Stephen Harper versus the intellectuals, part 2

The case of Tom Flanagan

Someone mentioned Tom Flanagan, so I thought I’d add a small footnote to the whole Flanagan “child pornography” story (documented in his book, Persona Non Grata, quick summary here), explaining a few things that may not be so obvious to non-academics. There are a lot of people, myself included, who have very little sympathy for Tom’s politics, or the contributions he has made to Canadian public life. And yet there were very, very few of us who did not feel some sympathy for him, after the mobbing he endured from the conservative movement in 2013 – spearheaded by Danielle Smith, the leader of the Wildrose Party at the time, as well as Prime Minister Stephen Harper’s office.

It’s important to understand that, in piling on Flanagan the way they did, they managed to do more than just traumatize him, they also alienated pretty much every conservative intellectual in the country. The reason is that the view Flanagan got pilloried for expressing was not some wild-eyed extremism, it was an extremely mainstream view in political and legal philosophy. Indeed, his argument was taken straight from the pages of John Stuart Mill’s On Liberty – and as such, is one that most of us academics who work in political or legal theory have taught to students. I myself have actually used Canada’s child pornography law as an example in the classroom of a law that Mill would have objected to.

So when Smith and Harper and the rest went nuts on Flanagan, anyone who knows anything about political theory, or anyone who is familiar with John Stuart Mill’s most famous work, took a step back and said “wtf is wrong with these people”? For Smith – who claims to be a libertarian – the reaction was inexcusable, since what Flanagan was expressing was an extremely modest principle in defence of individual liberty. But even if you’re not a libertarian, there’s no excuse for failing to recognize that what Flanagan was expressing was a mainstream and respectable position in conservative intellectual circles (sometimes called “classical liberalism”). I mean, he was practically quoting Mill (this is what he said: “It is a real issue of personal liberty to what extent we put people in jail for doing something in which they do not harm another person…”).

You shouldn’t be able to get in that much trouble for chanelling John Stuart Mill!

Okay, let me back up a bit and explain all this, for those who aren’t so familiar with On Liberty. In that book, Mill articulates a principle that went on to become one of the most influential legal ideas of the 20th century. We call it the “harm principle”:

As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it… but there is no room for entertaining any such question when a person’s conduct affects the interest of no persons besides himself… In such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.

Basically it says that, unless your action can be shown to harm some other person, then it should not be subject to legal regulation. Even if your action is harmful, if the only person being harmed is yourself, then the state has no business forcing you to stop. The action falls within the sphere of personal liberty.

Now obviously a lot of complications arise when you try to explain what should count as a harm, how you draw the boundary between self and other, etc. Nevertheless, the principle came to be extremely influential, leading to a strong shift in both public and legal opinion against “paternalistic” legislation. This led to a series of 20th century court cases, striking down various forms of legislation that were thought to be unreasonably intrusive – the most famous being laws prohibiting the use of contraception, adultery, as well as laws that prohibit various non-procreative sexual acts. Undoubtedly one of the most influential consequences of this principle was the legalization of homosexual relations – on the grounds that, since they involve relations between consenting adults, they cause no harm to anyone else.

Another significant consequence of Mill’s principle was the legalization of pornography. There were, of course, intense debates (before the internet) about whether the consumption of pornography caused harm to others. The important point is that feminist critics of pornography largely accepted the Millian premise, that in order to make the case for prohibition, they needed to demonstrate a harm – thus they tried to show that consumption of pornography increased the propensity to rape. All sorts of studies and evidence were bounced back and forth, but suffice it to say that this argument did not win the day.

Turning now to the case of child pornography, what does Mill’s principle have to say? In the case of actual photos that depict actual children, there is nothing controversial about criminalizing the consumption of child pornography. To the extent that consumer demand encourages production of the material, it is easy to show the harm that is caused. The issue with the law in Canada is that it is much broader, criminalizing possession of material that includes drawings as well as mere descriptions (i.e. literature). To take the example more resonant in contemporary society, probably the majority of Japanese hentai comics are illegal in Canada. This is something that people have objected to from the very beginning. (I’m old enough to remember when the original act was passed, under Mulroney in 1993. People made exactly this complaint, and there was widespread public debate, with many people taking the same position that Flanagan took.)

So consider a work of child pornography whose production involves no actual children (say, a Japanese comic). Wherein lies the harm in possessing it? Here, if you want to satisfy Mill’s harm principle, you have to make one of two arguments: either that it causes increased propensity to rape, or that it damages the “moral fabric” of society. Both of these arguments have obvious problems. The “propensity to rape” argument tends to suggest that, if anything, all pornography should be illegal (absent some fine-grained evidence to show that depictions of 17-year olds and depictions of 19-year olds have dramatically different causal properties). The “moral fabric” argument is the same one that was used to defend the criminalization of homosexual relations – an argument that has not fared well in today’s legal culture.

There are lots of other fancy arguments that could be brought to bear upon the issue. All I want to point out is that if you take a very standard Millian perspective – which is a very mainstream view in contemporary constitutional jurisprudence – then Canada’s child pornography laws have some very serious problems, since it appears that they unjustly impinge upon individual liberty. Anyone interested in an academic legal view on Canada’s law is encouraged to read this article by Bruce Ryder, of Osgoode Law School. He summarizes his basic objection to the problematic parts of the law as follows:

The law causes harm to society by suppressing thoughts and expression concerning child and youth sexuality that involved no harm in production, fall short of advocating harm and that have at best a tenuous connection to the commission of harmful acts. The child pornography offence criminalizes a range of creative expression in the absence of any persuasive evidence of a risk of harm (103).

So what exactly did Flanagan say? Basically the same thing. He specifically pointed to the way that the law criminalizes depictions that involve no abuse of actual children, then questioned whether it was reasonable to jail people for actions that would appear to involve no harm to others. Actually, he didn’t even question it. He just said that it raises “a real issue of personal liberty to what extent we put people in jail for doing something in which they do not harm another person.” This is basically the same thing that Ryder says in the article linked to above, and the same thing that many, many academics have said about the law.

The point of this somewhat lengthy discourse is to explain some of the subtext of what Flanagan calls “the Incident,” which may not have been apparent to everyone — to explain why Harper evokes such loathing among not just people whom he has attacked personally, like Flanagan, but among intellectuals generally, the sort of people who can recognize a reference to John Stuart Mill when they hear one.

I guess what I’m trying to say is, today’s conservative politicians are such awful, know-nothing reactionaries, they made me feel intellectual solidarity with Tom Flanagan!


Stephen Harper versus the intellectuals, part 2 — 8 Comments

  1. First time reader and I wont be back so don’t worry.

    1) Perhaps Harper doesn’t listen to “intellectuals”, do you really mean social scientists?, because he aware of quality of their work. Tetlock illustrates very well the quality of experts work, maybe Harper has read a book or two. Harper knows the infinite monkey theorem and doesn’t think it good way to do policy.

    2) I am not JS Mill expert, but what are Mill’s thoughts on corporal punishment? Jail was pretty harsh 150 years ago, not country club it is now, perhaps Mill would want person who raped child, and whoever took the photo, put in jail because they have clearly harmed child while people who possessed child porn photos would be flogged?

  2. And I should point out I am not Harper fan either because he does actually listen to “intellectuals”, The State employ thousands of them, they just have different ideas than you and your colleagues.

  3. Oh grow up.

    We all know that the harm principle, like most of Mill’s work, is incoherent and only ever applied selectively, because we don’t have a rigorous and shared notion of harm. Why substitute one debate with unclear norms and definitions (“should this be illegal”) for another equally unclear one (“does this count as harm”) but that is now at one remove from the question at hand? Normally, it’s an attempt to deny opponents adequate language to express their viewpoints. That’s not good, and it’s particularly bad when this kind of parlour game is used to try and legitimise such vile content.

    We don’t want to live in a society full of child pornography. Yes, that includes filthy Japanese cartoons. Tom Flanagan is a hero on many levels, who has spent his career fighting, and winning, in multiple worthy causes. But he got this one badly wrong.

    • I don’t think what’s happening here is the substitution that you suggest. The point of the harm principle seems to be to suggest a grounds by which legality and illegality should be determined. If “harm” is defined too vaguely, then we either need new grounds for the legitimacy of laws, or a more refined definition for the word. Either way, saying that the grounds on which we imprison people is an issue of personal liberty is correct (that is what’s being taken away, after all). If a university professor can’t have a discussion about moral issues–including whether or not particular laws are just–without everyone assuming that the professor holds an immoral position, then we have a bit of a problem.

  4. I don’t even know where to begin with these comments as they seem to presuppose that whatever a majority wants to criminalize, so be it, without regard to individual or minority rights.

    If something should be the law, just because a majority think so then there’s no real point in arguing; let’s just take polls.

    What Mill was getting at is that absent demonstrated harm, you may lack a coherent rationale capable of convincing people acting reasonably without force.

    Put another way, and drawing on Locke in his letter on toleration, in order to have functioning minimally repressive societies, you can’t have a right to not be offended, unless you love totalitarian states and no liberty, because, colloquially, I might be offended by your shoes so you can’t wear them and you might be offended by my shirt so I can’t wear that, but clearly that’s not universalizable and so it’s incoherent writ large, unless of course you think a democracy need only legislate in the interests of the majority without regard to actually having any justifiable reasons. If so, I guess that’s should all just leave this blog and any other commenting, criticism or discourse alone, because what’s the point.

  5. “Why substitute one debate with unclear norms and definitions for another equally unclear one but that is now at one remove from the question at hand?”

    But this is how academic careers are built! There are countless shelves of scholarship (and sometimes whole subfields or schools of thought) that amount to nothing else.

    That being said, although it’s certainly true that these kinds of arguments are sometimes deployed as “attempt to deny opponents adequate language to express their viewpoints”, I don’t think that is quite true of Heath here. Or, rather, it is true, but he’s rather up-front about it, because he is (commendably) direct about what does not count as harm, viz., the “‘moral fabric’ argument… an argument that has not fared well in today’s legal culture”.

    Is the same thing true of political culture? Yes, but selectively. For instance, the mayor of Toronto recently spoke in support of a campaign to prohibit a speaker in the city who was essentially accused of being damaging to its “moral fabric”.

    The application of moral principles in politics always seems to wind up being rather selective. Experimenting with Millian (and other) frameworks in the classroom can be a great way to challenge students, and get them thinking more critically. I’m not sure how much we can or should expect that sort of theorizing to structure political debate. It’s certainly true, however, that academic language can foster a level of abstraction and jargon which distracts from what is really at stake in politics.

  6. Harper has built a counterintuitive coalition of economic libertarians and reactionary authoritarians. The mix is inherently unstable.

    The Libertaians I’ve met are getting very tired of Harper’s antics but I believe Harper is gambling that most of them will simply vote Conservative because they have no alternative, and there really aren’t very many of them. The real base of the modern Canadian conservative party is made of reactionary authoritarians. They are a group that trends older or comes from cultures that still are guided by rigid social and family hierarchies.

    This is a segment of the population that disagrees with almost everything post 1965 Canada. They don’t like our “sissy” flag; they don’t like multiculturalism; they dislike any policy that distributes power more equally in society (so they hate judges who rule against discriminatory legislation that violates the charter…and they especially hate the offspring of the man who directed the creation of our written constitution and charter).

    So when Harper rails against Flanagan, he’s just playing to his real base. It’s that simple. Serial cynicism and hypocrisy. It’s what Harper and the likes of Pierre Poilievre, Daniele Smith and Jason Kenney DO.

  7. Between suppressing scientific research done in the public interest, the G20 fiasco, bill C-51, eliminating the long-form census, and all the criminal justice reforms, it’s hard to see why any reasonable person would support Harper at this point. There’s no consistent ideology here.

    Request: Joe could you do a piece on Basic Income policies sometime soon? A recent piece in the Star by Danielle Martin suggested that the notion is gaining traction across Canada, if not elsewhere as well. I’m curious to see what policy comes out of the recent lobbying that’s so specific to the medical community, especially in a place like Canada where medicine and healthcare spending has a central place in discourse over public policy.