phughes's blog

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Ideas about the "Big Idea"

I read a thought provoking article in The New York Times yesterday (August 14th), "The Elusive Big Idea" by Neal Gabler (see the Sunday Review). Gabler points out that "Ideas just aren't what they used to be. Once upon a time, they could ignite fires of debate, stimulate other thoughts, incite revolutions and fundamentally change the ways we look at and think about the world." They became part of the culture and made celebrities of thinkers. We don't care as much about big ideas today, he suggests. We treat "observations" as "ideas". And we rely more on "superstition, faith, opinion and orthodoxy" rather than "rationality, science, evidence, logical argument and debate". If this is true, why is it? Gabler has all kinds of ..."observations" ... about why: universities have "retreat[ed] from the real world", rewarding narrow specialization rather than "daring"; the public intellectual has been replaced by the outrageous pundit; the increasing importance of a visual culture. The most important development, though, is the vast increase in information available to us and the lack of time to process it, and much of this information is really not very useful or is only useful in the short-term. The way we communicate information is also inimical to generating ideas (or well-developed ideas, perhaps we should say) - blogs (indeed!), tweets and other means of social networking - and the speed with which one comment - observation - replaces another. 

It's hard not to disagree with Gabler's main point, but I'm not sure I agree that the reasons he gives for the decline in the "big idea" are all the reasons or even the most important reasons. The problem with universities is not the specialization, but the lack of support for humanities and social sciences, as opposed to business faculties, for example, for the move away from an emphasis on thinking and analysis to the functional and the applied degree. "Thinking" really isn't supported. Gabler mentioned John Rawls as the kind of "big idea" thinker he's talking about and asks where are the Rawlses? A few years ago, when I and a colleague were "benchmarking" our law faculty against the university's expectations, we realized that Rawls would not do well under this regime because he really hadn't done very much. It was a bit of a joke, of course, and hyperbolie, but not that far-fetched. There isn't much time for people to develop sophisticated in-depth ideas if they want to satisfy tenure and promotion requirements. (And before my academic friends and colleagues take umbrage at that, this doesn't mean that other contributions aren't important, don't increase knowledge and don't "add value" to society, it just means that the system is stacked against the development of big ideas in the very place they should occur, the university.)

Taking umbrage is another reason for the lack of "daring", as Gabler phrases it. I want to be clear before making my next point that I don't believe in offending people for the sake of offending people or for being rude to each other, or for abusing the privilege of having a platform for developing ideas, and "big ideas" rarely emerge from bigotry and narrowmindedness. But I do think we need to be more open to debate, to unpopular ideas, to challenging ideas: even if they are "unacceptable", who knows what they may lead to as they are in their turn challenged?

It takes time to develop the "big idea" and we're not keen on taking time, these days, perhaps we feel we don't have time. Even if we don't develop the ideas, we don't want to take the time to think about them, we are too distracted.  

And there's the next and last reason I'll mention hidden in my previous observation: it's hard to be "wrong" these days - to test a theory, to throw out an idea, to go out on a limb, to "dare". While social media and the 365/24/7 "news cycle" - better information cycle? - make it easier to disseminate at least bits and pieces of ideas, it is much harder to disseminate well-developed ideas and much, much easier to denigrate them with a glib response. And hard to keep them in circulation, as new information crowds the spectrum, and we move on to the next exciting thing - for a while.

Of course, the ideas of many of thinkers Gabler uses as examples in his article - Marx, Freud, Einstein, Rawls, Keynes, Greer and others - are not actually known by large portions of the population and even if they have become "commonplace", it is in very simplistic and sometimes distorted form. Yet it is fair to say (I think) that it was assumed that at least some portion of the population would have some familiarity with their ideas, their philosphies, their worldviews, and that they have shaped how we approach each other and society, just as at one time in some parts of the world, knowing several languages was an expected skill for certain parts of the population. It is also fair to say (I think) we don't have that expectation of an expanded middle class or anything analogous to it. We tend to be a more functional or instrumentalist-oriented society than one dedicated to the creation of "big ideas".

When it comes down to it, not many people have ever had the big ideas. The difference today is perhaps that too many of us don't have the patience to hear them and to distinguish them from observations, as Gabler says, or from the superficial chatter that fills our airwaves and social media.

The LCO and Community Libraries

There's lots of chat about libraries in Toronto right now as their numbers are compared to the frequency of Tim Horton's, their functions elucidated and their use by specific communities justified,

Libraries may still use the same name (or most do), and they still perform the same functions as they always have, but they have long reflected the changes in how we obtain and and use information and, indeed, in how we define information. As commentators have described them, a library today often serves as a "community hub" for people of different ages, education levels and cultures.

The LCO has made use of these community services to assist in its consultations. We have held consultation meetings in the London library and in library branches in Toronto. We will be using libraries' communication services to let people know about our projects and consultations. We hope to use libraries' "public talks" series to let people know what we are doing. In other words, we are plugging into the library community hub.

These debates about libraries are going on elsewhere. A quick look at the internet gave me the same debate in the UK and in the US. And here's a thought that might be more terrifying to those dismissing the value of libraries than the thought that libraries have historically been the place where people of all walks of life begin their pursuit of lifelong learning and new ideas: one commentator in Seattle suggested libraries "are morphing into the new town halls". In our small way, the LCO has benefitted from the contemporary library - a place that facilitates all kinds of people using similar resources and engaging in improving their community.

When do we restrict "free" speech?

I heard a thoughtful discussion on The Current this morning with a Norwegian newspaper editor about whether the trial of Anders Behring Breivik should be closed or open. The recent proceedings, committing him for trial, are, said the editor, not uncommonly closed and so the judge's decision to close these proceedings was not really an issue. Quite different for the trial itself, he said, which would normally be open and he expects they will be.

We know that Breivik wants to use the trial to state his views about Islam and immigration. We know that he massacred young people and others so that he would have an audience for his views (and possibly because he wanted to eliminate people who might be responsible for continuing Norway's liberal policies on these issues). He himself said in his manifesto (or at least in portions quoted on one English language site: he was "excuting cultural Marxists/multicultural traitors". For some people, then, allowing him to express his views is simply to give him what he wants, to reinforce his horrendous actions. For the editor, and others, the only way to counter his views is to have an open conversation about them.

I do not believe that free speech trumps all, although I do think it is a vital aspect of our society and one of the ways in which we define ourselves and it seems that Norwegians share this view. I think this is consistent with how we have structured our Charter and with a society that seeks to reflect difference, equality, openness and acceptance, even while recognizing that some views need to be restrained.

How does an open trial fit into this? (By open, I simply mean not closed; I do not mean televised.) There is, of course, the principle of open trials, itself a mark of a judicial system accountable to the public for how it tries them. We do not readily make court proceedings secret. This is an accused who must be one of the most despised people in Norway. It is all the more important that his trial be open to critique.

He will defend his actions on the basis of his anti-Islamic, anti-immigrant views, as necessary to put Norway on the right path. It will be a fundamental aspect of his trial. Do we think that his expression of these views as justified by killing 76 people will convince those who do not already share his views, as do some people in Norway and elsewhere? Will the horror and vilification that have been directed at him convince others to share that reputation? His actions have been well publicized; copycats are already aware of them. His views are broadly known, his manifesto posted on Facebook.

Do we think that allowing him to express these views is to legitimate them? I recall when Ernst Zundel was on trial for spreading false news, thereby requiring survivors to testify about their experiences. There were those who would not have put him on trial because it gave him a platform. Whatever the merits of that position - or of the law, found to be unconstitutional - the same cannot be said of murder, unless I suppose the killer is found to be insane.

The argument of exposing these views and having them rejected, assuming that they are, is a strong one, although not convincing to those who share them I am sure. It is true that extreme views, couched in soft and reasonable tones, might influence others. They cannot be left unchallenged on the assumption that most people do not share them. Therefore, the notion of free speech requires that those who disagree will also speak out. The news editor from Norway made this point: for him, being able to publish the views as the accused speaks them in court, also provides an opportunity to counter them. The press, he said, cannot be a "mike" for this man, cannot merely repeat what he says. A society that believes in freedom of speech also has an obligation to use it to defend other values and to reinforce them.

 

Enjoying Summer Gardens

I'm taking a break from the usual to talk about the pleasure of summer gardens - my own and others.

For the first time, last year I enlisted assistance in preparing a new garden. I've developed gardens in North Bay and Toronto, Ontario, Fredericton, New Brunswick, and Calgary, Alberta - nothing fancy, but always a soruce of pleasure for me. My Fredericton garden was a real sanctuary; over nine years, I dug beds for herbs, iris, perennials, cutting and built (with help) a dry stream leading from a barrel of colour to a Japanese lantern in the shade. When I left, the spring garden at the front had started coming into its own. In Calgary, I moved into a new house and instead of having sod put in, I planted all the (not huge) space with flowers and herbs.

My garden now is the largest I've had and when I moved in, it was all grass, with some overgrown and partially dying plantings in the front. For once, I decided I should do it right. I ended up working with Joanne Dale, a landscaper, whose motto is "lose the lawn". Joanne has now moved to Hamilton, but keeps her eye out for her Toronto gardens. She translated my vision into something realistic (and something a bit more bushy than flowers) and architecturally interesting. Joanne's enthusiasm is contagious and she has the knack of almost convincing you that you had something to do with the design of your own garden! Planted last spring, its survival is now up to me.

I've also visited some lovely gardens this summer while on holiday. Years ago, I visited Kew Gardens in London and it was a "must see" visit for me again when I was there earlier this month - it's larger and more wonderful than I remembered with the waterlily house (the tallest and broadest waterlily I've seen), the secluded garden (the envy of anyone who sees gardens as a place to rejuvenate and remember what matters, as I do). the Mediterranean Garden and on and on - a full day's feast for the eyes and other senses. Regent's Park, with its inner Queen Mary's Garden, full of vibrant perennial borders and rose gardens, was just a stop on the way to the National Gallery, but what a stop! I did miss the Chelsea Physic Garden, founded in 1673 to train apothecaries, right in the busyness of London - still a regret.  My cousin and his wife live in Guildford, in Surrey, and we took the
train out there for a super day, including a personal tour by Kate of
Wisley Gardens where she volunteers. These gardens were a gift to the
Royal Horticultural Society in 1903 and have grown with time. Finally, there were gardens elsewhere, most notably the magnificent formal gardens created by Peter the Great at his palace in Peterhof, outside St. Petersburg, modelled on Versaille (as is the extravagence of the palaces). There were others, but I'll end with the Tivoli Gardens in Copenhagen, an amusement park, of course, but also a place of charming gardens and fountains (as well as pantomines and other entertainments).

Back to talking about the LCO soon - the projects are all moving forward, with releases in the older adults and persons with disabilities proejcts soon and the final POA report on its way.   

Back from the UK - what's news there?

I came back from the UK last week - it was a visit for pleasure, but of course I couldn't resist checking out the legal - and legally related - issues. Anything related to LCO projects naturally catches my attention.

When I first arrived there were a few stories in the press about a trial involving sexual assault and the fact the accused did not testify. The right to remain silent remains, but it was strange to read about the prosecutor commenting to the jury that they could infer that accused had not testified because he couldn't provide a reasonable story about what had happened. The accused has to be warned that inferences can be drawn from a failure to testify; inferences can also be drawn if the accused says he or she will testify but then doesn't do so. In practice, I suspect juries (and judges?) might draw inferences whether they are aware of it or not, but nevertheless it's odd to see a jury's being invited to draw an inference relevant to the accused's guilt.

The other major issue initially had to do with the use of social media by members of juries during a trial. In particular. one juror A made sympathetic contact through Twitter with a woman B who had been acquitted of an offence, but was the girlfriend of another accused whose trial was ongoing (and in which A sat on the jury). B reported the exchange to the authorities, after, it has to be said, leading A on. Not only did this conduct result in a mistrial, but A was sentenced to prison. Jurors have been communicating with friends about the guilt or innocence of an accused; in one case, a juror took an online poll about whther the accused had committed the crime. Jurors also did their own internet research; one foreperson put five questions to the rest of the jury members that he had developed based on his own reseach. One wonders whether these jurors would have phoned their friends after being instructed not to speak about the trial or whether they would have gone to the library to undertake their own research. 

In yet another story, the ability of the police to recall persons on bail with conditions for further questioning was a big issue. The ruling said that the police could not bail persons for more than four days if they did not release or charge them, leading to concerns among those working in the area of domestic abuse that the police would be forced to let suspected abusers go without imposing any conditions about contact with the alleged victim, for example. Today the House of Lords passed legislation to reverse the ruling, although its doing so was controversial because it ignored the appeal process.

I won't comment on the telephone hacking by the News of the World - when I left the UK last week, it dominated the papers (and other media, I suspect, although I wasn't checking other media), but it has now travelled across the ocean and is a big story here. It's an interesting example of how it's possible to do rather nasty things and more or less get away with it until you cross a particular line -  if you don't have a set of principles (by which I mean "good" principles!) by which you do your work. After a while without the principles, it's probably not possible to recognize when the line has been crossed - or even to appreciate that there is a line.

Finally, the UK is facing the same issues most countries are facing with respect to the increasing numbers of older adults. The particular matter being discussed last week was how older adults would be expected to pay for long-term care, but the quality of care is also up for debate. The LCO's older adults project is intended to guide decisions about these and many other matters by the application of a framework. The interim report in the project will be released later this summer. 

 

 

 

 

Introducing the LCO's Own "Webmistress"

The LCO relies on Osgoode ITS for its computer support, one of Osgoode's "in-kind" contributions. If we can't log on, if we need a new computer for someone, if we need to update software, if we just can't make things "work", we call the Helpdesk or the other IT providers. And if we need help with the website, something a bit more complicated, Nyree is our technical advisor (and "doer"). In other words, we've got a great support system, with Brent as our Project Manager.

But our regular website updating is done by Amanda Rodrigues. Amanda was hired to help Janice Williams do all the (sometimes invisible) admin work any organization requires and she does lots of that. And she was supposed to do updating on the web. So what she does isn't exactly outside our expectations - how she does it is a whole other thing.

Amanda is always looking for new ways to do something, she does very little by rote (unless that really is the way it should be done). She takes pleasure in being part of the process of deciding how to add material or how the material should look. She doesn't just add our on-line newsletter, she designs it, to reflect our hard copy version. She's our "go-to" for Powerpoint, unusual charts and anything in that category that requires a bit of creativity.She's responsible for the logistics for our consultations and spent time on the road last spring with Lauren Bates, Kirsten Manley-Casimir and various students for consultations in the project relating to persons with disabilities.    

All this really makes a difference for us. But I'd miss an important aspect of what Amanda contributes to the office if I didn't mention the exuberance she brings to what she does, the way she greets a challenge (pleased to have them) and the insights she provides (not always on purpose, I expect) into the language and outlook of someone who is younger than any of the rest of us "regular" staff. She makes me laugh (and most of the time she means to!) and that's very welcome.

She has completed her Bilingual (English/French) Specialized Honours B.A. in Political Science at Glendon and is waiting to graduate. She's deciding what her next educational challenge will be. I know whatever it is, she'll do well if she brings to it the attitude and openness to learning new skills that she brings to her contributions to the LCO.

Thinking of libraries and the legal system

There have been a few media stories lately about closing public library branches and school libraries. The criticism has been that even though technological resources have become vital and have in many cases replaced books, this doesn't mean that students and others can't benefit from the expertise of librarians. It got me to thinking about a comparison with the legal system.

There's lots of reasons why jumping into the pool of technological and book resources to write essays or otherwise undertake research isn't necessarily the most beneficial approach. Those with expertise in undertaking research or in understanding the nature of the resources at hand are often in a better position to link different methods of research, of suggesting creative ways of finding what you need to know, of helping prepare you for the next time you need to undertake research. This doesn't mean we shouldn't learn to do some research for ourselves, but to do it well requires experience. Those in certain kinds of work (such as academic work) will develop the expertise, but it doesn't mean that they can't benefit from time to time from a less-subject defined experience. Those who still read books will see the acknowledgements authors give
to librarians who have helped them find unusual resources, for example. 

The idea that books should be removed to make space for computers is also missing the point, say the critics. This is what the Windsor Essex Catholic District School Board plans to do - remove the books to classrooms to make way for 21st century learning tools. I recall the head of information resources at the University of Calgary who was very much a fan of 21st century learning tools telling me how important it was for the students to see books and the new resources together. 

When I was young, I used to visit a branch of the Hamilton Public Library System on Kenilowrth, within walking distance of where we lived. I exhausted the children's section which was housed in a separate room before I reached the age at which I was to be allowed to graduate from those books and wanted to move on to the adult library. The librarian resisted, but eventually relented and I began a lifetime of many different kinds of adult reading. I don't say this because I think young people today go through the same process - the very idea does indeed seem old-fashioned. But regardless of the advance of other materials and different ways to read books, I believe that there are still children who enjoy the real thing. 

But I digress. The point is that many people who use libraries and children who use school libraries haven't learned research techniques and do not have an appreciations of the advantages and disadvantages of different kinds of resources. They don't know how to weigh the value of what they see on the web.

What does this have to do with the legal system? As in many areas of life, technological access is touted as the way to provide access to the legal system, the way in which ordinary people are able to prepare to grapple with the legal system. And for some people that may work well. For many it might not work well at all. They are not computer literate, they can't distinguish the value of all the information they see, they don't know the questions to ask or the keywords to enter to find out the information they require. Trying to negotiate the legal system without the assistance of someone familiar with the system, someone with the expertise to help identify the important issues, the arguments, the "packaging" of the case, is akin to someone trying to undertake research who hasn't learned the skills to distinguish good resources from bad or to link the information the resources provide to their own situation.

Of course, no one is saying that legal disputants should be relying entirely on internet resources, however well done and however complex their case. But before we continue down a road that "privileges" 21st century learning tools and 21st ways of developing a legal case over the more old-fashioned tools - tools that include real people who know something about these things - let's spend some time figuring out how various sources of information and help can indeed be helpful. That goes for libraries and the legal system. Just a thought.

The importance of volunteers

I spent yesterday at Social Planning Toronto's Symposium. I find it helpful to attend these kinds of events to see what people are talking about and what issues they think need addressing. I sometimes come away with ideas for possible LCO law reform projects.

That didn't happen yesterday. But I did come away with a strong reminder about the need to show appreciation for volunteers. Many organizations benefit from the contributions of volunteers in many areas, such as communication or fundraising. We have not gone in that direction, although it would certainly help us in meeting needs that aren't reflected in the skills of our paid staff if skilled volunteers could assist us. Other organizations use volunteers to carry out basic tasks. Again, there is some room for us there, but one always has to weigh the administration of volunteers against the contribution. 

But we do value the work that our "volunteers" do, although they are not really volunteers in the sense discussed yesterday at the SPT Symposium. Our project advisory groups volunteer their time and expertise. They are extremely helpful in providing feedback on draft discussion documents or interim reports, in helping us organize consultations and in extending our network of contacts. They are not volunteers in the sense that they do this outside their professional lives - they usually are on in the advisory group because of their professional connection and we hope the result of their and our work will be seen as positive by the groups they represent, - but they "volunteer" in the sense that this may not mean taking time from their "day job" but that it may mean adding to their work day. They receive nothing from us except our appreciation, our respectful listening and perhaps a snack or possibly lunch. 

The members of our Board of Governors do volunteer their time. Sometimes they are there because of a specific connection, but even then, this is just part of their general volunteer contribution. For example, while our Law Society of Upper Canada appointee is a Bencher and has been appointed to the LCO Board as one of his Bencher responsibilities, he is volunteering as a Bencher in the first place. As a slight variant, our Ontario law school deans representative sits as a contribution arising from his relationship with the other deans.  Others, such as the Deputy Attorney General, our judicial appointee or the Dean of Osgoode, sit on the Board as one of the responsibilities of their position. Still others, such as our at-large members, including the Chair of the Board, and our Law Foundation appointee add their contribution to us to the other volunteer work they do as people who believe in service to the community.

The important point is that they do not simply attend meetings. They speak for the LCO and its mandate, they are willing to align their good names with the LCO's work and they provide the kind of guidance only experienced and thoughtful people can provide. Of course, we must have a Board, but that is not where their real value lies. It lies in their commitment and for that all of us who work in the LCO offices - and outside them - are grateful.

 

Why I always vote...and what does that have to do with the LCO?

The first time I recall "voting" was in public school. In those days, the teacher ran a mock election. Is that still permitted today? Once I was able to vote, I did, and I have never not voted in a federal, provincial or (as far as I can recall) a municipal election. I have always enjoyed that great feeling I get when I see people from different backgrounds all coming to the polling station - we might not place a tick beside the same name on the ballot, but we all believe that it's worth being there to make the tick.

I vote for the "trite" reason that I can without worrying that I will be injured or killed for voting a certain way. I vote because, despite the too often feeling that maybe it really doesn't matter, I do care about the outcome. And because I have also been reminded that the result does matter, that how Canada defines itself can be changed far more quickly than it might seem possible. I vote because regardless of the outcome, I know that the transfer of "power" will be smooth and in recognition of democratic principles and processes (well, okay, recently I have had some serious doubts about whether that is always the case point).

Do the parties deal with the issues I think important? Not always. Do I hear what I really want to hear? Rarely. Do I know that promises are made to be broken? Unfortunately. Do I know that the best of intentions can be waylaid by unexpected events? Definitely.

For me voting is keeping faith with the democratic system, no matter how flawed it sometimes seems. I expect my governments to do the same and consider the obligation to keep that same faith in their actions crucial. Democracy is about process, as well as the how substantive policies are determined or legislation enancted. 

So I always vote. Mostly I've voted entirely "on principle" - meaning that I have often knowingly "wasted" my vote. Except it isn't wasted to evidence support for policies consistent with one's own view of the good society. More recently, I have been voting "strategically" because the outcome, in my view, really has mattered.

So what does this have to do with the LCO? Not a great deal, perhaps, other than the fact that one of the LCO's principles is about facilitating civic engagement through its consultations and we hope sponsoring roundtables and symposia on potentially contentious issues. In my past, I have been engaged in different ways, including running for office (unsuccessfully), and a march or two and the other usual forms of participation. I really don't do much of that anymore - I have felt my recent jobs have required me to exercise some discretion in that regard. And there are other ways to contribute, as the LCO can do.

So I will be trotting off to my polling station, probably on my way home on Monday. Hope you join me.   

A new kind of initiative for the LCO: law school curriculum modules

The Law Commission of Ontario has recently begun an initiative that is rather different from its usual projects. It is being funded by the Ontario Women's Directorate to develop law school curriculum modules around violence (particularly domestic violence) against women."Women" are identified as the focus of the initiative because they are still the vast majority of victims of domestic violence.

The modules would be available to law schools that wished to use them. They would be flexible enough to be integrated into an existing course, serve as a freestanding intensive program or be combined to form a full course. The idea is that all law students would learn about these issues and not only those who expect to practice family, criminal or tort law or civil procedure. Merely identifying when domestic violence is an issue can be important for almost any area of law. Lawyers need to appreciate issues such as the complexities of relationships that influence how women respond to experiencing abuse or diversity in communities' responses and to know about the support services available.

The OWD funded the development of curricula a decade ago and the results will be very helpful, as will curricula developed for judges and others. We do not have to reinvent the wheel. We will need to be sure that our modules are up to date and include new elements that might not have been relevant or thought about a decade ago.

The LCO has retained Pamela Cross, a consultant who is an expert in violence against women and who has worked on the development of relevant curricula for other groups. She will work with an advisory group composed of representatives from all Ontario law schools, judges, defence counsel, Crowns, service organizations, the police, students and others who will bring a range of expertise to bear on the development of the modules.

How does this kind of initiative conform to the LCO's mandate? The LCO is concerned that the law operates effectively and in its final reports may make recommendations to private actors about actions that will achieve just that, help make the law more effective in implementation. the more lawyers are prepared to address these issues and work with clients who have experienced violence, the more effective the laws against domestic violence will be.

 

 

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