The Quebec Charter of Values and Mill’s ‘Harm Principle’

world_religion2_thumb.gifI’ve been avoiding the question of what ethical theory implies about the Charter, since I simply am in no good position to answer that question. This is because

1) I’ve never devoted my philosophical attention to questions of secularism or multiculturalism, and

2) I don’t know very much about the Charter, its implications, the background. and the best arguments on both sides.

Out of curiosity, however, I checked in at a philosophical blog this evening and have read through some comment threads on the subject. My philosophical colleagues seem to be overwhelmingly opposed to the Charter. The main line of argument I saw (perhaps because it was used by the person who made the posts in question) seemed to go as follows: while a crucifix is clearly a religious symbol, many of the other items that government workers would be prohibited from wearing under the Charter (turbans for Sikhs, kippot for Jews, headscarves for Muslim women, etc.) are not so much religious as cultural. In fact, said the poster, the Sikh religious prohibition is against men cutting their hair rather than going without a turban. So if the Charter were to be consistent with its stated aims, it should prohibit Sikh men from wearing their hair long and allow the turbans. So (the argument continued), the Charter is ill-conceived. Moreover, it couldn’t be adequately improved (since in many cases the fine line between cultural and religious things is practically impossible to draw, etc.).

Again, I know very little about the Charter. But I have to admit that, based on what little I knew, I kind of thought it was a good idea! It was interesting to see how strongly opposed many philosophers were to it. I can see the point about it being difficult to differentiate between religious and merely cultural clothing and accessories (though the writer seems completely incorrect regarding Jewish kippot: having grown up Jewish, I can tell you that a kippa (skullcap) has a clear religious significance), and that cultural minorities’ clothing might easily trigger the reflexes of those enforcing the Charter much more than similarly cultural ‘western’ clothing might among the cultural majority. But still, I have some qualms.

For one thing, I recall a number of times when Sikhs and Orthodox Jews insisted that they should be permitted to wear their distinctive headwear into legion halls and as part of their RCMP uniforms despite the legion and RCMP regulations against such things. The reason given, as I recall, was that these are items of religious significance to those people and that their freedom of religion is thereby in jeopardy. Well, _if_ that’s the case then, it follows that these _are_ religious symbols and the above reasoning fails.

Here’s another, more fundamental difficulty for this particular anti-Charter line. Suppose that I have a couple of dreams in which a deity, who calls himself Hrashk-ulh, tells me that I need to wear my underwear outside of my pants, keep a lemon between my teeth whenever I’m not speaking, and walk around with a plastic ashtray strapped to my head on Mondays, Wednesdays and Fridays and a newspaper hat on Tuesdays and Thursdays. Suppose I convince myself that these dreams are genuine messages from God. Does that entail that I should be permitted to do those things, and that an employer who told me to wear my underwear inside my pants or find a new job is unfairly infringing on my right to religion? It doesn’t seem to: I think (though maybe I’m wrong) that most of us would have no problem with an employer — government or private — having a universal and exceptionless dress code that precludes doing that. But then, what’s the morally significant difference between this and any other(?) religion? Is it that Orthodox Judaism (say) is much older and accepted by more people? But that doesn’t seem morally significant. Why should we reward people whose religious beliefs happen to conform to others’? And surely, there was at some point the first Jew who got the message from God to start wearing something on his head. Why is his message from God any less crazy than the Hrashk-ulh one?

Again, I really know more or less nothing about the issue. These are just some things I, personally, wonder about.

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19 thoughts on “The Quebec Charter of Values and Mill’s ‘Harm Principle’

  1. Sob1989, in an earlier post included a link to the CBC discussion of the Charter and that in turn has a link to the legislation itself (Bill 60 now). Those interested in knowing more about it can read the bill which is available here.
    I know that some are looking at the harm principle (On Liberty, John Stuart Mill) as a way of thinking about the Charter which is, of course, an attempt by the State to limit individual freedoms.

    The harm principle holds that the actions of individuals should only be limited to prevent harm to other individuals. John Stuart Mill articulated this principle in On Liberty, where he argued that, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” An equivalent was earlier stated in France’s Declaration of the Rights of Man and of the Citizen of 1789 as, “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.”

    I would want to argue that public religious displays are harmful. Religion should be a private matter. Let’s see, today is Friday, so I must find my plastic ashtray!

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  2. Aha! In that case, part of this debate might touch on a philosophical area I know a little about after all. Mill’s harm principle, is frequently invoked in various debates. Mill was a great thinker. And the harm principle _seems_ to be a sensible one. However, it seems to entail some pretty bizarre things.

    Before I explain what those bizarre implications are, I want to clarify a little about what is meant by “harm to others” (or “injuring [someone] else” in France’s Declaration). I’ll investigate and clarify this by asking readers their reaction to the following story.

    Suppose that, in a certain neighbourhood, there is an old, very racist widow. She does little with her time but sit on her porch (facing a street with many pedestrians) and gripe about things. Her main pet peeve is the number of non-white people who have moved into the neighbourhood, and have positions of power in society, compared with decades ago. Nobody enjoys listening to her rants, and they are upsetting to several people. And the thing she hates most of all in the world is mixed-race couples. She finds it so upsetting to see or think about such people that she puts up notices around the neighbourhood saying that all mixed-race couples, if they insist on staying together, should avoid all signs of affection in public. Otherwise, she is liable to see them do this, and the sight could cause her to have indigestion or worse. Well, one day, a young mixed-race couple walk down the street holding hands, having decided to ignore these notices and just enjoy their quiet walk together like any other couple would. The old widow goes nuts. She starts screaming at them, making all kinds of ignorant comments. The young couple respond by smiling at each other and giving each other a kiss. The old widow gets so upset at seeing this that she has a heart attack.

    So here’s a preliminary question: did the young couple harm or injure the old widow, in the sense indicated by the harm principle or the French Revolution’s Declaration?

    If the answer is yes, then the harm principle easily becomes toothless against the Quebec Charter. All it would take to justify the charter would be one or more Quebequois to sincerely explain that they find it upsetting to look at religious artifacts, and that these upsetting experiences cause them genuine discomfort (indigestion, distraction, possible heart attacks, etc.).

    So, _if_ Mill’s harm principle is to be understood in a way that resists the Charter, these sorts of harms will have to be discounted. In particular, we will have to say in such cases that the racist widow’s backward opinions were the real cause of her heart attack, not seeing the mixed-race couple. In other words, we’ll have to say that being offended or upset by seeing something cannot, in itself, count as the kind of harm that justifies state interference.

    But… if _that’s_ how the harm principle is to be understood, some pretty wild things follow! I’ll mention them in a later comment.

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  3. Here is some further information from the faculty of law @ UVic that we have been looking at:

    To fully understand Canada’s “neutral yet supportive” approach to religious groups, a historical analysis of the statutory, constitutional and common law protections of religious freedoms is necessary. With the religious conflicts of the old World still fresh in the minds of colonial powers, Canada’s early history was marked by a robust protection for Protestants and Catholics. The roots of these protections can be traced back to the articles of Capitulation for Quebec (1759) and Montreal (1760), which granted the inhabitants of the cities “the free
    exercise of the roman religion.”
    The Treaty of Paris (1763), which put an end to imperial wars in Canada, clearly affirmed the rights of roman Catholics in Quebec. This was further articulated in the Quebec Act(1774), which expanded religious freedom by replacing the oath of allegiance’s reference to the Protestant faith, guaranteeing the free exercise of the roman Catholic faith (more protection than was given to Catholics in England!) and empowering the Crown to support the Protestant religion and clergy. and although the British North America Act(1867) had no specific freedom of religion provision, s. 93 did entrench the protection of minority roman Catholic and Protestant schools in Ontario and Quebec.
    The mid-20th century witnessed a dark chapter in Canada’s history for religious groups like the doukhobors in British Columbia and Jehovah’s Witnesses in Quebec under Premier Maurice Duplessis. in a series of events beginning in the 1930s up until the Quiet revolution of the 1960s, the challenges faced by Jehovah’s Witnesses at the hands of Quebec police,
    municipalities and provincial governments were indicative of Canada’s early history of religious freedom. The cases that followed illustrated the need for a constitutional remedy to limit the powers of the state.
    In Saumur v. City of Quebec, a Jehovah’s Witness challenged the validity of a by-law of the City of Quebec forbidding distribution of any book, pamphlet, booklet, circular or tract without permission from the Chief of Police. The SCC overturned the decisions at the trial and appellate levels by ruling that the by-law did not extend so as to prohibit Jehovah’s Witnesses from distributing their writings. rand J. established religious freedom as a “principle of fundamental character” and stated the following:
    Freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self expression of human beings and the primary conditions of their community life within a legal order.
    Thus, religion is interpreted as being much more than mere choice, but rather a fundamental aspect of identity, community and self-expression. This expansive view of religion stands in stark contrast to later Charter decisions like Brockie (before being overturned on this point by the Ontario divisional Court) and Chamberlain which would restrict religion to the private sphere or to the realm of belief and not action whenever it conflicts with Charter values.

    This bill will be discussed for a long time and if passed will be challenged in the courts.

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    • Thanks for this useful and interesting background, sob1989. I’m keen to hear your responses to the considerations I’ve raised in this thread!

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  4. Time to break out the Mill. 🙂 His “On Liberty” is an influential and short, well-written book; written with his wife. Get it; read it. And go here for an introduction.
    Quiz to follow!

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    • But before you spend your weekend reading Mill…

      … here comes the second part of the objection against Mill’s ‘Harm Principle’ (with thanks to Joel Feinberg, who first pointed this out in print).

      As I showed in my previous comment, if the harm principle is to do any work for us at all, it has to be understood in such a way that anything that merely offends one’s sensibilities or sense of propriety can’t count as harming someone.

      But if that’s right, then it seems from Mill’s principle that no power can rightly be exercised in order to prevent people from doing the things described in the following scenarios:

      WARNING: Don’t read this while eating!

      1) A man carries around hand sanitizer and sheets of plastic wrap. Whenever he needs to answer a call of nature while walking along busy downtown streets, he takes off all his clothes, spreads out the plastic wrap under him, squats down, and defacates onto the plastic. Then he carefully wraps it up to take it home, gets dressed again, and uses the hand sanitizer. Hence, no other pedestrians (or people at nearby outdoor cafes, etc.) are at heightened risk of infection: they just need to watch a man crapping on the street.

      2) A group of people ride public transit together and enjoy eating the most disgusting food they can think of: eyeballs, animal tails, disgusting-smelling things, stale and rancid food covered with mold, and so on. Before doing this, they spread out a wax-covered tablecloth. They deliberately fart and burp while eating, chew with their mouths open, spit out their mostly-chewed food onto their hands to show each other and the other passengers, etc. Doing this is so disgusting to them, they often throw up onto the tablecloth. Then, they use the vomit as a sauce for the food. When they arrive at their stop, they carefully fold up the tablecloth and take everything with them. They spray sanitizer on the area so that nobody can be infected.

      3) A number of people start having sex on the buses for a thrill. They do this very openly. Some of them are completely nude, others are wearing sexual outfits that many people find obscene. They bring all sorts of strange sexual aids with them and use them very openly. They shout loudly about what they want others to do to them, what they want stuck where, and how much they are enjoying what is currently being done. While they sometimes handcuff themselves to parts of the bus, they always leave enough room for other passengers to get by to or from the doors. The first time you encounter them, you are out with four generations of your family on an outing to a public event. Your five- and six-year old relatives are quite taken by what is happening, and ask several questions about it of their grandparents. And so on.

      4) Another day on the bus, a bunch of people get on carrying a coffin containing their grandmother. It soon becomes clear that they are doing this on purpose because, for some trivial reason, they disliked her and didn’t think she deserved to ride in a hearse to the graveyard. As they sit there with the coffin, they start telling nasty stories about her, swearing audibly and being very disrespectful. Then, one of them gets an idea. They open the coffin and start spitting in their dead grandmother’s face. One of them laughs and starts recording them as they swear at their granny, jab their fingers in her face, and slap them (the idea is to post it on Youtube later on). Finally, one of them takes out a hammer, says, “That’s it!”, and starts smashing in their grandmother’s face to the applause and cheering of the other ‘mourners’. (Note, of course, that they don’t seem to be harming the grandmother, since she’s dead and can no longer be harmed. What they are doing is outrageous and unbelievably disrespectful and callous, but it isn’t clear why it should count as ‘harm’).

      5) Some women, a few of whom are sexual assault survivors, join in a ‘Take Back the Night’ walk together. They take a bus on the way home, and some men deliberately take the opportunity to disturb them with t-shirts with horrible anti-women slogans. These men joke very loudly among themselves, saying that all women who get rape deserve it. Haven’t they done something wrong? But if they’re ‘only’ offendng the feelings of the other passengers, are they harming them in a way that violates Mill’s principle?

      6) Most urban transit systems also have rules against playing amplified music. Is this defensible under Mill’s principle? What about this: some advertisers start paying people to go on buses (or perhaps stand at various places on downtown streets, throughout public parks, etc.) with boom boxes and speakers, playing advertisement after advertisement all day long. This would certainly be very annoying to the rest of us, but would it _harm_ us?

      It seems that all these things should be permissible on Mill’s harm principle; but it seems clear to me at least that it’s legitimate for some of them to be prevented (forcibly, if necessary). And if that’s right, then Mill’s principle is not correct.

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      • Philosophical conversion
        The plain man (as envisaged by the naive realist) is perfectly content to “tie his shoes” until the philosopher (skeptic) points out that, strictly speaking, it is only his laces that he can really tie.

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  5. Thanks to all of you for the comments and information. We will spend some more time next week on the discussion of Mill, the Charter, and the ‘harm principle’.- and the political process that will play out. Since consequences cannot be known it is important to try to get it right and to provide a means for changes as the need arises.

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  6. The Inuit practiced a form of shamanism based on animist principles. They believed that all things had a form of spirit, including humans, and that to some extent these spirits could be influenced by a pantheon of supernatural entities that could be appeased when one required some animal or inanimate thing to act in a certain way. The angakkuq of a community of Inuit was not the leader, but rather a sort of healer and psychotherapist , who tended wounds and offered advice, as well as invoking the spirits to assist people in their lives. His or her role was to see, interpret and exhort the subtle and unseen. Angakkuit were not trained; they were held to be born with the ability and recognized by the community as they approached adulthood.

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  7. great classroom discussions this week! We discussed self/other regarding acts with some funny examples raised by students. We agreed the harm principle is an important tool for analyzing proposed laws. We thought that since consequences are hard to predict it is best to have trial periods for some laws. We came to the conclusion that there is a difference between moral/religious/legal restrictions. And finally we agreed that religion should be a private and personal business and the state should attempt to be quite separate.
    Obviously, none of our findings are binding on the government.

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    • Sob1989 wrote: “We came to the conclusion that there is a difference between moral/religious/legal restrictions. And finally we agreed that religion should be a private and personal business and the state should attempt to be quite separate.”

      Both these conclusions seem sensible! But, how do they interrelate, particularly in regard to the Quebec Charter?

      One might say, on the one hand, that since religious restrictions are a private matter, there should be no legal or political restrictions on any citizen’s acting on the dictates of his/her religion, so those whose religions entail wearing religious symbols (and perhaps doing all sorts of other things) should be able to do so at work even if they work for the government.

      Or, one might say that since religious restrictions are a private matter and the state should attempt to be quite separate, the state must avoid religious symbols and practices, and those who voluntarily take on jobs as agents of the state must avoid using those symbols on the job. Those working as teachers in public schools must avoid putting up decorations of little baby Jesus on Christmas in the classroom; judges cannot nail up the ten commandments in their courtrooms or wear badges that say “Jesus is Lord”, and so on.

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