Political Philosophy and Theory

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.

My colleague Professor Robert Gibbs (philosophy; dir. Jackman Humanities Institute) and I recently were awarded a grant to begin a 3 year project exploring reasoning in Islamic and Jewish law, and the implications of our findings for a philosophy of law more generally. I'd like to share our general proposal and methodological approach, and invite comments.

Our questions revolve around the general concern of the roles of reason and authority in interpreting and determining law in religious traditions. While the question of authority and reason arises in every legal culture, we propose to focus on these two traditions because of their explicit and extensive reflection on questions of reason, and in specific we will gain a sharper and in some ways more complex purchase on the questions by considering how jurists interwove resources that were intrinsically human, and so would be qualified as rational in their time, with both political and religious authority.

As noted in an earlier post, Prof. Ayelet Shachar recently published her latest book, The Birthright Lottery. It has received a considerable amount of attention.

A story on the front page of the "Insight" section of the Saturday Toronto Star ("Born lucky? Then pay for it," May 2, 2009) discussed Prof. Shachar's book and proposals in detail, and concluded that "Shachar has raised the bar on the discussion of equality." Read the full article on the Toronto Star website.

It was also the subject of a feature review by Andrew Coyne in the July/August 2009 issue of the Literary Review of Canada (LRC).

Prof. Shachar's work has also been profiled in the Spring 2009 issue of Edge, the magazine about research at the University of Toronto. Read the Edge profile (PDF).