I recently completed a book – Justice as Nostalgia: A New Theory of Justice as Integral to Culture – promulgating a notion of justice based on an archetypal approach to the social contract, an approach incorporating the conscientious neighbour (a more demanding “reasonable person,” as described in a previous post) and what I call consensus morality from among the educated, engaged public. (See the Justice page.) One chapter offers practical applications of the theory, including the following regarding annual flooding in Manitoba. I would be very interested to hear from readers regarding what their own sense of justice suggests is “right” here.
Come spring and early summer in parts of Manitoba, flooding is an annual problem. In 2011, city council in Brandon decided to divert the Assiniboine River so that a less-populated farming region would be flooded instead of a more urbanized area. In 2014, the city considered taking similar measures (dredging the Whoop and Holler Bend so that part of the river-flow would divert into a southern basin), just after those living in the rural area felt they had recovered from the earlier deliberate flooding.
The diversion is characterized as utilitarian, doing the greatest good for the greatest number. When I have asked friends about it, they immediately see this and think it is a just solution, at least to the extent that governments will “compensate” rural dwellers who have the flooding imposed on them. When I say, “Well, assume that twenty percent of the rural families deliberately had moved to that side of the river to be out of the flood plain,” they generally hold to their position but start to become defensive. Then I ask them, “What if one of those families was yours, and it was your home and livelihood at risk?” Then they get annoyed with me (for snapping away the cloak of invisibility on the farmers’ suffering?), and feel that I am “moralizing,” perhaps suspecting (correctly) that I cannot agree that the diversion is necessarily a just measure, or even that it really works a greater good. Gamely, I press on, “Never mind the damage to the agricultural land and possibly the water table, what about the intangibles, such as the impression among the affected farmers, not to mention rural dwellers generally, that, yet again, the city slickers are pushing the dirty end of the stick on them?” This is the challenge of moral consensus, being able to put yourself in the shoes of the sufferer, staying objective but with a subjective understanding.
Naturally that is what a court would be obliged to do if the farming families brought a constitutional challenge, arguing, for instance, that the measures impose an unfair (unequal) burden on them compared to other communities, particularly those who suffer or do not suffer the flooding according to how nature behaves in the normal course (which of course includes longer-term influences caused by human settlement and exploitation). We can imagine that the court would agree that there had been differential and perhaps even arbitrary treatment, but it also might agree with my friends that the treatment is “demonstrably justified in a free and democratic society,” as the constitution puts it, in permitting authority to over-ride protections accorded by the Charter of Rights and Freedoms.
So do we have yet another hard case in the utilitarian-contractarian debates regarding moral philosophy. In a world of perfect justice, presumably the flood burden would be equally shared. Perhaps the community could agree that compensating the farm-dwellers – in the form of money, help in rebuilding, counselling, etc. – would be a fair exchange for the river diversion. Perhaps their restored properties would put them in a better position materially, and thus be more reasonably “compensatory.” You could say that the contractarian mitigates the utilitarian in this way, in a sort of compromise common in our societies. For example, while the inability of a couple to “get pregnant” in itself presents no compromise to one’s bodily security, and while it must remain a lower priority to serious disease and injury when we allocate health-care resources, we sometimes devote public money to funding in vitro fertilization, albeit for a limited number of trials. Most likely, the greater good, at least in terms of resource-allocation, is in not funding the trials at all. On the other hand, artificial insemination could produce another Einstein, not to mention provide a greater communal sense of sharing the burden of a disability.
In the Assiniboine River case it is hard to know what a moral consensus would be, should authority consult the wider populace. My friends seem to feel that, even if we agreed that it was “more moral” just to permit nature to take its course (and it is by no means clear that we could agree on this), such a decision would be destructively impractical, not to mention fundamentalist-extremist in the moral sphere. Given the weight of history, I remain extremely uncomfortable obliging a non-consenting minority to bear an unequal burden.
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