The Canadian Red Ensign

The Canadian Red Ensign

Thursday, September 29, 2011

Bach to Beethoven: Music and Culture, the High and the Low

The creative aspect of human nature, which according to Dorothy Sayers is the very essence of the image of God in man, expresses itself in art. While the word art immediately brings to mind physical works, like painting and sculpture, that we experience through the sense of sight there is an art that is at least as old as either of these which is audible rather than visual. That art is the art of music.

What is music?

Music is created by the deliberate arrangement of sounds, whether produced by instruments, voices, or a combination of both. That is not a definition of what music is but a description of how it is made. It is easier to describe how music is created than to define what it is. For to say “music is the deliberate arrangement of sounds” would not be correct. That definition would also apply to speech which is not ordinarily considered to be a form of music. It does not help to define speech as “the deliberate arrangement of sounds produced by the human voice” because singing is an element of music produced by the human voice and some forms of music consist of unaccompanied singing.

Can we distinguish music from other forms of arranged sound such as speech by its function?

If we understand “function” in its utilitarian sense this would be very difficult to do because music is composed for a multitude of different uses, perhaps more so than any other art. Some music is written for use in worship to glorify God. The purpose of some music is to relieve the monotony of drudge labour. Other music is written to pass down a people’s history, legends, and myths in a way that is easy to remember. Some music is written to be listened to by an audience in a concert hall. Other music is written to be danced to.

If we think of function in terms of ultimate purpose, apart from the question of use, then music, as a form of art, has the same ultimate purpose of other arts, the creation of beauty. A painter arranges colours and shades on his canvas in such a way that whether he is depicting a person or place or telling a story in picture, the resulting work is beautiful to the eye. Likewise, a musical composer, seeks to arrange sounds in a way that is beautiful to the ear.

This still does not distinguish music from all forms of speech. For beauty can be created through the arrangement of words too. This is the goal of the literary arts and especially of poetry. Perhaps it is impossible to define music and poetry separately however. They have been closely associated with each other since the days of Ancient Greece, they share common elements such as rhythm and metre which are often spoken of as “the music” of poetry, and what are lyrics, after all, other than a form of poetry?

The overlapping relationship between poetry and music suggests that music, like speech, is a means of communication, a language. Since music affects our emotions, our feelings, it is possible that the best way to define music is to say that like speech, it is a form of communication through arrangements of sound, but whereas speech is primarily directed towards human reason, music is directed towards our emotions, our feelings. A possible challenge to the accuracy of this definition may exist in the fact that some forms of music are written to inspire reflection and contemplation, both of which are actions of the rational mind. The kind of reflection that good serious music inspires, however, is not the same sort of reflection that a well-written treatise inspires. The latter speaks directly to our reason, offering us proofs of what it asserts, and inviting us to pass judgement on whether or not its thesis is sound. Contemplative music speaks to our reason indirectly. It first inspires an emotional response and then invites us to contemplate that response, its immediate source in the music itself, and its ultimate source in the meaning conveyed through the medium of the music.

Music, like other art, is an important component of culture. Culture is the shared way of life of a community, society or people group. It unites the members of these social groups, giving them a sense of a shared identity. It binds more than just the current members of a society, however. When it is passed on from generation, to generation, we call it tradition, and it serves to unite the past and future generations of a society with the present generation. It is through the passing on of culture in tradition that a society’s greatest achievement, its civilization, is transmitted.

Social cohesion within a community is usually not the first thing we think of when we think of music. We recognize that various forms of ethnic and folk music are musical expressions of the culture of particular people groups but we seldom think of the larger categories of music which are more widely listened to in these terms.

If anything we think of such music as having the opposite effect. Musical tastes divide families, communities, and societies. In any given large community in the Western world, you are likely to find fans of country, jazz, rock and pop music as well as classical music aficionados, and some poor misguided souls who think that the cacophonous noise that is called rap is a form of music. Musical tastes frequently divide members of the most basic social unit, the family – rock music in particular has an infamous reputation for creating a generation gap within families. Where music does create social unity nowadays is among the cult followings of various bands and musical icons.

Perhaps ironically, in all of this Western music does continue to express something significant about Western culture, societies, and civilization. What it expresses is how completely liberalism – the idea that the individual is more important than the family, community, or society – has triumphed in Western countries. It also shows how easy it is, in a society atomized by liberalism, for charismatic figures to form large cult followings out of the masses of alienated individuals.

Culture exists in many layers. Local culture gives identity to local communities and when several of these comprise a larger society their local cultures share elements which make up the larger culture of the society as a whole. Depending upon the size of the society there might also be a regional level that is intermediate between the local and the societal. There is also a level of culture that transcends the particular society. We call Canada, Great Britain, the United States, the countries of Europe, and a few other societies “Western” because these societies all share in what we call “Western civilization” – the tradition of achievement which began in the Graeco-Roman civilization of classical antiquity and came down to us through medieval Christendom. There is therefore a sense in which we can speak of a “Western” culture which all these societies share in.

There is another sense in which we can describe culture as being multi-layered. Matthew Arnold, the insightful 19th Century inside critic of liberalism, in his Culture and Anarchy, wrote that culture is “a pursuit of our total perfection by means of getting to know, on all the matters which most concern us, the best which has been thought and said in the world”. Clearly this is not a description of a society’s culture as a whole. What Arnold is talking about is what is usually described as “high culture”. High culture is a level of culture that exists within the culture of societies which have achieved a high degree of civilization. High culture contains high moral and aesthetic standards and has an elevating effect upon its society and that society’s broader culture.

Or at least that is what traditional high culture is like. That which has been produced under the label “high culture” over the last century has progressively moved further and further away from the description. The reasons for this we shall shortly explore. First let us consider the nature of the musical element of high culture.

The label we most commonly attach to Western high culture music is “classical music”. What do we mean by the term “classical”? There are many whose first thought upon hearing the word “classical” is “old”. This could be because this is how the term tends to be used with regards to other forms of music. “Classic rock” and “classic country” are both virtually synonymous with “oldies” in either category of music. It could also be because most of the really big names among classical music composers lived or were at least born before the 20th Century. The word “classical”, however, does not properly mean “old” at all. It refers to outstanding quality and if it has any necessary temporal connotation it is of “timelessness” not “age”.

The term “classical” points to one of the most important elements of traditional Western high culture. Classicism in the arts is a striving for excellence that emphasizes form, structure, and order in accordance with high standards derived to some degree from Graeco-Roman civilization, especially the culture and philosophy of 5th-4th Century B.C. Athens. Among the traits regarded as characteristics of excellence in classicism are unity, simplicity, balance, harmony and restraint.

Not all “classical music” is classical in this technical sense of the term. Classicism has been influential at various points in the history of Western art music, but most notably in the style that developed in a particular period in the 18th Century. This period – the Classical Period proper – extended roughly from the time of Johann Sebatian Bach in the early 18th Century to that of Ludwig von Beethoven in the early 19th Century. Bach was the greatest composer of the Baroque period which immediately preceded the Classical Period. Beethoven embodied the transition between the Classical and the Romantic of the 19th Century. The period between Bach and Beethoven saw the careers of the two geniuses who with Beethoven were the first Viennese School of music – Joseph Haydn and Wolfgang A. Mozart.

Western art music contains a lot more music than what was composed in this era. The plainsong tradition in Christian liturgy extends well back into the first millennium of the Church and polyphonic liturgical music was composed in the late Middle Ages. J. S. Bach composed at the end of the Baroque period which also produced such giants as Antonio Vivaldi and George F. Handel and saw the birth of opera. The Romantic period in the 19th Century saw the work of Johannes Brahms, Frederic Chopin, and Franz Shubert to name just three. In addition most of the great opera composers – Wagner, Rossini, Bizet, Gounod, Verdi, etc. – composed in the 19th Century and in the case of Puccini in the early 20th. Why then do we refer to all Western art music as classical?

Since the real answer probably has something to do with the decline of precision in the English language I am going to give a plausible sounding ex-post facto justification of the usage. The music of Bach, Haydn, Mozart and Beethoven exemplifies everything that art music aspires to be. Earlier forms of music such as the concerto reached near perfection at the pen of these masters as did the new form, the symphony, which they introduced. Their music is unmistakably beautiful, both inspired and inspirational, and is enduring and timeless. It therefore lends its name to art music as a whole.

If the music composed in this era is all that art music should be what about the “classical music” composed today?

It, alas, is all that it should not be. The same downward progression can be seen in Western art music as can be seen in Western art in general. 19th Century Romanticism gives birth to the more rebellious Impressionism which is succeeded by a series of avant garde movements in the Modern Period in the early 20th Century and then collapses into the nihilism of Postmodernism after World War II. What Pablo Picasso, Henry Matisse, Gustav Klimt, and Marcel Duchamp were to the visual arts in the early 20th Century, Arthur Schoenburg, Alban Berg and Anton Webern were to art music. Jackson Pollock has his musical counterpart in John Cage.

What is the cause of this decline?

It depends upon whether we are looking for a cause within the culture or within the societies to which the culture belongs.

Within the culture the explanation is that romanticism was taken to its extreme and then beyond. Romanticism is a rebellion or reaction against the order imposed by classicism in the name of individual expression. It can be progressive – looking towards the future, or reactionary – looking towards the past, but either way it resists the structure and forms of classicism and places its emphasis upon the inner light guiding the individual artist.

Classicism and romanticism need each other. The structure, forms, and order of classicism and the internal inspiration of romanticism balance each other out. Inspiration and genius can result in timeless masterpieces of beauty as in the case of Haydn, Mozart and Beethoven. Adherence to form, when inspiration is lacking, merely produces the formulaic, whereas resistance to structure and order, if taken so far as to actually overthrow the structure and order, results in chaos.

Which is exactly what happened. The rebellion of early Romanticism evolved into outright revolution, order collapsed, and chaos ensued.

What about the societal cause of this collapse? Culture reflects the moral and spiritual condition of the society and civilization to which it is attached. What changes in Western societies and civilization are reflected in the downward death spiral of Western high culture?

The weakening of the position of the Christian Church is one of the changes which is clearly reflected here. The building of cathedrals and churches in architecture, the painting of altarpieces and other religious art to decorate these buildings, and the composition of settings of the Mass and other sacred music, are historically and traditionally the heart of Western high culture. The secularization of Western societies has cut at that heart severely.

The triumph of Whiggery – liberalism and democracy – is also reflected in the decline of high culture. In many Western countries royalty and aristocracy have been eliminated altogether. In the United Kingdom both survive in seriously weakened form. Here in Canada the monarchy has survived as a weakened institution but it would be very bad joke to apply the term “aristocracy” to our Senate. Our constitutions have become dangerously unbalanced in favour of the principle of democracy.

Other than the Church, Western royalty and aristocracy were the most important patrons of high culture. It is the nature of high culture that it is produced by a symbiotic relationship between a civilization’s social/political elites and its artistic elites. It is the nature of human societies that they will always be led by elites. The nature of the elites, however, depends upon the constitution of the society. In the Modern era democracy became the dominant principle in Western constitutions. As a result, the social/political leadership in Western societies has passed from royalty and aristocracy, even in societies that retain them, to new elites of politicians and bureaucrats. Economic leadership has passed from aristocracy-emulating bourgeois businessmen to corporate managers. The spiritual leadership has passed from the clergy of the Christian Church to intellectuals. The artistic leadership has passed from skilled craftsmen, apprenticed in their art from their early youth, working within established traditions, to nihilistic, navel-gazing, narcissists.

The current state of high culture is exactly what one would predict would be the result of a wholesale transfer of leadership from people with good taste to the kind of people noted for their bad taste – or utter tastelessness. Crucifixes in jars of urine, canned feces, and cadavers on display make one wish for the days when Picasso, Matisse, and Dali were making art look bad, while the kind of contemporary classical music one finds on government-sponsored radio stations makes Schoenburg’s atonal compositions sound harmonic.

Such art and music is “high culture” in name only. It does not and cannot do what high culture is supposed to do – elevate the general culture of the society which produces it.

If we say that it is high culture’s purpose to elevate a society, its culture, and its civilization what do we mean by “elevate”?

Human beings and beasts together comprise the category of living beings called animals, from the Latin word animus denoting breath or spirit. Human beings share many characteristics with other animals. We eat, we drink, we breathe, we sleep, we copulate, etc. We also have traits which set us apart from other animals and enable us to live on a higher plane than other animals. Yes, we can abuse those traits and in so doing arguably place ourselves at a level lower than the other animals. When used properly, however, they can create civilization.

Human culture involves all human activities, those we share with the beasts, and those which belong to us alone. Culture includes rules which dictate that some of the activities we share with the beasts be done completely in private and only discussed in public if absolutely necessary, other of the activities we share with the beasts are also to be done in private but can be discussed in public in a polite manner, whereas other activities we share with the beasts – such as eating and drinking - can be done in public, even communally, provided we follow customs which minimize our resemblance to our bestial cousins. These rules are called manners or etiquette and they differ from culture to culture.

High culture elevates a society’s culture, by drawing its attention upwards, away from the aspects of our existence which are merely animal, and focusing it on higher values. It is our attempt to live according to these values which produces the human achievement we call civilization.

Music, as mentioned earlier, is a kind of language which speaks to the emotions. It moves our passions within us. Beethoven’s choral setting of Schiller’s “Ode to Joy” in the final movement of his 9th Symphony, for example, inspires within us the feeling to which it alludes. Music can communicate feelings of happiness and of sadness – and of lust, rage, and a host of other kinds as well.

Which is why music can be degrading as well as elevating. This brings us to the topic of “low culture”. There are two very different meanings to the expression “low culture”. One is non-pejorative. In this sense “low culture” is simply the necessary complement of “high culture”. Within the culture of a civilization, high culture is deliberately produced to maintain a high level of civilization, and is oriented towards higher values which transcend the boundaries of the society. Low culture is the rest of the civilization’s culture and tends to be oriented towards expressing the particular identity of the society to which it belongs rather than towards universal higher values. Each draws from the other and complements the other. Such flow, T. S. Eliot has pointed out, must exist for if they are isolated from each other they become separate cultures rather than parts of a single culture.

The other sense of “low culture” refers to culture which has the opposite effect to that which high culture is supposed to have – rather than elevating it degrades. Both kinds of “low culture” are more commonly referred to as “popular culture”. The abbreviated version of this label, “pop culture” refers only to the degrading kind. The musical element of popular culture is called “popular music” and here too “popular music” does service for both non-classical Western music in general and degrading music in particular.

Whereas classical music involves many forms – fugue, sonata, concerto, symphony, opera, to name just a few – composed in styles that tend to coincide with long historical periods, popular music generally is limited to a single form – the song – composed in a multitude of genres such as folk, country and western, jazz, rhythm and blues, blues, rock and so forth. This is true of popular music in both senses of the term. The overwhelming predominance of the song form, however, can be regarded as a step towards the music of degradation. Songs are easier to follow than instrumental pieces and are usually considerably shorter. Mozart’s Horn Concerto No. 1 – the shortest of his four horn concertos being only two movements long rather than three, runs slightly over 10 minutes in length. There are a handful of popular songs that are of comparable length – folk rock singer Don McLean’s ballad “American Pie” was just under 9 minutes long – and these tend to be among the most enduring of popular songs, but most are well under the length of the average concerto movement, to say nothing of the average symphony movement. Popular songs are well suited for the age of fast food and junk food , TV channel surfing, and interac transactions.

It is the second meaning of “popular music” that we will focus on. What do we mean by degradation? How can music be degrading?

Degradation is the opposite of elevation. We defined the elevation which is the purpose of high culture as lifting human existence as far above the level of the beast as possible and orienting it towards higher truths and values to be reflected in the accomplishments of civilization. The opposite of that would be to attempt to reduce human existence to as close to the level of the beasts as possible. There are at least two other ways in which music can be degrading. It can be morally degrading – which is very close to the previous meaning of degrading. It can also be aesthetically degrading which refers to a drop in artistic quality.

The well-being of a community or society and of its members requires rules which forbid behavior in which a person pursues his personal interests in such a way or to such an extent that other members or even the community itself are harmed. Such rules require the individual person to limit and control his desires and passions. The connection between the two – rules governing society and people governing their own passions – and between the both and civilization is foundational to morality. Plato discussed this at length in his dialogue The Republic.

That which encourages people to unleash their passions and to rebel against legitimate authority is morally degrading. This is pretty much the defining characteristic of rock music.

Rock music began as “rock ‘n’ roll” shortly after the end of World War II. The original rock ‘n’ roll groups combined elements of country music and rhythm and blues to create catchy, songs that were fun to listen and dance to. Teenagers were the target audience and the lyrics of these songs typically expressed an adolescent perspective on topics of interest to teenagers. Some fundamentalist preachers denounced rock ‘n’ roll from the pulpit but their warnings were largely ignored because the rock of that era was relatively innocent and was, above all other things, fun. The preachers succeeded only in convincing most people that they were a bunch of wet blankets preaching the message that it is wrong to have fun.

This was the first step in the moral degradation of rock music. The relatively – but not completely – innocent and fun rock ‘n’ roll immunized all subsequent rock music from the criticism the first generation faced. “It’s just kids having fun. What’s wrong with that?” became the standard reply to all criticism of rock music. Implicit within that response is the intellectually indefensible assertion that “what is fun must therefore also be innocent”.

The subsequent development of rock music has shown the fundamentalist critics of the earliest rock stars to have been speaking with the prophetic voice of Cassandra. In the 1960’s the mask of innocence was dropped. Rock became the music of the sexual revolution, telling young people to follow wherever their urges led them rather than to control their urges and behave responsibly and well. While some might argue that the increasing corruption of the political establishment lent a degree of credibility and merit to rock’s message of rebellion that message was directed as much against parents, teachers, the Church and its clergy, policemen and indeed all legitimate authorities at all levels of society. Rock eventually developed into countless numbers of subgenres, some of which were relatively benign, while others promoted drug abuse and other self-destructive behavior, and preached evil messages like nihilism and even Satan worship. At one time there were rumors going around about “backwards masking” – that rock musicians would hide objectionable material in their songs which could only be heard by playing them backwards. One wonders why they would bother since the lyrics played straight forwards are bad enough.

A similar downward trend over the same period in time can be seen in pop music. “Pop music” is not, as one might think, just a shorthand way of saying “popular music”. It is a genre of its own – although perhaps it should be called the anti-genre because of its tendency to absorb and assimilate other genres of popular music. To borrow an image from another element of pop culture it is the Borg of popular music. Pop music is similar to rock – they are generally categorized together in record stores – and it is difficult to say where the line between the two should be drawn. Perhaps the best way of describing pop music is to say that it is assembly line rock music. It is music manufactured for sale to the general public like any factory produced product.

This makes pop music a better gauge of the decay of morality than rock music since it is supposed to reflect the mainstream of popular culture. Fifty years ago, a pop star would have been a cleaner, slightly more polished, version of a rock star. If we look at the pop music of the last two decades, however, two trends have come increasingly to stand out among the leading acts – a) the prostitute and b) the effeminate pretty boy. Both trends are examples of moral degradation.

That the first trend is morally degrading should be fairly obvious. Progressively younger female pop stars performing to progressively younger audiences, dress increasingly provocatively and sing increasingly sexually charged lyrics in performances that would seem to be more appropriate for a burlesque stage or a strip club.

What about the second trend? Male pop stars are being made to look and sound more and more like girls every day. Yes, “made” is the right word, because the performers of pop music are as factory assembled as the music they sing. For they are as much the product as their music. Probably even more so.

Roger Scruton, in an insightful article about youth culture for City Journal 13 years ago, commented about how in pop music the traditional relationship between music and those who perform it has been inverted:

In effect, we witness a reversal of the old order of performance. Instead of the performer being the means to present the music, which exists independently in the tradition of song, the music has become the means to present the performer. The music is part of the process whereby a human individual or group is totemized. (Roger Scruton, “Youth Culture’s Lament”, City Journal, Autumn 1998)

This is why one cannot defend the pretty boy trend in pop music by pointing to the historical use of castrati in traditional music. However barbaric the custom may have been, castrati were made to serve the needs of the music rather than to be idols for worship.

For thousands of years societies have regarded manliness as a praiseworthy trait to be encouraged among males. The Greek word for courage – the first virtue mentioned in Aristotle’s Ethics – was andreia, a word derived from the Greek word aner, which means “man, husband”. The very word “virtue” which we use to describe praiseworthy characteristics is derived from vir, the Latin equivalent of aner. This usage reflects the high premium Western societies have historically and traditionally placed upon manliness. In the kind of male pop stars it is now churning out the pop music industry appears to be promoting epicenity, the exact opposite of manliness, as a trait to be emulated by males. This too is a form of moral decay.

The degradation that is most obvious in pop music, however, is the aesthetic kind. Music, like architecture, painting, sculpture and literature is a form of art, the quality of which can be judged by aesthetic standards. There are different ways in which art can be aesthetically poor. On the one hand art can become clichéd, i.e, it can lose its aesthetical value by being pointlessly repetitive. On the other hand, artists may out of fear of the cliché, produce art that has no merit other than originality. The latter is the pitfall into which avant garde artists – musical and otherwise – are prone to fall. The former is the pitfall into which pop culture – including pop music – falls.

It is in the very nature of pop music to be kitsch. Pop music is music that is manufactured like any other assembly-line product to be sold cheaply in large quantities for mass consumption. Without Thomas Edison’s invention of the technology for recording and replaying sound and broadcasting and receiving sound in the late 19th Century there could have been no pop music. These technologies made it possible for music to be mass produced. Mass production, i.e., the fast production of a good so that it can be sold in large quantities at a low unit price, can be both a blessing and a curse. It is a blessing in that a wide variety of goods are available and affordable to more people than ever before. It is a curse in that quality of that which is produced inevitably suffers. Some things should never be mass produced and culture is one of them.

Whereas other forms of popular music and classical music are the creations of artists whose music may or may not be recorded and sold pop music is the creation of record companies. The companies create both the pop star and the music the pop star performs. One group of specialized technicians comes up with the image for the pop star, another group comes up with the music, and the final product is assembled by yet another group of technicians in the recording studio.

The result is the most clichéd form of music ever made. There is novelty – pop music rises and falls with the waves of fashion like no other – but no originality.

Unfortunately pop music seems to be a black hole which sucks in other forms of popular music. Before World War II a number of distinct popular music genres developed – country and western, jazz, rhythm and blues, etc. In recent decades most of these genres have tended to develop a “pop” feel to them. Take country music for example. Compare country music made today, with the music of Hank Williams Sr., Johnny Cash, Merle Haggard, George Jones and Waylon Jennings. Then compare it with music currently being released under the label pop. Which does it more resemble?

Is there a solution to any of these downward trends?

Not that I am aware of, but there is at least a consolation. The same advancements in musical recording technology that have made pop music possible, have also made possible high quality recordings by superb orchestras of the music of Bach, Haydn, Mozart, Beethoven, Shubert, Brahms, Grieg, Wagner, Rimsky-Korsakov, Tchaikovsky, Dvořák, and Mahler. There is over a lifetime’s worth of good listening in these recordings, and these works continue to be performed in the standard repertoire of concert halls and opera houses around the world.

Friday, September 23, 2011

The Tory Cause - a mission statement in verse

To stand for our country, the Crown and the Church
And all the values the leftists besmirch

To honor the Queen not the Ottawa crooks
And revere fine art, music, taste and old books

To ridicule progress of every kind
And reclaim the good that we have left behind

To love the good things God has placed here below
Like small towns, and farms, and the places you know

To stand up for freedom by night and by day
By saying the things that they say you can’t say.

Friday, September 9, 2011

This and That No. 17

In my last "This and That" I praised the Harper government for restoring "Royal" to the titles of our navy and airforce but warned against the Omnibus Crime Bill and the threat to privacy and free speech which it poses.

In this edition, I would like to again offer praise and criticism to the government. Prime Minister Harper has ordered all Canadian embassies to display a portrait of Her Majesty Queen Elizabeth II. That is an excellent decision although it is unfortunate that it was necessary - the embassies should already have had the Queen's portrait on prominent display.

Now for the criticism.

In an interview with the CBC's Peter Mansbridge, Prime Minister Harper said that the biggest security threat to our country is Islamic terrorism. That may or may not be the case. It is not this statement of Harper's that I wish to criticism but his plan to revive the anti-terrorist legislation the Chretien government introduced 10 years ago after 9/11.

This legislation gives the police powers which they do not need to effectively fight terrorism. This violates the rights of all Canadians.

The United States, after the terrorist attack of ten years ago, passed the USA PATRIOT Act which granted enhanced investigatory powers to the executive branch of the American government. A couple of years later the Bush administration asked for yet more powers. The late Sam Francis, in his syndicated column, wrote the following:

It is thunderously noticeable in most of the defensive speeches, wisecracks and sarcasm about the critics of these laws that hardy anyone ever actually specifies why such vast powers are needed and what terrorism they have actually prevented. What we do know is that every few weeks the government issues yet another statement claiming that the "terrorist threat" remains serious or is greater than ever or may be getting worse. There seems to be no reason to think the new powers have helped us at all.

But the larger point is not what this administration does or doesn't do with the new powers.

The point is that the powers are far larger than the government of any free people should have and that whatever powers this administration doesn't use could still be used by future ones.
(Sam Francis, "Bush Writing Last Chapters In Story of American Liberty", Creators Syndicate, September 25, 2003)

The same, of course, can be said of the Canadian equivalent of such legislation.

Here in Canada, we ought to be aware of the way measures taken to combat terrorism can threaten the liberty and rights of ordinary Canadians. Or have we already forgotten how Pierre Trudeau invoked the War Measures Act in peacetime in 1970, imposing martial law on the entire country, in response to the criminal actions of a domestic terrorist organization based in Quebec?

Pierre Trudeau had absolutely no respect for Canada's British tradition and the rights and freedoms which are the heritage of Canadians because of that tradition (he had no respect for Canada's French tradition either but that is not relevant in this context). Prime Minister Harper, however, by restoring the traditional titles of our military and properly insisting that our embassies display the Queen's portrait, has been telling Canada and the world that he does respect our British tradition.

That tradition consists of more that outward symbols, important as they are. It consists of rights and liberties too. As I wrote at Free Dominion the other day:

"Islamic terrorism poses no threat to Canada that a sensible immigration policy would not solve. There is no need for domestic surveillance and laws which further erode the traditional, prescriptive, rights of Canadians. It would be better for the government to work at undoing the damage to the traditional rights which all Canadians are supposed to possess as subjects of the Queen that was done by Trudeau's Charter of Rights and Freedoms." (

I am still working on my next essay in my "Arts and Culture" series. It is on the topic of music. I have re-written it a couple of times already and am still not satisfied with it, but will hopefully have it ready to post next week.

Sunday, September 4, 2011

Defamation Law in the Dominion of Canada

James Boswell, in his exquisite biography of Samuel Johnson recounts a conversation with his friend and subject in which he said “Sir, you'll never make out this match, of which we have talked, with a certain political lady, since you are so severe against her principles.”

To this Dr. Johnson replied “Nay, Sir, I have the better chance for that. She is like the Amazons of old; she must be courted by the sword. But I have not been severe upon her.”

Boswell, begging to differ, responded “Yes, Sir, you have made her ridiculous.”

Dr. Johnson then came back with “That was already done, Sir. To endeavour to make HER ridiculous, is like blacking the chimney.”

I often feel that a paraphrase of this particular witticism would be appropriate in the mouths of judges when dismissing frivolous defamation law suits. There are far too many people in this day and age, who the moment somebody has “been severe upon them” vocally or in print, rush to their lawyer and file a defamation suit in the hopes of having their hurt feelings assuaged by being made richer at the expense of their detractors.

Much of the blame for the problem lies in the laws themselves. The British/Canadian parliamentary monarchy system is the best form of government the world has ever known. The Common Law is the fairest, most just, set of laws any human society has ever evolved. The best elements in the American republican system are elements which the United States kept from the British tradition when the Americans seceded from the British Empire to form their Republic.

In the case of laws pertaining to defamation however, whether libel (written defamation) or slander (spoken defamation) our laws have long been in need of a major overhaul. This is one of the few instances – perhaps the only instance - in which I would say that the Americans have actually improved on our system.

I am sometimes inclined to agree with the late Dr. Murray N. Rothbard that libel and slander laws should be abolished altogether. In The Ethics of Liberty, (1) Dr. Rothbard argued that laws against libel and slander are based on the idea that a man has a property right to his reputation. This idea, he further argued, is false because a man’s reputation does not consist of ideas in his own head but rather ideas in the heads of other people. Since a man has no property right to ideas in other people’s heads, Dr. Rothbard reasoned, he has no right to legal protection of his reputation against libel and slander.

That is an intriguing argument but it has a weakness in that it relies upon the classical liberal worldview. Classical liberalism teaches that human beings are sovereign individuals who possess natural rights, that the only valid societies are societies based upon voluntary agreement between individuals, and that the only valid laws are those which protect the rights of individuals. For those who accept this worldview, the starting point for the justification of any particular law must be the right or rights of the individual which it protects.

If it is false to say that a person has a right to his reputation – to be thought well of in the minds of others – it is nevertheless true that damaging a person’s reputation can cause suffering for that person, and not just hurt feelings. Damaging a man’s reputation can hurt his career, his business, and his livelihood. If a person maliciously sets out to cause this kind of harm to another person by telling lies about him then surely the law is justified in providing the person so harmed with a means of legal redress.

Dr. Rothbard’s argument breaks down because his premise is false. Protecting the natural rights of individuals is not the sole or even the primary justification for law. Laws exist, because human beings are both social creatures – it is our nature to live together in families, communities, and societies – and individual persons, with personal interests. There is often tension between one person’s interests and another person’s interests, and between our personal interests and those of the community. We also have a flawed moral nature that disposes us towards hurting others if it is to our advantage. Our human nature therefore requires laws so that disputes can be settled peacefully and grievances redressed without an escalation into violence that threatens all of society, and so that those who in willful disregard to the laws of society harm other people can be held accountable.

There are two main categories of law. Criminal law prohibits and prescribes punishment for acts in which people intentionally and without justification harm other people by killing them, stealing their property, etc. Civil law provides a legal framework in which disputes between people who have been unable to come to a private agreement can be settled.

Where do laws against libel and slander fit in?

Defamation laws fall under civil law, under the category of personal injury. Defamation is considered to be speech which injures another person entitling that person to compensation.

Since defamation law is civil rather than criminal complainants are not held to the strict standards required of the Crown in criminal law. This is where the problem with libel and slander laws lies.

The strict requirements placed upon the Crown in criminal law are there for a reason. They are there to protect people from wrongful prosecution. To even proceed with a case the Crown attorney must demonstrate to the court that a crime has taken place and that the evidence points towards the defendant. At no point does the burden of proof shift from the Crown to the defence and in order to obtain a conviction, the Crown is required to establish guilt beyond reasonable doubt.

The criminal justice system of the English speaking world is weighted in this way, against the prosecution and in favour of the accused, because a key principle of that system as it has evolved is that it is better for a large number of guilty people to go unpunished than for a single innocent person to be punished for a crime he did not commit. This is one of the most admirable aspects of our justice system.

The reason a similar burden is not placed upon the complainant in civil law is that civil law is not supposed to be punitive. It is there to mediate disagreements not to punish people for criminal acts. If your living room window is broken because your neighbor threw a baseball through it that is basically all you have to demonstrate to the court to be entitled to compensation from your neighbor.

An injured reputation, however, is not quite like a broken window. A window cost you a specific amount of money to install in the first place and will cost you so much to repair. That is easily assessed and places a limit on how much compensation you can ask for.

It is much harder, if not impossible, to assess damages on harm to your reputation. Without that limiting factor, laws under which people can claim compensation from others become potential weapons in the hands of those who would abuse the system to harm their opponents.

Which is exactly what libel and slander laws have become.

There is another difference between libel laws and other civil laws. The man who takes his neighbor to court for a broken window has to at least prove that his window was broken. Libel complainants are held to a less strict requirement. They do not have to show that their reputation was actually damaged, only that the words of the defendant have a tendency to cause such damage.

Is this a good or a bad thing? Many people would probably say that if Person A published a statement that Person B is a sexual pervert and a serial killer, without proof and in fact knowing that he is telling a lie that that is sufficient for Person B to press a libel action against Person A regardless of whether anyone believed him or not. Most of us would probably be uncomfortable with the suggestion that people should be allowed to go around telling those kinds of lies about other people without fear of repercussions.

If, however, Person B is entitled to sue Person A over such statements without proving that they have actually damaged his standing in the sight of others, hurting his social position or his business and livelihood, then what exactly is he to be compensated for if he wins his suit? Is he actually seeking compensation for an injury or punishment for a wrong?

If one person can sue another person for libel without demonstrating that he has been denied access to certain social circles, that he has lost customers, been refused a job or promotion, been demoted or fired, or otherwise suffered a tangible, quantifiable, injury as a result of the second person’s statements then surely such laws are more punitive than compensatory and defendants in libel cases should be entitled to protection from the same safeguards against wrongful prosecution which exist in criminal trials.

It is reasonable for the system to be slanted in favour of the defence and the burden placed upon the prosecution in criminal trials. This does not mean that it is reasonable for the system to be slanted against the defence in non-criminal trials. It is never reasonable for the system to be slanted against the defence. When the system is slanted against the defence it becomes an instrument of injustice.

Those who fail to see the problem with our defamation laws frequently make the point that “words can hurt people”. So they can. Words can hurt someone’s feelings. People’s feelings, however, are not protected by the law, nor should they be. More importantly, words can cause a person to lose friends and can destroy his career. For this reason a certain degree of legal protection should exist for a person’s reputation.

It is curious, though, the way some people seem to think that a person’s reputation should have greater legal protection than his person or property. Progressive liberals, for example, whose beliefs are quite different from those of classical liberals, sometimes do not appear to place much value in the law’s protection against criminal violence to one’s person and property. They often, as I see it, allow their tendency to regard the perpetrators of violent crimes as victims of society (because of poverty, discrimination, or some such reason) to overshadow the more substantial victimhood of the people against whom violent crimes are committed. Proposals to make the system tougher on violent crimes against people and their property, are typically met with suspicion from progressive liberals who frequently denounce such ideas as a form of fascism. Yet the same progressive liberals are often the strongest supporters of our current libel and slander laws, slanted towards the complainant though they be. Indeed, they are the primary supporters of “hate speech” laws, which are an extension of the concept of legal defamation into the realm of interaction between social groups, and which are even more slanted towards the complainant than regular personal defamation laws.

Yes, words can hurt people. Laws, however, can hurt people too. Furthermore, people need far more protection from the abuse of laws than they do from people’s words. Laws exist to protect people but they made effective by government power which itself can sometimes be a bigger threat to people than the things laws protect people from. The question Juvenal placed, in his sixth Satire, in the mouth of a husband advised by his friends to keep his wife under lock and key, has become a timeless insight into the threat inherent within protective power: Quis custodiet ipsos custodies? - Who will guard the guards?

Progressive liberals clearly recognize this threat when it comes to criminal law and err on the side of making criminal law ineffective in protecting people against violent crime – which is admittedly better than erring in the other direction. They do not give the impression that they recognize that the same threat exists in civil law.

Civil law can be abused, however, to harass and persecute people. This is particularly true of defamation law.

How then should this tort be tweaked?

For starters it needs to be made clearer that only false statements can be considered defamatory. Laws should never prohibit people from speaking the truth and people should never be punished by law for speaking the truth. Most people assume that “false” is part of the essential definition of defamation, and it is generally accepted that truth or accuracy of statement is a valid defence in defamation cases. The courts, however, have not consistently seen it this way. That needs to change.

One of the most disturbing rulings in the history of Canadian law was the ruling in the CHRT v. Taylor and Western Guard case that truth was not a defence. Now that ruling pertained only to Section 13, the “hate speech” clause of the Canadian Human Rights Act, the constitutionality of which is about to be debated in the courts. The Canadian Human Rights Act is a separate category of civil legislation but the theoretical justification for Section 13 is derived at least in part from the concept of defamation. “Hate speech” is said to injure the reputation of social groups – races, nationalities, religions, sexes, groups with a particular sexual orientation, etc. – the way libel and slander injure the reputation of individual persons.

Section 13 was particularly bad law, being so slanted towards the complainant that until the ruling in Warman v. Lemire in 2009, when the defence persuaded the tribunal adjudicator that the law itself was unconstitutional, the defence never won. This is because Section 13 – like the entire Canadian Human Rights Act – was written to serve a political agenda. Ordinary personal defamation law is not quite that bad. It needs to be made unquestionably clear, however, that in defamation cases truth is not just a defence, but an absolute defence.

Secondly, malice must be defined as an essential component of defamation. In civil law one does not ordinarily have to show malicious intent in order to obtain compensation. The way it currently stands in Canadian defamation laws, no burden of proving malicious intent is placed upon the plaintiff, but if he can prove malicious intent it is allowed to negate the truth defence. This needs to be reversed. The truth defence must be made absolute, so that demonstration of intent can not negate it, and a burden of demonstrating malice placed upon the plaintiff.

Defamation law differs from other civil laws in several ways as we have seen. Since laws against libel and slander have the effect of placing limitations upon our freedom so publicly speak our mind the demonstration of malice must become an absolute requirement on the part of the complainant in order for these laws to brought into harmony with the spirit of British/Canadian law viewed as a whole.

Every society recognizes that there must be limits on personal freedom. Some societies regard freedom as something given to their members by government and which is limited to those liberties clearly defined by law. Societies within the tradition which evolved in Britain do not think this way. We regard freedom as something people possess as a gift from God, not a gift from government, and in our tradition laws define the limits on liberty, not the extent of liberty. Under the Crown, people are free to do whatever is not expressly prohibited by law, and government needs to justify the limitations it places on our liberty.

The justification for the major prohibitions of criminal law is fairly obvious. Acts like murder, robbery, rape and assault are acts which are clearly malum in se – wrong in themselves. Nevertheless, to convict a person of having committed one of these crimes, the Crown needs to demonstrate that the person knew he was committing a crime. The principle behind this is actus non facit reum nisi mens sit rea – the act does not make one guilty unless the mind is guilty. If this burden is placed upon the prosecution in cases of murder, rape and robbery, how much more then does it make sense to require a demonstration of malicious intent before we place limits on a person’s freedom to speak their mind.

What does it mean to demonstrate malice in a defamation case?

To show that the person making the defamatory remark a) knew that what he was saying was false and b) spoke with the intent that his remark would be believed by others so as to damage the complainant’s social status, career, or livelihood.

Finally, if someone files a complaint of libel or slander against someone, over some petty remark, in order to waste that person’s time and money in a lengthy court battle, then he should be held in contempt of court and charged with mischief in a criminal court.

The recent decision of Mr. Justice Peter Annis in John Baglow v. Roger Smith and Connie and Mark Fournier is a refreshing indicator that judges in this country are starting to wake up to how our defamation laws can be misused against opponents in the age of the internet. Lets hope this trend continues and that the changes suggested above are implemented to protect people from the abuse of libel and slander laws and make our defamation laws more compatible with the spirit of the British/Canadian legal tradition, rooted in justice and liberty.

(1) Murray N. Rothbard, The Ethics of Liberty, (Atlantic Highlands: Humanities Press, 1982)