Contents
Volume 21 No. 1, 2006
EXCEPTIONS, EXCUSES AND NORMS
Paul
Dumouchel, Guest Editor
Introduction : Exceptions, Excuses and Norms
An exception
is defined by a norm, or at least in relation to a norm, and, as the
articles in this issue show, there are a number of different ways
for an exception to be related to a norm. It is in relation to a rule
or norm that an exception constitutes an exception rather than as
a random event, accident or transgression. An exception supposes that
a rule applies, and it is classified as an exception because, for
some reason, it is deemed that in the case in question the rule cannot
or should not be applied. An exception is a departure from the rule,
but it neither denies the rule nor creates a foundation for repudiation
of the rule. An exception is rather a special case in which the rule
cannot be applied, even though the rule's force is neither denied
nor diminished. In this sense, the exception always confirms the rule.
In fact, an exception in the true sense can exist only if it is in
relation to two rules; one is not enough. Thus, as Jennifer Dalton
shows in her text, the rights of First Nations sometimes justify exceptions
to Canadian laws. First Nations' rights limit and temper the application
of Canadian laws in some circumstances. Upholding the right to self-government
authorizes departures from the law. This right justifies exceptions,
and because the exceptions are recognized in Canadian law, they in
turn strengthen the norm embodying First Nations' right to self-government.
Inversely, in other circumstances, Canadian law can justify exceptions
to First Nations' rights. It identifies situations and states reasons
that permit agents to disregard or not take into account some such
rights. In other words, Canadian law identifies exceptions in relation
to the norm or rule embodying respect for these rights. The exception
therefore does not identify a specific case but a class of specific
cases, and it is simply an accident if the class sometimes contains
only one example, for all exceptions so defined can be used as precedents.
As Jennifer Dalton also notes, provisions that authorize exceptions
must not be too vague. For example, they cannot simply refer to a
value as general and poorly-defined as "national interest."
The problem is not that it would then be impossible to know the rule
in relation to which an exception has been made. That is always clear.
Thus, in the example cited above, the rule in question is First Nations'
right to self-government. If the value invoked to legitimize an exception
is too vague, it is impossible to determine what norm gives the exception
its strength as an exception. National interest can be invoked in
virtually any situation. Either no exception would be justifiable
or it would be impossible to tell the difference between an exception
that is justified and one that is not, in other words, between an
exception and a violation. National interest by itself does not constitute
a norm or public rule that enables agents to guide their actions.
An exception supposes at least two norms. There is a first norm or
rule, which is the one in relation to which the exception is an exception,
for example, a Canadian law. There is a second norm that gives the
exception its strength, for example, First Nations' right to self-government.
It is because it is possible to refer to the second norm that the
exception is not simply a suspension, transgression or denial of the
rule. Without the second norm, which must also be complied with, there
would be no reason for the departure from the rule to be an exception
rather than an infraction. In other words, there would be no justification
for why the rule does not apply in the case in question. As Emmanuel
Picavet shows, understood in this way, an exception strengthens both
norms. The scope of first rule, in relation to which the exception
is defined, is better defined by the exception itself. The exception
also reaffirms the value of the first rule outside of the restricted
field of exceptions, and confirms the value of the second rule on
which it is based. For example, when the European Commission says
that government assistance to enterprises is an exception to the rule
of free competition and not a violation, it simultaneously recognizes
the value of the general rule of free competition. Inversely, when
a state succeeds in getting the Commission to permit a new form of
assistance, it better defines the class of exceptions, better identifies
the meaning of the rule of free competition and asserts its own right
to provide such assistance in some circumstances. The two rules become
clearer, and the dialectic is a learning mechanism and cognitive process
of identification of norms.
In contrast, as Colleen Bell demonstrates, security certificates as
"exceptions" to normal application of human rights are completely
different. Such certificates are issued by a government minister,
and authorize the arrest and indefinite imprisonment, without possibility
of bail, of any foreigner or permanent resident who is suspected of
being a danger to national security. A person targeted by such a certificate
need not be guilty of any crime. He or she need only be considered
a threat to national security. What is in question is thus an assessment
of what an individual might do in the future rather than punishment
for a crime committed. A security certificate is thus a preventive
measure, not discipline. A judge is required to rule on whether there
is reasonable suspicion to justify the certificate, and can prevent
its execution, but he or she cannot rule on the cogency of suspicions,
only on whether they are reasonable. The judge's verdict is final
and the accused person's lawyers have no access to the information
on which the security certificate is based. Such "exceptions"
weaken rather than reinforce the rule in relation to which they are
defined and, far from clarifying the meaning of the rule, make it
more difficult to understand. Appealing to national security as an
overriding value does not define the meaning of the law, or even its
limits. It simply makes the law inapplicable in certain specific cases.
Security certificates do not define exceptions; they identify individuals.
They do not say what constitutes an exception; they name specific
individuals who, because they are deemed dangerous, no longer enjoy
the usual legal protections. They can be incarcerated for an unlimited
time, and the state does not have to explain the charges against them.
Such exceptions state the outside shell of the law but identify no
rule or norm. They designate cases that the state says fall outside
the law and concern certain people whom it alone can identify. Logically,
such exceptions are more like violations except that in this case
the state, not an individual, is the transgressor.
This is not because of the nature of the value invoked, such as national
security, or even due to its pre-eminent nature, but primarily because
national security, like national interest, is not really a norm but
a value, and values are by definition beyond norms. Values are beyond
norms because it is from them that norms flow. A value, for example,
respect for human life, can be incarnated or embodied in one or more
different norms, such as laws on euthanasia and assistance to those
in danger. However, specifically because it can provide the basis
for different norms, a single value can be embraced by people who
propose norms that are completely contradictory though intended to
embody the value in question. For example, maintenance and abolition
of capital punishment can both flow from the same value. A single
value can inspire many completely different, contradictory rules.
This is why, while a value can provide motivation, it cannot really
guide action. Unlike a value, a norm is a public rule to which agents
refer to guide and coordinate their actions. Because a norm is a public
rule, agents can challenge it and criticize the way it is used or
interpreted. This makes learning and reciprocal adjustment possible,
which is fundamental in the evolution of norms and rules. As we said
above, under such conditions, defining an exception to the rule is
a cognitive process of discovery of the meaning of the rule. An exception
represents an agreement among the parties about the application of
the rules. Such an agreement can always be challenged. Moreover, it
can be based on many different reasons, for example, the meaning that
agents give to the rule or whatever power relations exist between
them.
In contrast, there are no exceptions to values. They rule unconditionally
over the whole area in which they apply. Only another value can justify
sacrificing or overruling a value. In other words, a value can be
beaten only by another value, and if this happens the first value
is weakened. There is no space here for the patient dialectic of exceptions.
Here, exceptional cases do not strengthen the rule in relation to
which they are "exceptions." They do not delimit the rule
or clarify the value on which it is based. As Hilary Putnam says,
unlike the dialectic among rules and exceptions, a conflict between
values can result only in negotiations and compromises, in other words,
attenuated forms of victory and failure. It is a zero-sum game. This
is why when a value, such as national security, sets limitations on
the application of a law, deprives people of normal legal protections
and places them outside a law's scope, it does not actually legitimize
exceptions, but simply states a power relation.
Security certificates assert that there is an emergency that requires
that the law not apply. Consequently, it is impossible to define or
even learn what norm flows from national security, what rule governs
the emergency. Moreover, precisely for reasons of national security,
the state is not required to provide the reasons for the accusation
and requested departure from the law. While the accused are quite
aware of the norm in relation to which they are exceptional cases,
neither they nor their defenders can know what norm makes them an
exception, or, a fortiori, change it. When what is invoked to establish
an exceptional case is a value rather than a norm or public rule,
there is denial of the importance and meaning of the general rule
in relation to which the exception is defined. The source of the exception,
in other words, the value invoked, does not remain hidden. On the
contrary, public reference is made to it to justify the fact that
the first norm does not apply in the case in question. However, what
remains unclear and never becomes public is the second norm or rule
that defines certain cases as falling into the class of exceptions.
Consequently, all that remain are individuals, names. This is why
it becomes increasingly difficult to identify the scope and strength
of rules in relation to which such exceptional cases are announced.
Such cases are outside the law; they are not exceptions properly speaking.
They do not make it possible to understand and discover a rule invoked
to treat certain individuals in a special way. Such "exceptions"
are situations in which the scope of the law is limited for reasons
that, in the end, cannot be known. In other words, without it being
possible to know what is a sufficient reason to justify a departure
from the norm.
The articles by Robert Ahmeh and Annik Chiron de la Casinière
have to be read in relation to the second kind of "exception."
The crimes, violations and abuses of power that have led to the establishment
of reconciliation commissions and issuing of state apologies are generally
"exceptions" in the second sense. In other words, cases
outside the law exacted in the name of an emergency or a higher value.
When such violations are frequent, when such "exceptions"
become common, it becomes increasingly difficult to recognize or imagine
a competing rule that could be used to define them as exceptions.
They become arbitrary or rather their arbitrary nature becomes clear
in that it is no longer possible to recognize their justifying norm
or value. Consequently, the rule in relation to which they are "exceptions"
is weakened and loses credibility. The law begins to look like an
empty shell, a false façade. Taken to the extreme, recourse
to national, class, racial or religious values against public norms
makes the latter lose all credibility. They can no longer play their
role, which is to enable agents to coordinate their actions.
In such cases, it seems particularly difficult to ask the courts,
- the law in its usual form, - to rule on such abuses, ie. to declare
such exceptional cases illegal. The fact that they were perpetrated
by the state and presented or conceived as "exceptions"
based on an emergency or value superior to the norm has reduced, if
not destroyed, the credibility of the norm in relation to which they
are now to be judged. National and international courts of justice
inevitably refer to norms in relation to which the crimes they are
judging were "exceptions" in the past. In such cases, classical
legal approaches have the disadvantage of being based on norms that
have been discredited by the very crimes they attempt to judge.
Under such conditions, reconciliation commissions and state apologies
take on their full significance. Precisely because they do not engage
in the antagonistic contest between innocence and guilt, those who
publicly admit their crimes reassert the value and importance of the
rule that they transgressed in the name of an emergency or exceptional
circumstance. The same goes for a state that apologizes and asks for
forgiveness. It affirms the importance of the norm by the very fact
that it acknowledges having transgressed it without justification.
What is important about these practices is that they re-establish
the norm. They make it possible to once again assert it publicly after
the false exception had reduced it to silence and nonsense. The great
advantage of such approaches is that it is the very people who demanded
the exceptions who now admit they were unjustified. By doing so, they
reassert the importance and strength of the norm that they used to
mock. By making the norm credible again, they enable it to play its
role and guide actions, and remove the suspicion of arbitrariness
that weighed on judgments rendered in its name.
(Original in French, translated by Mary Baker)
Paul
Dumouchel
Graduate School of Core Ethics and Frontier Sciences
Ritsumeikan University
Kyoto - Japan
Jennifer
E. Dalton
Aboriginal Self-Determination in Canada:
Protections Afforded by the Judiciairy and Government
Abstract
It is commonly thought that the watershed Supreme Court of Canada
cases on Aboriginal rights represent a gradual trend wherein Aboriginal
peoples have gained increasing protection under Canadian common law.
However, this paper argues the contrary. Despite judicial decisions
dealing with Aboriginal rights under section 35(1), the rights of
Aboriginal peoples in Canada have not gained greater protection and
they certainly have not expanded to encompass the right of self-determination.
Instead, it is argued that judges have introduced and applied various
legal tests which have ultimately resulted in further impediments
to the expansion of broad Aboriginal rights under section 35(1). It
is interesting to discover that the level of political and governmental
recognition of Aboriginal peoples and their rights, including the
right of self-determination, has been greater than at the Supreme
Court of Canada. This is despite the destructive treatment of Aboriginal
peoples by the Canadian state. On the whole, the Government of Canada
has been willing to recognise the inherent right of self-determination
as applied to Aboriginal peoples. This is due to the changing legal
status of who constitutes "peoples" under international
law and the role of the Canadian government as a signatory to various
relevant international covenants and declarations, alongside more
recent government policy statements and developments in comprehensive
land claims and self-government negotiations. Ultimately, it is argued
that the Canadian government has tended toward higher levels of support
for more extensive rights for Aboriginal peoples than has the judiciary,
and most notably, the Supreme Court of Canada.
Emmanuel
Picavet
L'institutionnalisation de l'attribution des pouvoirs politico-économiques
:
Normalité et exception
Abstract
This article puts forward an analytical canvas for studying the effects
of a divide between normality and exception in the institutionalization
of power-attributing rules. The question is raised through the study
of the coordination of institutional agents around issues pertaining
to the specification of exceptions. The initial canvas is enriched
by the re-examination of examples taken in the field of the legitimate
intervention of the State against the backdrop of uncertainties about
the meaning of European rules which are central to the policy of competition.
Colleen
Bell
Subject to Exception : Security Certificates, National Security
and Canada's Role in the 'War on Terror'
Abstract
This article examines the values ascribed to the lives of non-citizens
by the Immigration and Refugee Protection Act's security certificate
process and its implications for state power and political freedom.
Under the imperative of national security and the "war on terror,"
the security certificate functions as a moment of legal exception
for the assertion of sovereign power and legitimation. This compromises
the rule of law and denies basic legal protection to non-citizen detainees.
The first section of the article addresses the mechanisms and procedures
of the security certificate. Special attention is paid to the use
of detention and evidentiary standards in order to illustrate the
manner in which the security certificate derogates the rule of law.
The second section considers how eroding the rule of law opens a space
of exception for the exercise of sovereign, unmitigated state power
that is grounded in the discriminatory criteria of citizenship status
so as to implicate foreignness in the production of danger. The final
section addresses how the security certificate configures freedom
as commensurate with the national security objectives of the "war
on terror", exposing the limitations of liberal freedom in relation
to modern state power.
Robert
Kwame Ameh
Doing Justice After Conflict : The Case for Ghana's
National Reconciliation Commission
Abstract
Ghana joined a group of transitional democracies in the world by establishing
a National Reconciliation Commission (NRC), which started work in
September 2002. The NRC was mandated to investigate past atrocities
and human rights violations, recommend appropriate compensation for
victims, and reconcile the nation. But expectations among Ghanaians
of the ability of the NRC to heal the wounds of the past, end the
cycle of vengeance and vendettas, and reconcile the nation have been
mixed even after the NRC completed its work and submitted its report
in October 2004. This paper makes a case for Ghana's NRC. It argues
that a National Reconciliation Commission is a better way of dealing
with the egregious human rights violations in Ghana's past than the
alternatives available.
Annik
Chiron de la Casinière
Entre éthique, justice et politique : la demande de pardon
des États.
Le cas des Unangan (Aléoutes) de l'Alaska
Abstract
This paper deals with the official apology offered by governments
to peoples or groups, often a minority of their own nation, who were
once victims of a crime against humanity. After staying six months
in Alaska with the Unangan people who, in 1988 for the first time
in the country's history, received from the American Congress official
apologies and financial compensation for their evacuation and internment
during WWII, I have returned with a significant amount of data. They
tend to show that if such apologies, although considered unanimously
as a positive gesture, are not accompanied by certain essential conditions,
they are viewed mainly as a political strategy and comedy. Furthermore,
if this evolution results directly from recently-acquired historical,
legal and political consciousness of peoples, especially of Aboriginal
peoples, it represents a new kind of test for individuals and groups
in our democracies who are really concerned with common welfare.
_______________________________________________________________________________
Richard
A. Brisbin, Jr., and Susan Hunter
The Transformation of Canadian Property Rights?
Abstract
Legal scholars tend to situate the development of rights in constitutional
courts. However, recent studies in the law and society tradition find
that individual choices or choices by private organizations also can
transform the meaning of rights. Further extending this argument,
this paper hypothesizes that the transformation of rights also occurs
through incremental policy changes made by subnational officeholders
and administrators, including changes that "layer" new meanings
onto law and rights. To examine the hypothesis, this paper uses the
example of property rights and land use regulation. It concludes that
Canadian officeholders and administrators engage in an ongoing development
of the meaning of rights within a rationality defined by entrenched
constitutive values about territoriality.
_______________________________________________________________________________
DEBATE ON RESEARCH ETHICS
Ted Palys and John Lowman
Protecting Research Confidentiality :
Towards a Research Participant Shield Law
Abstract
Protecting research confidentiality is an integral principle of all
social sciences and humanities ethics codes. But what if a court were
to want access to confidential research information, either in pursuit
of civil litigation or a criminal case? In Canada, only Statistics
Canada research information enjoys an evidentiary privilege-a court
cannot compel its disclosure. All other researchers would have to
turn to common law to defend confidential research. The onus would
be on them to prove on a case-by-case basis that confidential research
information should remain confidential, thereby creating the possibility
that a court might order its disclosure. The first part of the article
identifies five problems arising from this current state of the law.
Statute-based protections of research confidentiality would go a long
way toward resolving these problems. But what would these protections
look like? Who would administer them? The second half of the article
examines statute-based protections of evidentiary privilege, including
the Canadian Statistics Act and Canada Evidence Act, and US "confidentiality
certificates" (for certain kinds of health research) and "privacy
certificates" (for certain kinds of criminological research)
with an eye toward formulating criteria that a Canadian research shield
law might emulate.
Florence
Piron
Réponse à Palys et Lowman
John Lowman and Ted Palys
Response to Piron's Response
Book
Reviews
C. M.
Flood, K. Roach, L. Sossin (eds.)
Access to Care - Access to Justice. The Legal Debate Over Private
Health Insurance in Canada. Toronto, University of Toronto Press,
2005, 530 p., appendices
Marie-Claude Prémont John
B. Dossetor Beyond the Hippocratic Oath. A Memoir on the Rise of Modern
Medical Ethics. Alberta, University of Alberta Press, 2005, 298 p.
