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| Montreal, December 7, 2002 / No 115 |
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by
Harry Valentine
During the week of November 25, 2002, an influential American philosopher whose theories held sway in Canadian government circles, passed away. In 1971, John Rawls published A Theory of Justice, in which he argued that while all individuals may have equal and extensive rights and freedoms, their limits should be defined by the social and economic conditions of society's least advantaged members. The Canadian constitution has a notwithstanding clause written to effect such ends. Rawls essentially re-interepreted the concept of forced redistribution favoured by Marx, which is; "from each according to their ability, to each according the their need." |
| Abilities
VS Needs
Prior to becoming premier of Ontario, Bob Rae asked the question, during an address to a group of York University students: "What do we owe each other?" Rae tried to govern Ontario from this perspective, that is, the more able citizens owing some kind of debt to the less able citizens, by the mere fact of their existence and their ability. This essentially is the central theme of A Theory of Justice, being administered by a government. When Rae left office after an election defeat, Ontario was saddled with a record government debt, a debt that Ontario's more advantaged citizens and businesses would be expected to pay off. While libertarian philosopher Robert Nozick dismissed Rawls' theories as nonsense, Rawls' obscure book and its theories have found acceptance and gained influence in several university law departments, as well as in government bureaucracies. It provides a perceived ethical basis by which government bureaucrats and government lawyers may formulate economic regulations. It legitimizes the practices of regulatory tribunals and similar agencies in the minds of the bureaucrats. They believe that their actions serve the best interests and needs of society's economically least advantaged citizens, even if achieving such ends involves violating or denying the constitutional rights of other more advantaged citizens. Such action may involve the initiation of forcible coercion (compliance to an untenable policy), denial of opportunity or confiscation of resources. That the theory and ethical/philosophical basis to justify such actions may be seriously flawed has little, if any, relevance for state officials. Regulatory tribunals have routinely side-stepped the rights and freedoms spelled out in Canada's constitution, due to the notwithstanding clause that allows them to override constitutional rights and freedoms, in the best interest of society's least advantaged citizens. Canadian provincial courts have consistently refused to hear any appeals or constitutional challenges against rulings of economic regulatory tribunals, on the basis that such rulings are outside the scope of their jurisdiction. In a recent case from Ontario, a couple who was interested in starting a business was first required to build a facility (real estate) in which to conduct business before their application would be heard by a regulatory tribunal. The couple later advised a newspaper, The Ottawa Citizen, that their application was denied. As a result, they lost a major proportion of their life savings, with no right of appeal to a provincial court. They had no other avenue of legal recourse against the tribunal, except to make an appeal to the provincial cabinet.
During the first Harris administration in Ontario, a government cabinet minister did confront a regulatory tribunal concerning its conduct regarding an application. Tribunal officials complained that their impartiality was being compromised by ministerial interference. The cabinet minister was subsequently restrained. Government officials who oversee economic programs and appointees to regulatory tribunals believe that it is their duty to act in the best interest of society's least advantaged citizens. But when government economic policy consistently fails to meet its intended objectives in the long term, when state officials consistently deny the failure of all state economic policy, when the state repeatedly uses the notwithstanding clause to override the rights and freedoms in the Charter so as to achieve some perceived economic objective, what we are witnessing is that the state and its tribunals are committing ongoing acts of abuse of state power against specific groups of citizens. Short term/Long term benefits Since A Theory of Justice was originally published, a large body of academic material to the contrary has subsequently been compiled by economists like Stigler and Coase. Their research is based on real world events and shows that quite consistently, while the state may enact and enforce policies that, in the short term, are aimed at benefitting society's least advantaged citizens, those same citizens often end up worse off in the long term as a result of eventual policy failure. This occurred in Ontario's rental housing market, under the Rae government. Rae endeavoured to improve the quality of low rent accommodations for society's least advantaged citizens, by getting tough with "slum" landlords. New minimum standards were imposed on the apartments they offered for rent. As a consequence, a massive decline in the availability of low rent accommodations soon followed. Greater numbers of disadvantaged people then needed to seek refuge in homeless shelters in Ontario's larger urban centres. If the Alberta government were serious about challenging the behaviour of the Wheat Board before the Supreme Court (see my previous column, CANADA IMPRISONS PRO-FREE-MARKET FARMERS, le QL, no 114), they would be stepping into the very sewer of backroom Canadian politics. Their legal team may attempt to present evidence of the long list of failed government economic programs and regulations which were originally intended to help Canada's least advantaged citizens, but actually harmed them more in the long term as a result of policy/program failure. On the other hand, the state's attorneys may be expected to present their case straight from the pages of John Rawls' A Theory of Justice. They would use this basis to defend the need for continued state economic regulation, claiming that the unregulated free market economy is inherently flawed. In this regard, they may even quote from John Maynard Keynes' General Theory, or from some other similar long debunked and long refuted text on economics. In short, they will argue that despite the repeated long term failures of earlier government economic programs and policies, government will always need to override the constitutional rights and freedoms of at least a segment of the population, for the primary purpose of acting in the best interests of Canada's least advantaged citizens. The claim that a tribunal like the Wheat Board exists for the purpose of assuring the interests of society's least advantaged citizens is not only totally ludicrous, there has never been any evidence to substantiate such a claim since its formation. Governments are abusing Canadian citizens politically and economically by maintaining a system of marketing regulatory boards and tribunals that regularly engage in such obnoxious practices as market entry restriction. The case needs to be made that regulatory agencies and tribunals such as the Wheat Board be required by force of law to recognise that the constitution is Canada's supreme law and that any law or regulation that is inconsistent with the statutes written in the constitution, to the extent of the inconsistency, be of no force or effect.
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