Justin Trottier’s Speech at Debate with Michael Coren on Canadian Law&Politics:Religious or Secular?
October 26, 2009
"What - if any - impact has Christianity had on Canadian law and in what ways have religious vs. secular worldviews contributed to the Canadian legal system?"
University of Western Ontario
October 8, 2009
Justin Trottier's Speech:
INTRODUCTION
I’d like to thank our hosts for the invitation to engage on this important topic. We do hear all the time that Canada was founded as a JudeoChristian country, and certainly it crops up repeatedly in debates ranging from the legitimacy of tax-payer funded catholic schools to the inclusion of god in the national anthem. So I’m very happy to have been given the pretext to do some in depth research on these issues and to be able to share some of my discoveries with you in a spirit of open discourse.
My name is Justin Trottier. I guess I should tell you briefly why I’m interested in this topic. I’m the Executive Director of the Centre for Inquiry, which is an educational charitable organization dedicated to building a secular society based on science, reason, secular humanist values and freedom of inquiry. We do this through educational programs - lectures, discussions and debates like this - as well as campus outreach, secular social and community services, multimedia outreach and political and social advocacy. In that latter area, we are very concerned with matters relating to church-state separation and government neutrality with respect to religion. We believe government should treat all its citizens equally and that the best way to do that is the tradition of secularism and freedom of both religion and conscience that is enshrined in our charter of rights and freedoms.
We believe that fundamentally Canada is a secular country but that due to certain historical artifacts Canada doesn’t always respect that secular heritage. That’s what we want to fix. So public funding of religion through tax payer catholic schools or special charity status for religion, these are issues we have concerns with.
Canada was built by Christians, undoubtedly, but was not built to be Christian. The central argument I’ll be defending tonight is that religion - while certainly one aspect in the building of Canadian society as well as its legal and political structure - was more tangential rather than foundational. I’m going to begin by reviewing a list of religious elements in our legal history, many of which actually have rather ambiguous motives while some are genuinely indebted to religion. We’ll then explore what the Supreme Court of Canada lists as truly foundational values in our legal tradition. This will open up a historical exploration of the origin of democracy, liberty, human rights, and fundamental freedoms. We’ll go way back to the earliest pagan civilizations, up through ancient greece and rome, to generally germanic and then specifically anglo-saxon and british legal history, and end in the enlightenment, as we trace the true development of our most foundational legal heritage. I’ll state at the outset that my central focus will be not just on Canada, but much further afield, as I try to get to the roots of Canada’s true heritage.
If any of you have seen exchanges between me and Michael on his television show, you might be in for a disappointment. Tonight will not be a back and forth exchange. Michael won’t be able to interrupt me or cut to commercial break immediately after sentencing me to hell. That’s because we each have a mere 20 minutes to present, and there is no rebuttal. That puts me in a bit of a disadvantage. What I’ll try to do is, after the history lesson, try to anticipate arguments Michael might be tempted to make and providing some responses. But, for strategic reasons, I won’t divulge that at the moment. Finally, I’m going to go on the offensive, asking what it is about certain legal systems that make them truly JudeoChristian, as opposed to others that also claim religious or Christian cover but which would horrify most of us. And I’ll conclude by stating that the values of scientific inquiry - openness, evidence, fallibility, consensus building - these are the truly foundational elements of our legal and political apparatus.
I also want to leave you with the thought that even if I fail in my attempt and you’re left believing that Christianity was a significant force in shaping Canada, that doesn’t imply going forward, in a changing context, that that should continue, nor does it imply that that significant force was always for the better.
Finally, I’m going to tell you what I’m not going to focus on in this debate. This is not a debate about whether you can be good without god. I’m not here to defend the ethics of secular humanism. That’s another topic entirely and frankly it’s a silly and an old one. Nor is this a debate about whether atheists or believers are more guilty of genocide and human rights violations. I’m sure Michael and I will have plenty of occasions to discuss those issues on his show, assuming he keeps having me back, back tonight our focus will remain on legal and political foundations.
SPEECH - CANADA IS NOT A CHRISTIAN COUNTRY
Let me admit at the beginning that yes in certain specific respects Canada might be confused with a Judeo Christian or a religious country in its government or legal system. But, many of these examples are ambiguous.
We have nationwide holidays, which are also religious holy days, such as Christmas and Easter, whereas non Christian holy days are not given the same status. But, most people do not observe these in a religious manner and the holidays are seen in a very secular guise. The Canadian anthem does contain a reference to God. But, in its original 1908 version written by Robert Stanley Weir this reference did not in fact exist. It was only added in with the national anthem act in the early 1980s. In some parts of the country "Sunday shopping is still banned, but on the other hand this is steadily becoming less common since it is hardly a significant legal statute. The charter of rights and freedoms does enshrine freedom of religion, but on the other hand it also enshrines freedom of conscience, which courts have interpreted more broadly then just religious belief. In these specific examples, and many others, Canada's JudeoChristian connections are at best ambiguous.
One more example. Denominational schools accord a religious privilege enshrined in law. In Ontario we continue to fund a Catholic school system. Is this proof that despite the decision makers being Protestant, Catholic values were to be enshrined in our laws? Hardly. The reason we're strapped with a catholic school system in Ontario is because in a very secular example of political maneuvering, a deal was brokered whereby protection would be accorded the minority catholic population in Ontario in return for Quebec's cooperation in confederation. This is a good example of how a protection for religion does not necessarily imply the motives were religious.
Now in other ways religion has played a direct and unambiguously important role in the creation of Canada's legal and political identity. Many organizations - religious and secular alike - have championed great advances in human rights, for example in abolitionism and the enactment of human rights. The Jehovah's Witnesses, for example, helped to popularize the idea of a Canadian Bill of Rights and established numerous libertarian precedents. In 1949, the organization launched a national campaign for the enactment of a Bill of Rights. This is very honourable and credit should go to a religious organization here. But a deeper question we’ll return to is, where did the very notion of a bill of rights come from?
So to summarize, religious groups certainly played a role in building Canada. That's not the issue. Certainly most people who built Canada were religious or at least outwardly Christian, like most people of the day. Again that's hardly debatable. What I'm trying to show is that there is far less evidence to support the bolder assertion that religious motives were decisive. And in the few cases where they might have been, such as with the Jehovah Witnesses and the Canadian Bill of Rights, we need to ask a much more profound question: Where did the notion of a bill of rights come from? Where did the concepts of common law, equality, justice and human rights, which ground our legal tradition in far more sweeping ways then anything mentioned above, where did those originate? These are far more fundamental and led to some of the major secular innovations, like having no official church, no house of lord's where participation was premised on religious title, a commitment to religious pluralism and a charter which could have been written by the skeptical deists of the enlightenment.
The Supreme Court of Canada has found that in analyzing the Constitution Act of 1982 which includes many of our foundational documents, that the law as written was inadequate. In 1998 the Supreme Court of Canada identified four "supporting principles and rules" that are included as unwritten elements of the very fabric of Canadian law: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Where did these very fundamental principles, and others like them, truly originate. After all, rule of law and democracy sound rather secular, not at all like the religiously backed divine right of kings for example. To explore that meaty question, I need to digress to a short history lesson.
The Real Origins of Our Legal Framework
The fundamental origins of our legal tradition are not religious. What are they? The Canadian legal framework is centred on British common law which has some 1500 year history and in many ways stretches back into the pre-Christian pagan and germanic past. In other instances it owes its origins ancient greek and roman, pagan legal codes.
Here's one example, since we need to start somewhere: Urukagina, king of Lagash in the 24th century BC, long before jesus was a glint in his father’s eye, established the first known legal code to protect citizens from the rich and powerful. Known as a great reformer, he established laws that required that charges against an accused to be stated before punishment. This is the first known example of any form of due process in the history of humanity.
In the 18th Century BC, Hammurabi of Babylon developed his famous law code, often seen as the first time anything like a constitution was developed that bound even the king. He also codified economics into the law, a good example of how laws were from the beginning concerned with profane matters of economics and good governance rather than how to appease god or get to heaven. Hammurabi is honoured as one of the 23 lawgivers depicted in the "United States Capitol" building.
Fast forward a mere millennia or so to ancient Athens under the famous lawgiver Solon. A reformer, Solon legislated for all citizens to be admitted into the Ekklesia - the assembly of citizens - and for a court and jury to be formed from all the citizens. By giving common people the power not only to elect officials but also to call them to account, Solon appears to have established the foundations of a true democracy.
In the pagan Persian Empire, citizens of all religions and ethnic groups were given the same rights and had the same freedom of religion, and slavery was eventually abolished.
The pre Christian pagn Roman citizen enjoyed a combination of positive liberty, such as the right to a trial, and negative liberty, such as the right to not be tortured. Many of the liberties enjoyed under Roman law endured through the Middle Ages, but then were enjoyed solely by the nobility, never by the common man. In other words during the Christian dominated middle ages more universal rights that had been slowing building during the pagan past were curtailed and their re-enactment had to wait for the Enlightenment with its deep skepticism of religious and other forms of authority.
The notions of a republic or commonwealth date back to roman and even ancient greek pre christian pagan concepts. Take for example the concept of “Res Publica” which forms our modern word Republic. The Romans developed the concept of Res Publica referring to the state or the commonwealth, and by which they meant all lands and property that was of public interest. This notion harkened back to an even early concept found in the ancient Greek concept of the politeia, the Greek city states of the first millenium BC.
As an aside, it should be noted that the legal code of the Christian roman emporer Justinian was just another development in the long tradition of western law. Conversion to Christianity didn't mean emporer's new laws superseded or revolutionized pagan codes but evolved on top of them. Justinian's code included existing imperial pronouncements back to the time of Hadrian second century.
In areas where the new code included religion in fact it was harshly regressive. Remember that the pagan roman empire made all free males citizens before the law regardless of religion or culture. Now, in the christian world, numerous provisions served to secure the status of Orthodox Christianity as the state religion of the empire, uniting Church and state, and making anyone who was not connected to the Christian church a non-citizen. The very first law in the Codex requires all persons under the jurisdiction of the Empire to hold the holy Orthodox (Christian) faith. Other laws, while not aimed at pagan belief as such, forbid particular pagan practices. And let's not even go into this Christian code's laws on Judaism.
Moving now to our more direct heritage, let’s look at Germanic legal history. Most importantly for the history of our legal system, Germanic law has the notion of precedent. For example, among the Franks the rachimburgs were individuals who memorized precedents and meted out justice accordingly.
Also noteworthy is that the Germanic monarchy had an element of democracy to it in that the king was elected by the free men from among elegible candidates. All freemen had the right to participate in general assemblies or things, where disputes between freemen were addressed according to customary law.
When Germanic tribes converted to Christianity, because Christianity is a literary religion they were encouraged to codify their laws and we can certainly credit Christianity here. What’s interesting is that when they were codified after the conversion to Christianity one thing they prioritized was settling the position of the church and Christian clergy within society, namely assigning the clergy to a parallel status with the secular nobility. So far from Christian values becoming imbibed in germanic law, all that happened here was that germanic law was hijacked to affirm the high status of the church. Germanic law then evolves during the middle ages for example with the advent of feudalism and the centralization of politics, but none of these have anything to do with religious or christian values but reflect changes in the thoroughly secular spheres of economics and politics.
Finally our legal system is most directly based on British common law. The central principle here is non-arbitrariness, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results. One ascertains the facts and evidence, locates relevant statutes and cases, then extracts the guiding principles to form a ruling. This is a very rigorous and accountable process based on the use of evidence and reason. It sounds more scientific and logical than biblical.
Common law is based on the notion that as trends in political, legal and social philosophy change and as societal contexts morph, courts can reinterpret and revise the law. It is based again on the notion of innovation and change in light of what works best in society, as we try among other things to maximize the good and happiness of our citizens. It is therefore a consequentialist legal system. Once again, this is the notion of cumulative and gradual change and innovation which is not religious. Monotheism is based on commandments that aren’t supposed to change. Our system is based on the commitment to constant reevaluation of legal and political knowledge. Again, that sounds scientific.
So what is the history of our common law system? Was it based on christian or general religious values? Nope. In the middle of the twelfth century, in a very classic example of entirely secular political maneuverings, King Henry II instituted a series of reforms meant to more deeply entrench the authority of the king. One of these was to send judges from his court to judge disputes throughout the country. These judges would discuss their cases and the decisions they made with each other, in time developing the concept of precedent.
Not only was common law not motivated by religion but it actually was motivated by a desire to remove power from religion. Henry II's creation of a powerful and unified court system was partly meant to curb the power of church courts. This brought him into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Henry wished to hold church members accountable for secular crimes. So common law helped reign in the power of religion, rather then being motivated by it.
In the reign of Henry's son John powerful barons forced the king to sign the famous Magna Carta, which was the first constitution or charter-like document in English history. Was this document motivated by religion, or by the Papacy? Hardly. Pope Innocent III believed in the uncompromising divine right of kings. He annulled what he described as the "shameful and demeaning agreement, forced upon the King by violence and fear." He rejected any call for restraints on the King, saying it impaired John's dignity.
Let's talk now about the specific invention of modern democracy and the origin of concepts like individual rights, liberty, freedom, and innovation, and accountability.
Where does the concept of modern democracy come from? Popular sovereignty is the belief that the legitimacy of the state is created by the will or consent of its people It is closely associated with the social contract philosophers, among whom are Thomas Hobbes and Jean-Jacques Rousseau. The social contract theory was among the first to provide a political classification of rights. The skeptical thinkers of the Enlightenment reasoned that law governed human affairs, and that law gave the king his power, rather than the king's power, divine or otherwise, giving force to law. Social contract, the consent of the governed, the will of people, where do we find these notions in bible.
Where does the concept of public accountability come from? The notion of accountability and fallibility to the governed, of experimental societies in which we make laws, see how they work and compare them to other societies, these are very situational and not commandment based. These are values within an open secular society which allow a society to have an open infrastructure in the first place. These are not religious values. They are the values of scientific inquiry that were rediscovered in the renaissance and enlightenment - which harken back to that rich pagan past - and we harnessed them onto a new social experiment and the social contract in particular which became the root of our political system. To me the values of scientific openness are much mor efundamental to our modern democratic experiment then judeo christian values, whatever those may be.
The fundamental values and concepts of our legal system - freedom, democracy, innovation - coupled with processes like common law - are the result of a long and slow 5,000 year history as we learned in a very secular manner what worked best. After all, if the bible calls for a modern pluralistic democracy, and if the bible was written by a century or so after Christ, why did it take 1500 years to build a society really and truly built on Judeo Christian values. What were we doing all that time?
Anticipating Counterarguments
Let me attempt to anticipate and deal with some points Michael might be tempted to make.
One argument you might here is that Canadian society is built on a religion, the religious of secular humanism. This point is also often made by those who would claim that by endorsing secular humanism as the reigning government sponsored religion, true secularism as in governmental neutrality with respect to church and state, has been violated. The problem with this is that secularism doesn't meet the most basic definition of religion. By what definition of religion and what definition of secularism humanism is the latter an example of the former?
Another argument often invoked is the need for a set of objective absolute values as a way to find - enforce might be a better word - common ground or consistency within a multicultural society. This fails for a number of reasons. No religion gives a thoroughly objective legal framework because no religion provide a thorough response to every conceivable situation, present or future. This is why legislative statutes must be complimented by precedent-setting common law. Christianity is relativistic through and through. To take a somewhat crude example, what happens if the 10 commandments are in conflict. What if my parents tell me to steal. Do I follow the biblical injunction to honour my father and mother, or the biblical injunction to not steal? How could a legal framework confined to scripture adjudicate? Or are we suggesting that theologians supervise judges to ensure scripture is interpreted correctly as part of judicial decision making?
Maybe we should look to the Vatican's canon law and follow that? But does canon law give us an absolutist legal system or set of statues. Absolutely not. In fact, the notion of change and innovation has crept into canon law almost despite itself through the concept of sensus fidelium, in which the learned experience of the populace could inform changing interpretations of theological concepts. For example, the mortal sin of usury, one of the worst sins of the middle ages against gaining interest on loans, was abandoned by the laity in the 15th century. Through sensus fidelium the papacity eventually issued a formal decree abandoning usury laws in the 17th century. It hardly needs to be said that lending money at interest is pretty foundational to western capitalistic societies.
So even direct canon law doesn't give objectivity and can't ground on its own our system and accepts changes due to very secular economic factors and changing circumstances. The only difference is that with the direct commitment to legal change inherent in true democracies, our system doesn't need 200 years to make those sorts of changes.
In summary - secular and canon law is law reflecting changes in society, not society reflecting god's permanent law. In fact, we can't attach a very human legal system to something unknowable. That’s the canon law lesson, and if it doesn’t work for canon law it certainly isn’t happening in Canada. Nor should we try to. Laws should be human centred, they should be about human rights and happiness.
On the Offense: Review of Religious Countries
The problem is religious books and values must be interpreted by humans to create very human legal systems. And many very different societies in very different times and places have claimed they were equally inspired by their Judeo Christian heritage.
To take an extreme but not unfair example, consider the Lord's Resistance Army, a sectarian guerrilla group in northern Uganda. It's leader, Joseph Kony, proclaims himself the "spokesperson" of God and in contact with the "Holy Spirit" Holy Spirit, and wishes to establish a "Theocratic" theocratic state based on the "Ten Commandments" Ten Commandments. During one intervierw, Vincent Otti, deputy leader, said the "Lord’s Resistance Army is just the name of the movement, because we are fighting in the name of God. people always ask us, are we fighting for the [biblical] Ten Commandments of God. That is true – because the Ten Commandments of God is the constitution that God has given to the people of the world. All people.” The LRA is accused of widespread "Human rights violations" human rights violations, including murder, "Kidnapping" abduction, and "Mutilation". Now of course most people react in horror and instantly distance their religion from this barbarity, insisting that this group is perverting religious and the bible. But by what judgement are you making that - a religious one or a secular and conscience based one? After all, if you're looking for support for murder, abduction, mutilation and human rights violations, the bible is your book.
Let's take a less extreme but still very damaging example. Recently the Archbishop of Ireland reported on abuses of church and state committed in the catholic school system. The Ryan report showed systematic abuses of children in the catholic school system, a staggering 30,000 children abused over 5 decades. This was condoned by the church-sanctioning legal system.
Think nothing like that could happen here? In the 1840s residential schools were setup to - and here I quote J. R. Miller in his 1996 book Shingwauk's vision: A history of Canadian residential schools - to convert "Indigenous peoples of the Americas" children to "Christianity" and to "civilize them". Children were often forcibly removed from their families, or their families were threatened with prison if they failed to send their children willingly. They were subject to "Corporal punishment" for speaking their own languages or for practicing non-Christian faiths, policies that have given rise to allegations of "Cultural genocide". Many students at residential schools were subjected to severe physical, Psychological and "Sexual abuse". "Justice Minister" "Irwin Cotler" called the decision to house young Canadians in church-run residential schools "the single most harmful, disgraceful and racist act in our history."
This is what can happen when church and state get into business together. But what part of this couldn't be justified by reference to the bible? The bible, if it's of any use at all, cleary isn't enough?
How does it tell us to choose between Quaker values of peace over crusader values of violence, both biblically justified? Or between the divine right of kings and pluralistic democracy, both claiming biblical justification? Between slavery and abolitionism, both claiming biblical justification? Between due process and trial by evidence on the one hand, and on the other hand the ordeal by fire in which god was expected to save the life of the innocent from burning? Between capitalism and socialism, both claiming biblical justification? Between homophobia and - no actually on that one the bible is pretty clear. In short, what would Jesus do, if he were building a society from scratch?
Conclusion
Allow me to make some concluding statements.
Keep in mind that even if my central thesis is incorrect and Christianity was fundamental to the legal apparatus of this country, that would not prove that going forward a JudeoChristian country - rather than a purely secular state - would be better.
But in fact the foundations of our legal and political systems are indebted to hundreds of years of human - not divine - thought and progress. It's important to understand the fact that these rights originate with us, and not some divine power, because it sends the message that we are empowered to stand up for what we believe to be right, and reminds us that if we don't do it, no one and no god will. Different interpretations of all sorts of books - religious and secular alike - should be brought together in an open public square where politicians are accountable to people and with a spirit of scientific, skeptical and open inquiry. That is the only successful way to run a country and that’s what we should cherish about our heritage.