History offers many examples where immediacy has given way to democratic excess, be it the despotisms of Oliver Cromwell and Maximilien Robespierre, or the hope of Louis-Joseph Papineau, leader of the Rebellions of 1837-38, who sought to devolve power to the people in perpetuity.
The great Canadian constitutional scholar, Janet Ajzenstat, describes this desire as manifest in the recurring phenomenon of “romanticism.” Romanticism disdains parliamentary forms of government and finds democracy in certain “moments,” when the true will of the people is expressed, often in the streets during protest and revolt. Consequently, true democracy remains elusive, while it nonetheless continues to stir the human heart.
In her essay The Once and Future Canadian Democracy, Ajzenstat contrasts romanticism with liberalism, arguing the latter is “an ideology of liberty,” “born of resistance to the political absolutism of 17th-century Europe, and at its heart is the idea – so splendid in the opinion of liberals, so chilling when perceived by romantics – that law can make you free.”
Liberalism and romanticism are the two “great alternatives” for politics in the modern era. And while our democracy embodies the best of liberal ideas in its constitutional framework through parliamentary government, the latest iteration of romantic outburst against it is present in the emergent idea and application of ‘social licence.’
Prime Minister Justin Trudeau has suggested: “Social licence is more important than ever. Governments may be able to issue permits but only communities can grant permission.”
How has it come to this – that amorphous “communities” should directly express the will of the people, instead of officials elected to founded institutions representing the people’s will?
Brian Lee Crowley, managing director of the Macdonald-Laurier Institute, and his MLI colleague and law professor at the University of Saskatchewan, Dwight Newman, offer some answers in a series of essays and commentaries. There are two general meanings to the expression ‘social licence,’ Crowley argues, the first is a matter of “cool, calm, intelligent risk and reputation management by government and industry,” and the second is “a polite term for mob rule.” The first belongs to calculations of public relations, the second to desires of the romantic heart.
A mining executive introduced the former variety to public discourse in the late 1990s to benefit natural resource development companies, as Newman discovered. One can argue that companies and industry should be more committed to cultivating public support for their projects, as Markham Hislop does. Nevertheless, Newman is correct to distinguish between the strategies of commerce and the imperatives of law. It may be good for business long term to generate community approval through the tactics of public relations, but insofar as this provides a “social licence to operate,” it is an outcome and concept without legal standing, and is wholly distinct from the permits and licences required by law for any given undertaking.
So much for the facts, however. Through a manner of ‘conceptual drift,’ a novel and expansive understanding of social licence has emerged proclaiming requirements of ‘extra-legal means.’ Troublingly, it derives inspiration precisely from its ambiguity, a characteristic at once opposite and opposed to the formality and clarity in process of law.
Permits and licences associated with the law – that great principle of liberalism that guarantees both liberty and equality – are issued by authorized institutions and agencies of government, in accordance with regulatory and administrative proceedings (think CEEA, NEB, NRC, etc.). The rules are explicit, there are requirements and mechanisms for public consultations, and in the event of damages or violations of interests, there is an outlet for recompense. So much constitutes the institutional edifice according to which decisions of great national interest and concern have been made. By weighing and balancing all relevant information through an independent and disinterested process, one can expect the outcomes to be fair, and to garner local and public support.
In contrast, nobody knows where one applies, what documents are necessary, who reviews applications, which rules must be followed, or what the appeal process consists of for social licence of this other kind.
As Crowley writes, “there are no answers to these questions. Indeed to ask them is to invite ridicule from the social licence advocates, who will say that to ask such questions shows that you just don’t get it.”
Thus, Crowley argues, the more recent, nebulous, and anti-institutional variety of social licence should instead be called “opponents’ permission.” Its proponents dismiss the liberal and institutional arguments as “mere legalism” – the retort of impatient romantics everywhere – suggesting rather that an “abstract and ill-defined entity called ‘society,’ independent of legislatures, regulators, and courts, must be satisfied or else it is illegitimate to build the mine or the pipeline or the plant.”
If the purity of this ideal follows from not being tainted by the institutional filtration process of human wills and passions, it is nonetheless sullied by its polemic.
By disparaging due process, and in their refusal “to recognize the fundamental legitimacy of [our] institutions,” Crowley charges advocates of this licence by society with “an attack on democracy.” Hence his likening it to “mob rule.”
Thanks to the very rule of law, everyone is equally free to criticize any given decision, including the processes used to make decisions. However, democratic means consist of making persuasive arguments and postulating ideas to political parties and voters for support for the sake of change. We all have recourse for our voices to be heard within the constitutional and institutional framework of our liberal regime. But we all play by the same rules of the game.
Our regime is founded on the principle of consent, which liberals and romantics alike acknowledge as the source of legitimacy. The difference is that the former defend its operation within the existing legal structure, the latter seek to excise it for the purpose of direct application in some way. But in what other way exactly?
It is the institutions of government – Parliament and affiliated bodies – that incorporate our consent, that provide the mechanism for continuing to adjudicate among the plurality of “communities” to which Trudeau refers. The romantic disavowal of our institutional framework, following on the desire for unmediated consent, would only return us to the state of nature: to a lawless condition amidst a cacophony of wills and interests.
Any welcome of romantic desires for amelioration must not be in repudiation of the existing, albeit imperfect form of liberal democracy.
Trevor Shelley has a PhD in Political Science from Louisiana State University and currently teaches in the History of Ideas program at St. Mary’s University, Calgary.
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