February 10th 2018


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COVER STORY Blackouts due to closure of coal-fired power stations

EDITORIAL Behind China's push for global power

CANBERRA OBSERVED The left's appetite for change can't be satisfied

POLITICAL PHILOSOPHY The Four Ideologies of the 21st century: Transgenderism, Libertarianism, cultural and Economic, and Radical Environmentalism

SEX-TRAFFICKING Meet modern slavery - in your very suburb

EUTHANASIA Delivering Victoria's death law: an unedifying spectacle

ENVIRONMENT Too hot? Too cold? Blame global warming

OPINION Report on child sexual abuse aimed at Church

FREEDOM OF RELIGION 'Equality' and equally disingenuous terms

INTERNATIONAL AFFAIRS Saudis, Israel confirm Middle East alliance

OBITUARY To the memory of a multimedia Chestertonian: Tony Evans

MUSIC Straight to the heart: for the listener, at least

CINEMA The Commuter: And my criteria for reviewing films

BOOK REVIEW Essays take 'settled science' to task

BOOK REVIEW A pathway through a tangle of nonsense

BOOK REVIEW Quarterly Essay

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FREEDOM OF RELIGION
'Equality' and equally disingenuous terms


by Professor Iain Benson

News Weekly, February 10, 2018

Professor Iain Benson is an academic, lecturer and practicing lawyer in constitutional law and human rights with particular focus on freedoms of association, conscience and religion. He is Professor of Law at the University of Notre Dame Australia in Sydney.

Professor Benson delivered the following speech to the NCC’s National Conference in Melbourne in February 2017. It has been edited slightly for length.

Our cultures are in a condition we may call “full drift ahead”. The West has implicitly if not explicitly decided that we can embark upon cultural development without attention to metaphysics, and in particular with no intention to moral discussions of what is right and wrong, what is good and what is beautiful and what is true.

Professor Iain Benson

The term “values”, which even appears on the banner of the NCC, is a really troublesome term, but it’s just one of a clutch of troublesome terms. It’s one that George Orwell, in his famous 1946 essay on politics and the English language, identified as a meaningless word, along with “equality”, and “progressive”. I would add “inclusion”. And I would add many terms that are used in contemporary rhetoric that obscure moral discourse rather than further it.

Joshua Forrester from Murdoch University law school nailed it: “Vagueness is the favourite tool of authoritarian regimes because it doesn’t require accountability.” Accountability is a relationship with a thing that’s clear; the fuzzier a thing is, the easier it is to operate within it. Orwell understood this, and he identified “values” as such a term.

Canadian philosopher George Grant said “values” is “an obscuring language for morality, used when the idea of purpose has been destroyed”.

Think about that for a minute. “Values” stands in for moral language, but actually obscures it, and will operate in a bigger realm in which purpose has been destroyed. Now, “purpose” was the way in which the Greeks understood you had to evaluate techniques. Techniques, processes, can only be evaluated in relation to their purpose, or their ends. So, in this society, which uses language from the marketplace, “values” is made to stand for the moral notion of “virtues”.

Thirty years ago I used terms such as “value”. I don’t do it anymore, and I urge my students not to do it, and I’ve spent a lot of time exposing “values” language, because it is eviscerating law. It is eviscerating culture. It is eviscerating economics. It is eviscerating politics. You cannot have a language of engagement if the language you are using partakes of the confusion you are trying to overcome.

Call things by their names

The insight here is about naming things accurately. John Henry Cardinal Newman also talked about the need to be accurate in your terminology. “Values” isn’t going to help us. “Values”, which is what we were all raised in, has obscured our moral discourse. Why? Because you have your values, and I have mine, is the primary axiom of the “values” universe. The secondary axiom is, “don’t push your values on me”.

This sort of language is in fact doing two things: one, it radically subjectivises and individualises the idea of what morality is; and two, it declares that one person’s moral choices have no necessary relevance for others.

Virtues don’t do that. In the stature of the virtues that we inherited through the Greeks, the Romans, and the Christian tradition; the four cardinal virtues: justice, wisdom (prudence), moderation (temperance), and courage (fortitude) – were perfected by the three theological virtues: faith, hope, and charity (love). The greatest of these, “love”, changed the cardinal virtues. It perfected them.

The cardinal virtue of justice is perfected by love. It doesn’t take long to teach that. Years ago, a book of stories by William Bennett, education secretary under U.S. President Ronald Reagan, was a publishing phenomenon. It was called The Book of Virtues. The publisher had wanted Bennett to call them values, but Bennett refused. He said The Book of Values would be the Coles catalogue.

“Values” essentially is a commodity term from the marketplace: the value of something; its price. The virtue of something has a wonderful difference. How we are as individuals in a relationship to the virtues is personal, but it is also shared. For example, if my first nature is to be a timid person, in relation to the virtue of courage, when I learn what courage is through story and education, I look at my first nature and adjust it through moderation; through learning and education, so that I become less timid and more courageous.

If, by the other hand, my first nature is to be a rash person, the first person over the table in the bar fight or the first person to jump in and say things without properly listening, thus lacking the virtue of moderation, I have to adjust down my first nature as a rash person. Instead of adjusting it up to become more courageous, I adjust it down so as to be less rash.

So, the virtues are something that we share but we don’t lose ourselves or our evaluation or our first nature by cultivating them. What we do is we adjust through habit, what was called habitus, so that we become more virtuous, until it becomes second nature to us.

Society still has shards, broken pieces of this tradition. That’s why we can have a learned paper by a learned man that mixes “virtues” and “values” as if they were the same thing. That’s why we can have an essential, cultural organisation like the NCC that has the word “values” on its banner.

This is very, very serious, and it goes right to the top. It goes right to the top of the very Church I joined at age 33. I’ve heard this language, I’ve read it in encyclicals. It can be in encyclicals even though, when you go back into the original Latin, there is no term for “values”.

This is something that we have to change, in our time, in our Church if we’re Catholics, and in our society widely if we’re not Catholics. It is not a question of going back; that language doesn’t get us anywhere. It is a question of re-understanding and relearning; rejigging how we engage with a culture that is morally adrift.

Human rights idolatry

I want now to show you some of the things that are confusing in how we understand human rights. How we understand the state as law and politics will, in many ways, determine how we understand civic associations, of which religion is one.

The catastrophe that’s occurring through the economic policies that the Australian Government has adopted could stand as a lesson in this regard. Those economic policies are promulgated on a particular understanding of the role of government versus the role of civil society; they’re promulgated according to a set of priorities that the contemporary economic system imposes, and are facilitated by law, which assume certain things about human communities. The imperilled condition of the manufacturing sector in Australia is the consequence of a set of choices. Or, take the example of my own students in Sydney, all of whom are law students. I ask them, how many of you eventually anticipate being able to buy a house in Sydney? And you know what the answer is? None of them. Our young people no longer have hope that they can have a home. How more basic can a cultural catastrophe be than that?

Now, how much worse can it be that we combine not having a home with not knowing what language or what moral framework to teach within? When we have displaced virtues and lost them in this sea of plasticity called “values”, we set ourselves up for a whole series of internal and external moves that are absolutely catastrophic for family life. And we have done that because we have chosen it. We have chosen to put profit ahead of life; material success ahead of quality of life. And the result is that we are building things that in many cases people don’t need, using the careful manipulation of advertising to sell them, and damaging the planet in doing so.

I have driven and flown across country after country where the same pattern can be seen: the emptying of the land into the city; and the replacement of the steeple with the bank logo. The world we live in places its icons on the top of its tallest buildings, and they are no longer crosses; they are now bank logos, throughout the whole world. This is what is called “worship”. We have chosen mammon over God. It is not just a question of economic policy; it is full-scale idolatry. That is my first point with respect to human rights.

A Canadian of great learning and teaching at Harvard University called Michael Ignatieff, wrote a book called Human Rights as Politics and Idolatry. Human rights are becoming an object of idolatry. People are looking at human rights as replacement for religion. Remember, both Karl Marx and French 18th-century philosopher Jean-Jacques Rousseau, philosophers with great impact on the modern world, saw the need to replace religion with something else, or implicitly replace it with something else. Rousseau wanted to banish prior religion out of the public sphere and replace it with civic religion.

We are more afraid of religion in our own time, so we have come up with the fantasy of the neutral state: the idea is that the state makes no metaphysical claims about right or wrong, or good and true. But it is a false idea. Linguistic philosophers Owen Barfield and Michael Polanyi have exposed that you can hide faith in assumptions. One of the ways is to say: “Ah, we live in a secular society in which religion is over here, and all the moral questions are over here on the opposite side.” But it’s not true. Your moral questions are just hidden, and you call them something else.

It is the same with law. Law is filled with moral assumptions and moral questions. Moral philosopher John Rawls, the most influential theorist in the 20th century, said that his theory was political, not metaphysical. Is that true? Can you have politics without metaphysics?

What are metaphysics? It’s what is not measurable empirically. And that is “justice”. You can’t have a kilogram of justice. So, how can you have a central theory of law about justice that is not metaphysical? It’s nonsense. And yet Rawls’ idea is massively influential. He was trying to come up with a theory that would link contemporary theories of law with the notion of “fairness”; justice is fairness. But this is just a car running on empty, fuelled only by the fumes of a prior age.

Liberalism in its early phases depended on Judeo-Christian sentiments. Well, as those have vanished, our students no longer understand parables. You know, I can ask a class at a Catholic university who knows the parable of the Good Samaritan, and what percentage of students know it? A tiny minority. That is troubling, not because you cannot understand truth without parables like the Good Samaritan, but because you cannot understand your tradition without the parable of the Good Samaritan, and it is within tradition that narratives about truth are passed on.

So the first thing to understand is that vague terms such as values, equality and discrimination are being used in a framework that is implicitly religious. If you wonder why zealots for human rights are so passionate, it is because they are the new fundamentalists. They have the fervour of the religious, and they have the hope that by driving their theories, they’re going to bring about a better society.

It’s really a claim for justice. The problem is that it does not go hand-in-hand with a respect for diversity. They use diversity to get access to the category of the public, and then systematically dissolve it for everyone else. They drive home homogeneity; everybody then has to accept the new category. The redefinition of marriage is a good example.

Marriage a major target

In 1994, I sat on the bench at the Supreme Court of Canada in a case called Egan and Nesbit. It was the first case before the Supreme Court of Canada and one of the first in the Western world on same-sex conjugal rights. Council for Equality for Gays and Lesbians Everywhere, a highly sophisticated and successful gay activist group in Canada, argued that gays and lesbians are not interested in marriage; it’s not their institution, she insisted.

She argued against our intervention on behalf of the inter-faith coalition in which we said, “don’t change the term ‘conjugal’ in this benefits legislation, because it’s going to impact marriage”. She said: “Nah, it’s got nothing to do with marriage.” Well, 1994, that’s yesterday. What has happened since?

How many cases have I been in at different levels of court, including the Supreme Court of Canada, in which the claim was made that gays and lesbians aren’t interested in marriage? Well, they are interested in marriage. Then they protest: “Well, actually, you can’t criticise our concept of marriage.” And then they say: “Your charitable status should be revoked because you don’t endorse our view of marriage.” And then: “Your school system [a quality Catholic school system] needs to have our clubs in it.”

American political theorist William Galston calls this “civic totalism”. It is the modus operandi of people who believe that their views should be mandatory throughout society. They do not believe in diversity and “live and let live”. They believe in cultural domination. It is the Bolshevik strategy: get control of the nodes of culture – the media, politics and the courts – and change the culture from within.

Sociologist Peter Berger said that two institutions had been truly secularised: the media, and the higher echelons of the legal establishment. And that’s true. You don’t need much more if you’ve got the law and you’ve got the media. The law will determine what happens, and the media tells you what’s happening.

Donald Trump took on the mainstream media, and was well received for doing so. Why? Because people realised that the media was not telling the truth about what is going on, and had lost confidence in it. There has been a corresponding loss of confidence in the elites, whoever the elites are. All Trump had to do was inveigh against political correctness and express all these other feelings that we had repressed.

Secular v religious: a false dichotomy

For this, Trump was reviled for “hate speech”. But hate speech is just the tip of the iceberg; it is one way of controlling, but there are going to be plenty of others. They are coming because terms that are essential to the framing of law are being subverted.

Let me give you an example of this: the “public sphere”. What do we mean by “public”? “Public” has come to mean “non-religious” by conflating it with a debased understanding of the word, “secular”. “Secular” used to mean “the times” or “the ages”, in contradistinction to “eternity”.

In the 1850s, about the same time that “values” started to displace “moral”, “secular” shifted to mean “non-religious”. Thus, when we say that the public sphere is “secular”, what we mean is “non-religious”. So, if we continue to speak about the “secular”, rather than what we mean, which is the “public”, and then fail to grasp that the public includes everyone, we are excluding ourselves. Likewise if we fail to remember that everyone is a believer – because everyone is, atheists as well; you have to believe in something or you can’t function. Everyone is a believer; the question isn’t whether they believe, but what they believe in.

But we have accepted all these dualisms: believers, non-believers;. secular, non-secular. The result being to exclude religious belief from public relevance. Even in the economic sphere, religious beliefs and the religious insights of our culture and subsidiarity and solidarity are taken as irrelevant. They are relevant, but they have been driven out by this anti-metaphysical, post-Enlightenment fray that we live in.

American theorist Stephen Macedo wrote a book called Liberal Virtues, saying that the idea of liberalism is that eventually the whole world will be like California. William Galston, thank goodness, disagrees with Macedo, and has written to challenge him. He says: “An account of liberal democracy built on a foundation of liberal pluralism should make us very cautious of expanding the scope of state power in ways that mandate uniformity.”

Albie Sachs, a recently retired judge from South Africa and an atheist, has written some of the best passages of law about religion I have read anywhere in the world. More sensitive and more understanding of religion’s importance to culture than anything the Catholic Education Judiciary in Canada has come up with in 50 years.

Sachs wrote: “Equality should not be confused with uniformity. In fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour, but an acknowledgement and acceptance of difference.”

Former Canadian justice minister Irwin Cotler once referred to human rights as “the new secular religion of our time”. That is why Michael Ignatieff responded from Harvard with his very clever attack on human rights as idolatry. We should keep an eye on Canada, because the crazy stuff that Canada comes up with arrives in Australia 10 years later.

So a recent book, Reasonable accommodation: Managing diversity, edited by Lori Beaman calls for the creation of something called “deep equality”, which involves that “the content of religion should be open to fair and public assessment”. This is an admission that it is already taking place in the courts. I call rather for “deep diversity”, in part as a response to the frankly totalitarian dimensions of “deep equality”.

The authors say, by the way, that “deep equality requires us to get past accommodation and toleration”. That is where some of Canada’s theorists are going. They are nice people, they have nice smiles, but that theory is really frightening. They do not respect difference. A Canadian singer refers to the “chainsaw in a velvet glove”. That is Canada. They smile and embrace, but there is a stiletto in the embrace. You can’t get public debate on the big issues in Canada; they do not want there to be. They just want results, and they’re getting them.

Rabbi David Novak, a philosopher at the University of Toronto, says: “The hallmark of a democratic social order is the continuing limitation of its governing range. Without such limitation, any society tends to expand its government indefinitely. But such limitation cannot come from within; it can only come from what’s both outside of it, and above it.

“Today, that external and transcendent limitation can be found in the freedom of citizens in a democracy to find their primal identity by being, and remaining, a part of their traditional communities. This is what has come to be known in democracies as ‘religious liberty’.”

Goodbye to difference

This move towards homogenisation, this move towards us all being the same, requires the dilution of associational difference and diversity. It requires the law to do it, and it requires the shutting down of dissent; through hate speech laws. But it is not really about hatred at all. Consider ridicule, bringing into contempt; anything can be considered ridicule, virtually, and if it hurts your feelings, it can be construed as hate speech. Well, what kind of debate does not hurt feelings at some level?

None of the generation that we’ve been raising has any sense of objective moral goods or requirements of moral behaviour, no sense of virtues because they know their values are what really matter, and they know what their values are.

And many are ignorant. They do not read, they have no historical depth, no literary depth, no philosophical depth, because we have dumbed down the educational system. Get hold of the exams from the 1920s in Australia and compare them with what people are asked to do now. Do it; it will shock you. I did it with Ontario exams from the early decades of the 20th century, and the questions on the high school English literature exam were really tough for a BA graduate in literature.

“Equality” needs to be exposed, “values” has to be avoided, “secular” has to be avoided; but “public” has to be built up. The truth that everyone is a believer has to be written on the inside of our eyelids.

Not all discrimination is bad; we require discrimination. I tell my students that discrimination is the essence of a good wine-tasting experience. But it is also the essence of making appropriate choices.

Context is crucial

The South African Constitution gets this right. The South African Constitution speaks of “unjust discrimination”. You do not have this in Australia but you need to build it in. What you want to have is an understanding of which discriminations are just and which discriminations are unjust. Equality is meaningless without context. Discrimination is meaningless without context.

We do in fact allow people to treat some other people as unequal. We do it with age; you don’t want a 12 year old behind a Ferrari. We have to do it in context-specific ways. You want discrimination against people who fail the examinations to become airline pilots. If you abandon objective measures of merit, you end up slowly decreasing the competence of society.

Alexander Solzhenitsyn says that when society takes a lie to itself, it can only continue to maintain the lie by an ever greater proliferation of lies. Anyone who has studied the abortion issue knows the truth of that. You start off the lie that a healthy pregnancy is a disease and it needs to be dealt with therapeutically. It corrupts medicine, and then the law has to further that corruption by telling all sorts of lies about what is going on in the clinic. It has gone through the culture, corrupting everything it touches.

Diversity is prior to equality. Why? Because you can determine equality only in relation to context, and context in a free and democratic society is different; it is diverse. There are different religious groups, different associational groups. Should a women’s group be able to hire only women in leadership positions? Yes. Should a Catholic parish be able to hire only Catholics in leadership positions? Yes. Jews? Yes. Muslims? Yes. Everyone.

We allow discrimination and distinction, because a free society requires it.

Here is an important point: We need to understand the arguments about what we should call the legal presumption in favour of diversity. When we approach a conflict, diversity is the presumption that needs to be rebutted. You have to make a good argument to overturn diversity in any single case. In law, we have had it the other way around. We have allowed the vagueness of the equality challenge to put the burden of proof on diversity, so that civic associations are always on the back foot defending themselves. We need to turn that round, to make the presumption in favour of diversity.

Too often the nature of a religious organi­sation is not respected. For example, in the case that a religious
organisation wants to have everybody in it sign on to a code of conduct, that they believe in what the organisation teaches about religion. If that goes to court, the court will tend to ask, “Is that person you’re hiring in a leadership role?” If the answer is “no”, the court will hold that the person does not have to fulfil the religious purposes.

That is not respecting a religion, because many religious organisations have an ethos of spirituality that permeates all of the positions, not just religious leadership. And that judicial test, looking at what is called “core function analysis”, is just disrespectful. Now, if your religious group does not have a shared ethos, then sure, the janitor does not need to be part of your religious project.

But many religious groups do. Such as one of the organisations I acted for. It was routine for the staff to lead Bible studies, all the staff. To apply a “core function analysis” to that organisation would be completely disrespectful.

Law in service of society

A quick point on hate speech. The South African Charter of Religious Rights and Freedoms, which I helped to draft, was signed by all the religions of South Africa in 2010 (see the wiki entry on it). When we came to the question of hate speech, what we wrote was agreed to by all the South African religions, and was done by civil society, not by government.

“What? Law’s only done by legislatures and courts!” No, it isn’t. There is no reason why law cannot be generated from the bottom up. It doesn’t have to be driven from the top down. We should start thinking like that, because the state has become too big and it is eviscerating civil society.

So, when we did it in South Africa, this is what it said regarding hate speech: “Every person has the right to religious dignity, which includes not being victimised, ridiculed, or slandered on the ground of their faith, religion, convictions, or religious activities. No person may advocate hatred that is based on religion, and that constitutes incitement to violence or to cause physical harm.”

We said that hate speech that incites violence and harm should be stopped by law. But short of that, we’re adults. We just have to try to learn respect, even if sometimes in robust debate you are going to hurt feelings. But that is part of living in an open society.

So, we need to reconsider the roles and limits of government and law. Italian philosopher Giorgio Agamben said that we are living in an age of a “hypertrophy of law”. Law has grown too big, beyond itself. We are requiring law to govern the kinds of things that law is not competent to govern. Law cannot really teach the moral framework that is necessary for culture, so, we should not be looking to it as the primary keeper of what is right and what is true and, ultimately, of what is just.




























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