As part of the Centre for Constitutional Studies' speaker series commemorating the 150th anniversary of Confederation, on Monday, January 30th, the Faculty of Law at the University of Alberta was treated to a presentation by Professor Claude Couture entitled “Utilitarianism as a Paradigm for the British North America Act”.
Couture is a professor of Social Sciences and Canadian Studies at the University of Alberta's Campus Saint-Jean and a 2014 recipient of the prestigious Governor General's International Award for his work in Canadian Studies.
Many prominent historians have suggested that Canada's founding was essentially an experiment in liberalism. Couture counters this claim. While conceding that Canada increasingly displayed features reminiscent of liberalism, he argues that the auspices under which it was created was essentially based on utilitarianism.
At this point, it may be helpful to define these two concepts for some of our readers who may be unfamiliar with legal and political philosophy.
Utilitarianism, when stripped down to its bare bones, is a system in which decisions are made based on what is best for the greatest number of people in a society.
Jeremy Bentham, a prominent utilitarian thinker, saw these decisions as simply being ones of pure mathematics. In fact, he even posited a unit of measurement (the “util”) to assist in these calculations. Basically, a decision is correct if the amount of pain that a decision would result in it less than the pleasure (or other positive effects) that it would bring about. For example, a minor inconvenience inflicted upon a few people in order to bring about a great benefit to many would be seen to be desirable.
Of course, this system is not without its flaws. Imagine a healthy man in a hospital waiting room surrounded by six people who require organ transplants. A purely utilitarian calculation may result in that person having his organs harvested against his will in order to save the other six.
Liberalism, on the other hand, seeks to balance the needs of society with the inherent worth of its members and the importance of freedom and equality.
Couture begins his discussion on Canada's history by acknowledging Canada's imperial roots, as part of the British Empire, as well as arguing that utilitarianism played a crucial role in the expansion of the Empire and the passage of the British North America Act1. The cultural web of the Empire needed to be connected to itself. In order for this to be successful, actions were considered with the well-being of the Empire in mind, under the assumption that what was good for the Empire would ultimately be beneficial to the majority of its subjects.
He then introduces us to John Stuart Mill, who effectively took a position that was a bridging point between utilitarianism and liberalism. He spoke of “utility in a larger sense”, and essentially claimed that the calculations that strict utilitarians like Bentham argued for were incomplete, as they ignored the inherent worth of human beings. Mill did not attempt to scrap utilitarianism altogether, but according to Couture, saw liberalism as refining, and even defining, it.
From this point, Couture further defined early British liberalism from the perspective of John Locke, in which individual rights were a factor, but mostly with regards to property rights. This position effectively led to the conclusion that there needed to be restrictions on the powers of the Crown and that individuals and their property should be afforded a certain degree of autonomy.
With the advent of a rights-based approach to governance, Couture argued that the Constitution Act, 19822, and specifically the Charter3, had signified the end of the paradigm shift. Our new addition to Canada's body of constitutional law had all but abandoned utilitarianism in favour of liberalism.
For those who would like to see the video of Professor Couture's presentation, it is available here.
1 Constitution Act, 1867 (UK), 30 & 31 Vict. C 3, reprinted in RSC 1985, Appendix II, No 5.
2 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ibid.