Is there such a thing as an unjust law? Should a law be followed if it is not fair? So often these are seen as merely theoretical or philosophical questions but now these are questions that religious Quebecers, with their jobs and livelihoods on the line, will have to ask themselves if the Charter of Quebec Values passes into law.
Using Fuller’s “internal morality” approach to say that the lawmaking process will not allow unjust laws to be made is problematic. It is possible for lawmakers to create laws that fit within the standard of Fuller’s moral minimum. These circumstances are made possible when the lawmakers have the majority of the society in favor of unjust rules which are used to subjugate less powerful, minority groups. We have seen this throughout history – in racial segregation days in the United States, in South African apartheid and in Nazi controlled Germany. At the most critical time when a small population needs the protection of the law Fuller’s approach is not capable of giving a proper critique of these types of laws if the government implements them properly. In the case of the Charter of Quebec Values, the proposed law still fails King Rex’s test but Finnis has a much stronger case to oppose it.
The Charter of Quebec Values passes the majority of Fuller’s rules. The charter contains rules and cases are not judged ad hoc. They are also publicized clearly and do not require subjects to act beyond their power to follow them. Subject will have time to orientate themselves to the new rules since they are quite easy to follow. Where Fuller would have issues with the proposed law is in the details. There is too much subjectivity in what is acceptable attire which creates uncertainty for citizens trying to follow the law. There is also confusion in that this legislation seems to contradict sections 2(a), 2(b) and 15(1) outlining the fundamental rights of religion, expression and equal protection in the Canadian Charter of Rights and Freedoms.
Finnis is able to give a more damning critique of the Charter of Quebec Values and it conflicts with his basic premise of that the law should advance individual well being. Clearly this charter has a xenophobic background as it negatively impacts non-Christian religions much more than it does the majority Christian population. It promotes the historically Christian Quebec as under the guise of promoting secularity and in doing so violates key tenets of Finnis’ template of well being such as promoting sociability and the ability to find one’s own spiritual experience. These violations conflict with what Finnis describes as each person having “values that lie at the heart of our human morality” (Pavlich, 34). Much like we don’t have to don’t have to reflect on why something is obviously bad like when we see a sign that says “Beach for White’s Only”, because we have the feeling in our gut already that something is not fair or just. I don’t think any argument of Fuller’s can top a feeling of a shared, innate knowledge of wrongness.
I believe this topic is more complicated than basing the decision on the freedom of religion and expression solely. The combating of patriarchal religions has much to do with the more targeted banning of the hijab in France. The French government is put in a no-win situation as they try to liberate women from being forced to wear the hijab while at the same time fighting women who want to wear it. I believe Quebec is failing to learn from France’s mistake and getting involved in this matter. It is a difficult question that perhaps Quebec should not try to answer with this type of legislation. Overall I don’t believe the Quebec Charter of Values has the force of law according to either Fuller or Finnis’ perspective and will not be accepted by parliament as it conflicts with the Canadian Charter.