrigate demands – not a “necessary evil”, but part of a neccessary process.

The output product or the work reveals itself in laws, policies, and decisions that the system does. It is either allocative (policy making and application) or symbolic (new flag, holiday, abolishing monarchy). When we assess Crown Speeches, it would do well to determine what is substance and which is window dressing. Society needs a good mix of both.

Feedback: the effect of a policy in its stated intent and in its delivery or lack thereof. The disenfranchised or overworked may not have the energy or wherewithall to give adequate feedback for policies to move forward.

Demand Overload

Once an envied political bureaucracy after WWII, Canada’s bureaucratic system is stressed with too little in staffing and retraining when there are policy shifts and little in a listening ear to the working bureaucrats in the system.  There is not enough efficiency in the system to reallign and update fully and properly. The processes of the system are what make the country move forward as a people of peoples. “Total employment by all levels of government in Canada is far below that of most modern western democracies and very close to the United States.” pg. 17, Kenneth Kernaghan, David Siegel, Public Administration in Canada, Nelson Canada, Scarborough, 1991, pg 18, Footnote 27: Sutherland, “Federal Bureaucracy,” 73.

French political philosopher Jean Bodin (1530- 96)

Bodin reasoned for a strong central government ruling over all to address instability in France. Sovereignty law is such that the law holds the state together. The state is above the law from which the laws emmanate (explaining certain cavalier attitudes to laws by some politicians who will remain nameless). Divine law, natural law and international law restrict it.

Bodin also spoke of family: parents, children, and that property is neccessary for survival. Ownership of property is a natural right. The father has total power [I thought this was fine when I was a child since I didn’t know there existed evil men to see the implications]. Bodin’s views need to be seen in the context of the times. The larger association of the state is for protection and punishment for disobedience.

Theory of state sovereignty is a western European concept. It does not fit in with clans, tribes, or religious authorities. Hence Somolia is visited with warring clans. According to Bodin, government is at the center ruled by one person who is superiour to local rulers and the church. It consists of a unified government embodied in an absolute monarch, ruled over a geographic area and cannot be challenged. The state has absolute and final legal authority over all matters and is not subject to any power outside itself. The state is sovereign over life and death and can allow or veto assisted suicides. It is compared to God ruling heaven. There is seen to be a connection between divine rule and rule on earth. The state is characterized by justice. Justice is likely to exist when you have an equal chance and your rights are protected. The State regulates almost everything. States normally endure whereas governments come and go. Law enforcement is left to the authorities. The laws formulated are binding rules emanating from the government and are enforceable by police and courts.

There are two kinds of law:

1. Customary law is developed over time by habit and custom. It is not always written down. There is no law written that we need a Prime Minister but it has become Common Law.
2. Statutary law is a written legislative process with the lower level of consent, the greater the need to exert force.

Modern sovereignty is popular sovereignty in which the existance of the state, its activities and nature  of its governemnt  are subject to the wishes of the people, maintaining law ans order and taxes, ect.

Is sovereignty obsolite? States have limits with international law and sovereignty is shared. Separatists want sovereignty/association. yet in the Viet Nam War China could have intervened but did not.

Power and Authority to Make Laws

The state is given a social contract to make laws where it is expected to meet the basic needs of its own citizens. Legislation creates laws for conflict resolution and organizational cooperation hopefully with security, order and justice using a balanced use of force, power and authority.

We need to look at power and government, the values underlying these, the behaviour of people who exercise power and the people who are ruled. Bureaucrates and ethics are but two avenues to keep those in power accountable.

A basic challenge is the scarcity of resources. We devise rules via values through the political forum to guide its distribution which directs the distribution. Procedures are particularly tricky to ensure the follow-through of the intended legislation. Issues of fixed geographic boundaries and territorial possession enter into play.

Adam Smith was known as the laissez-faire economic theorist. Overly optimistic about abilities and intentions of people, there is little in the fabric of this design to give a helping hand, leg up for one another or working together to ensure no one is left behind. This model does acknowledge the need for rules of cooperation in the face of acknowledged self interests which are assumed to be something society will benefit from.

The state is the totality of all the groups in a particular geographic area needing a governmental mechanism with parlying of parliaments, police and courts. Government is only an agent and instrument of the state.

Sir John A. McDonald appointed someone from every interest group in cabinet. Canada was founded on strength in unity in diversity.