Canada has a constitutionally entrenched set of guarantees for certain basic rights and freedoms: the Charter. Specific guarantees include fundamental freedoms (including freedom of conscience and religion, freedom of expression, and freedom of association), democratic rights (including the right to vote), mobility rights, legal rights, equality rights, and language rights.

Before the Charter was enacted, Canadians already placed special value in these rights and freedoms. Because of this, governments tended to treat those rights and freedoms with respect. Governments that failed to do so risked punishment from the voters. So before the Charter, Canadians already possessed certain basic rights and freedoms and these were already protected through the democratic process.

At the same time, the process that protected basic rights and freedoms also made them vulnerable. Sweeping restrictions on freedom of conscience and religion might be avoided for fear of electoral backlash, but restrictions targeting members of a minority group might carry no such risks. Democracy provides a measure of protection for basic rights and freedoms, but it does not provide equal protection.

These are the reasons why the Charter was enacted: first, because Canadians value certain basic rights and freedoms, and second, because the incentives of electoral politics are not an adequate safeguard against the violation of those rights and freedoms. Entrenching the Charter added the protection afforded by the legal process to the protection already afforded by the democratic process.

In addition to a list of basic rights and freedoms, the Charter also contains a provision (section 33, the notwithstanding clause) that allows legislatures to override fundamental freedoms, legal rights, and equality rights (but not democratic rights, mobility rights, or language rights) simply by including a declaration to that effect in a bill. Such declarations expire after five years (the maximum life of a legislature) but may be renewed indefinitely.

Section 33 ostensibly provides a safeguard against judicial overreach in applying the Charter, to balance the Charter’s safeguard against legislative encroachment on basic rights and freedoms. But I’m not sure this makes a whole lot of sense.

The rationale behind the five-year expiry date for invocations of the notwithstanding clause is that voters can be counted on to punish governments that misuse the notwithstanding clause. This is equivalent to saying that voters can be counted on to punish governments that violate basic rights and freedoms. But to reiterate, the reason the Charter was enacted in the first place is because we recognize that we can’t count on the democratic process to protect basic rights and freedoms. So if the justification for the notwithstanding clause depends on the assumption that voters will punish governments that misuse it, the justification fails because, as the Charter’s very existence demonstrates, that assumption is false.

Now here comes the practical bit. The notwithstanding clause threatens to make superfluous those sections of the Charter that are subject to override. But the rights and freedoms set out in those sections of the Charter are extremely important; they need real protection. So if section 33 makes those parts of the Charter superfluous, section 33 ought to be repealed. Unfortunately, repealing section 33 is very difficult. But if it’s the case that section 33 ought to be repealed, it must be the case that section 33 ought not to be used. If section 33 ought not to be used, its use ought to be prevented when possible. As it turns out, this is possible. The federal government can prevent provinces from using section 33 by threatening disallowance of bills that use the notwithstanding clause. And if my reasoning so far has been sound, it should.

This is a followup to my previous post on Michael Huemer’s argument that redistribution violates property rights. As I outlined last time, Huemer’s argument depends on the claim that for a system of legal property rights to be morally acceptable, it must satisfy the constraints of certain pre-institutional natural rights. Among these, Huemer claims, are natural property rights, which he tries to establish by invoking a thought experiment about a hermit:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.

In response, I suggested that natural property rights are unnecessary to explain why my behaviour would be wrong in this situation. Rights to privacy, freedom of association, and respect provide sufficient grounds for objection to my behaviour. This response, however, leaves open the possibility that the grounds for objection include natural property rights, even if natural property rights are not necessary for my behaviour to count as objectionable.

This possibility can be ruled out by meta-ethical considerations. As I’ve argued before on this blog (in the context of an argument for the equal intrinsic value of persons), moral facts cannot be brute facts (facts with no further basis, reason or explanation). This is because moral facts cannot be directly observed, and brute facts cannot, by definition, be inferred. This means we cannot possibly have knowledge of brute moral facts. Assuming there are no moral facts which moral agents are necessarily ignorant of, then, there are no brute moral facts. All moral facts are either true in virtue of some other, more basic moral (or otherwise broadly normative) facts or they are necessarily true.

Here’s why this is a problem for Huemer’s argument. Huemer posits natural property rights because, in his view, there are no other norms that could explain the wrong done to the hermit. This means that natural property rights must not only be pre-institutional, they must be morally basic — otherwise it would be possible to explain the wrong done to the hermit in terms of the more basic norms constitutive of natural property rights.

If there are no brute moral facts, then natural property rights can only be morally basic if it is necessarily true that there are natural property rights. But we should believe that natural property rights exist necessarily only if it is, on reflection, inconceivable for them not to exist. It would be inconceivable that natural property rights do not exist only if it is inconceivable that no wrong is done to the hermit and nothing besides natural property rights could explain that wrong. Because other explanations are available, it is conceivable that there are no natural property rights. So it is not necessarily the case that there are natural property rights. Because there could only be natural property rights if it were necessarily the case that there are natural property rights, there are no natural property rights. So natural property rights, as Huemer understands them, are not among the grounds for finding my treatment of the hermit objectionable.

According to the philosopher Michael Huemer (in his paper “Is Wealth Redistribution a Rights Violation?”), taxation for the purpose of redistribution violates moral property rights of individuals. I’m not totally sure I follow his argument, but as best I can make out it’s something like this:

1. Moral property rights are determined strictly by the content of natural law (pre-institutional norms), strictly by positive (i.e. human-made) law, or by a combination of natural and positive law, where the positive law must conform to limits established by natural law.
2. If moral property rights were strictly natural, their parameters would in certain cases be indeterminate and thus incapable of guiding action.
3. The parameters of moral property rights ought to be determinate.
4. Moral property rights are not determined strictly by the content of natural law. (from 2 and 3)
5. If moral property rights are determined strictly by the content of positive law, then if slavery is legal, one can have a moral right of property in another person.
6. One cannot have a moral right of property in another person.
7. Moral property rights are not determined strictly by the content of positive law. (from 5 and 6)
8. Moral property rights are determined by a combination of natural and positive law, where the positive law must conform to certain limits established by natural law. (from 1, 4 and 7)
9. Natural law includes pre-institutional “core” property rights to which positive law must conform in the absence of some special justification.
10. A violation of core property rights occurs if the right-holder is coerced into transferring legitimately acquired property to another.
11. Taxation for the purpose of redistribution typically involves coercively transferring legitimately acquired property to another.
12. Taxation for the purpose of redistribution violates core property rights. (from 10 and 11)
13. A regime of property rights established by positive law that includes taxation for the purpose of redistribution is morally defective in the absence of some special justification. (from 8, 9 and 12)

The argument starts to go off the rails, I think, in premise 9. I’m more than happy to agree that legal property rights are constrained by pre-institutional norms. But it’s not clear that these pre-institutional norms include pre-institutional property rights, and Huemer’s argument for this claim seems inadequate. The argument involves the following thought experiment:

Suppose you are exploring a remote wilderness region outside the jurisdiction of any government when you come upon a clearing containing a rude hut. The hut appears to have been built by a hermit, who is its only inhabitant. Since property rights depend entirely upon governmental laws, and none are in force here, you determine that the hermit does not own the hut. Over his vociferous protestations, you decide to spend the night in the hut, eat some of the food that the hermit has grown and gathered, and then paint the hut lime green. You don’t need to do any of these things; you just do them for fun. If there really are no property rights in this situation, you have just as much right to do these things as the hermit does.

Essentially the argument is:

14. If the hermit does not have a property right to the hut he build and inhabits and the food he has produced, he has no grounds for complaint if you stay in the hut, alter its appearance, and eat the food he’s produced.
15. The hermit does have grounds for complaint under these circumstances.
16. The hermit does have a property right to the hut he inhabits and the food he has produced. (from 14 and 15)
17. The hermit does not have a legal property right.
18. The hermit has a non-legal (natural or otherwise pre-institutional) property right. (from 16 and 17)

Premise 14 seems to be the weak link here. It’s not at all obvious that the hermit can only complain on the grounds that his property rights have been violated. He might object to my behaviour because my company is unwanted, for example — i.e. that I’m infringing his rights to privacy and freedom of association. My behaviour may also fail to show due respect for the solitary way of life he’s chosen. And although Huemer stipulates that my conduct in this particular instance causes no harm to the hermit, a generally applied moral permission to occupy the hut he uses and eat the food he produces (for no reason, as the thought experiment also stipulates) could reasonably be expected to cause harm. This gives the hermit good grounds to reject a principle permitting that behaviour; in contrast, I cannot reasonably reject a principle forbidding that behaviour. Such a principle would, I think, fall far short of what Huemer imagines pre-institutional property rights to be — and what he needs pre-institutional property rights to be in order to reach the conclusion that redistribution violates pre-institutional property rights.

I’ll leave it at that for now, but the problems with Huemer’s case against redistribution don’t stop there. Even if it must be granted that there are pre-institutional property rights, there are reasons to doubt that redistribution necessarily or even typically encroaches on such rights. These further problems will be the subject of my next post.

In an article by Alex Ballingall published on Saturday, Avi Lewis is quoted saying that the federal NDP should “chug this Kool-Aid [of populist politics] rapidly if they don’t want to be wiped out.” This is a strange metaphor to use in this context, given its widespread association with the mass murder-suicide at Jonestown, which claimed 918 lives. In the vernacular, “drinking Kool-Aid” has come to connote wilful acceptance of ultimately self-destructive delusions out of unthinking (normally political) group loyalty. This probably isn’t the best framing to use when you come bearing advice—especially not when the advice includes tips on effective political communication.

Regardless of framing, however, Lewis’s advice is not good. His view seems to be that the NDP should not develop actual policies. While he expresses approval for Jagmeet Singh’s latest call for measures to make sure the rich pay their fair share of taxes, he then expresses disappointment that Singh followed through on this slogan by proposing actual policies pertaining to tax fairness. “Why go for something that you have to explain?” Lewis asks. Instead of proposing policies, Lewis suggests, the NDP should stick to making “demands” delivered in simple phrases like “Federal Jobs Guarantee”.

A major problem here is that Lewis appears to have confused party politics with mere protest. Political parties normally do not confine themselves to making demands of those in power; rather, parties aspire to hold power themselves. Of course the NDP may, in its capacity as a part of the parliamentary opposition, make demands of the government. But the party’s job is also to go beyond making demands and present a credible alternative government. As such, the party must develop policies of its own that can be implemented if the voters entrust it with power; if the party can’t or won’t do this, then obviously the voters would be wrong to entrust it with power.

Lewis’s advice, then, makes sense only if the NDP is conceived strictly as a protest party, and not as a legitimate contender for power. Speaking as a New Democrat, I think that’s hogwash. Canada needs a social democratic government, and the NDP is the only party offering that option. New Democrats therefore owe it to the country to be a party that is worthy of consideration as an alternative government. Making reasonably detailed policy proposals available for public scrutiny and debate is part of what it takes to live up to that standard, and I’m pleased to see Singh following through on this.