The Rights Revolution Read online

  Few countries have had a bumpier ride with rights than Canada. Since the 1960s, we’ve been in semipermanent political crisis. While United Nations studies show that the country ranks at the very top of desirable places to live, we also rank near the top in existential anxiety about our political future. Since Quebec’s Quiet Revolution in the 1960s and the more recent renaissance of the aboriginal peoples, attempts to incorporate both nations into our political fabric have brought the legitimacy of the Canadian federation into question.

  Left to themselves, Canadian elites would have preferred to manage this crisis alone. What makes the Canadian political story so interesting has been the way in which women’s organizations, aboriginal groups, and ordinary citizens have forced their way to the table and enlarged both the process of constitutional change and its results. Canada has moved away from a constitutional debate dominated by governments and first ministers to a system of constitutional renewal driven essentially by citizens, interest groups, and nations. Constitutional change might have begun with Prime Minister Trudeau’s desire to anchor Canadian unity in the equality of individual rights. But by the time the process had finished, Canadians had insisted that individual rights were not enough: guarantees for collective language rights, women’s equality, multicultural heritage, and aboriginal land claims had been forced into the Charter of Rights and Freedoms, which was finally passed into law in 1982.

  As a result, Canada has become one of the most distinctive rights cultures in the world. First, on moral questions such as abortion, capital punishment, and gay rights, our legal codes are notably liberal, secular, and pro-choice. In this, they approximate European standards more closely than American ones. Despite the fact that we share our way of life and our public media with our neighbours to the south, our habits of mind on rights questions are very much our own. Second, our culture is social democratic in its approach to rights to welfare and public assistance. Canadians take it for granted that citizens do have the right to free health care, as well as to unemployment insurance and publicly funded pensions. Again, the comparison with the republic to the south is noteworthy. The third distinguishing feature of our rights culture, of course, is our particular emphasis on group rights. This is expressed, first, in Quebec’s Charte de la langue française (Bill 101) and, second, in the treaty agreements that have given land and resources to aboriginal groups. Apart from New Zealand, no other country has given such recognition to the idea of group rights.2

  The fourth distinguishing feature of Canadian rights culture is that we are one of the few states that has actually put in writing, in recent Supreme Court decisions and in federal legislation, the terms and conditions for breaking our federation apart.3 Having survived two referenda on the future of the country, Canadians rightly feared we might not survive a third. So both communities, English- and French-speaking, have sought to define the conditions under which national groups have a right to secede, how referenda on secession should be framed so that the mandate is clear, and how negotiations should take place between those departing and those remaining in the federation. Viewed from the outside, this search for “clarity” on the question of secession probably seems both crazy and dangerous. Doesn’t talking about it make it more likely to happen? The Canadian gamble — or is it a strange kind of genius? — is that clarity will make breakup less likely. The idea is counterintuitive, but it is not stupid: if everybody knows the rules, nobody will be caught by surprise. Unilateral secessions are ruled out. Both sides must negotiate the terms of a divorce. If both sides understand the consequences of their actions, the chances of violence and conflict can be reduced.

  The recent Supreme Court of Canada ruling on secession — now cited throughout the world as a model for any nation facing secessionist claims — understands two key ideas about rights.4 The first is that they often conflict: Québécois rights of self-determination conflict with Canadian rights to territorial integrity, for example. The second point is that in the face of these conflicts, the purpose of rights language is to facilitate peaceful adjudication (by defining precisely what is at stake between contending parties, and in so doing to prevent conflict from turning into violence). Rights not only help to make disputes precise, and therefore manageable, but also help each party to appreciate that the other has some right on its side. The attempt to define rights of secession, in other words, is intended not to make secession easier, but to avoid the nightmare of civil war. If we do manage to avoid this nightmare, it is not because Canadians are either uniquely lucky or uniquely wise. It is because our rights culture actually works.

  When viewed from the inside, Canadian politics has often seemed like a psychodrama of narrowly avoided catastrophe: referenda on secession that nearly succeeded; constitutional packages that fell apart at the last minute; standoffs between whites and aboriginals over land (and lobsters) that nearly came to blows — and sometimes did. Viewed from the outside — and this is how I have seen it, since I live and work outside my native country — Canada has been inventive in finding ways to enable a large multi-ethnic, multinational state to survive and even prosper.

  Canadians may not realize it, but along with all the other things we export to the world, we also export our rights talk. It was a Canadian law professor from Montreal’s McGill University, John Humphrey, who helped draft the Universal Declaration of Human Rights. Humphrey was a democratic socialist and one of the founders of the League for Social Reconstruction, which campaigned for the creation of the welfare state.5 The Universal Declaration of Human Rights, for all its formidable abstraction, is actually an attempt to universalize Canadian social democracy as it stood in the bright dawn of victory after 1945. Many of the provisions of the declaration — including those for medical insurance, unemployment compensation, and paid holidays — may not be especially realistic as an agenda for social rights in the nations of the Third World, but they certainly encapsulate a very Canadian dream of social decency.

  There are more recent examples of the central role Canadians have played in the global rights revolution. The language provisions currently being written into Baltic constitutions to guarantee the rights of the Russian minority are the work of Canadian lawyers toiling for the minority-rights commissioner of the Organization for Security and Co-operation in Europe (OSCE).6 Another Canadian — Louise Arbour, now a judge on the Supreme Court of Canada — served as chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda at The Hague. It does not seem accidental that Canadians — from Arbour to General Roméo Dallaire — have been so centrally involved in the struggle to contain inter-ethnic war. As members of a multi-ethnic, multinational community, Canadians have looked with a particular premonitory horror at what happened in Yugoslavia and Rwanda.7 For we know as well as anyone how fragile nation-states actually are, how close to violence their conflicts are, how vital it is to find justice before it is too late.

  Canadians’ attention to these issues has an important intellectual dimension too. Will Kymlicka, a professor at Queen’s University in Kingston, Ontario, is probably the world’s leading authority on group rights for minorities.8It is even possible to speak of a distinctively Canadian school of rights philosophy that includes Kymlicka, Charles Taylor, James Tully, Peter Russell, Stéphane Dion, and Guy Laforest.9 These thinkers are making a theory out of the elemental experience of Canadian politics: the adjudication of rights claims between national minorities, aboriginal groups, and individuals.

  The way we do this is seen, beyond our shores, as increasingly distinctive. American rights culture is intransigently individualistic, so much so that affirmative-action programs that were designed to overcome the historical disadvantages of particular groups — especially blacks and women — have run up against the belief that favouring groups in this way discriminates against individuals in other groups. And it is hard to imagine America experimenting with territorial self-government for aboriginal peoples on th
e scale attempted by Canada in the 1990s. The motto of the republic — E Pluribus Unum (Out of many, one) — hardly encourages devolution of sovereignty. In Canada, by contrast, affirmative action and aboriginal rights form an accepted part of the Charter of Rights and Freedoms.10

  The other great global rights culture — France — has always been centralist in its vision of the French nation as a civic community of individuals united around the values of liberty, equality, and fraternity. Hence, in France, group rights claims (for example, by Muslims seeking rights to distinctive dress and religious observance) have encountered more difficulty with mainstream culture than they would have done in Canada. Britain is another example of a nation with a great rights tradition that is both strongly individualistic and strongly centralist in its essential orientation. Until recently, that is Under pressure from the Welsh, the British Parliament has extended legal protection and state assistance to language rights, and the insistence of the Scots on their legal and cultural differences has resulted in an experiment in constitutional devolution that takes the United Kingdom some way towards a Canadian federal model.

  The British, American, and French rights traditions have enormous prestige, but they have limited applicability beyond Western Europe and North America, because individualist rights regimes do not capture the dilemmas faced by societies that are both multi-ethnic and multinational (i.e., composed of founding minorities who require, as a condition of continuing membership in the state, the recognition of their rights to language, education, and self-government). These are the dilemmas for which Canadian rights talk is uniquely suited. For this reason, Canadians are found in nations from the Baltic states to Sri Lanka, preaching the virtues of group-rights regimes and federalist devolution as potential solutions to conflicts between ethnic and religious minorities inside nation-states.

  Our legal culture has roots in the three great legal traditions of France, Britain, and America, and yet we do not carry the baggage of an imperial past or the menace of an imperial present. We have few enemies and many friends, and we have the problems to which the world needs answers. So it is not surprising that when the chief justice of our Supreme Court, Beverly McLachlin, visited a judicial training college during a recent trip to China, she found Chinese judges discussing Canadian Supreme Court cases.11 When I visited the Constitutional Court of South Africa, I discovered that the judges there make frequent reference to the Canadian Charter of Rights and Freedoms.

  The originality of Canadian rights culture may be obvious to South Africans, but it is not obvious to Canadians. This may reflect the woeful inadequacy of our language of identity. When we try to identify what makes us distinctive, we round up the usual suspects — everything from the winter and the land to the Mounties — but we invariably leave out our politics. Yet as outsiders familiar with our rights culture realize more readily than we do, this is the core of what makes us distinctive as a people. We are British North Americans, a colonial people in refuge from the republican experiment to the south. We are a community forged by the primal experience of negotiating terms of settlement among three peoples: the English, the French, and the aboriginal First Nations. This gives us a particular rights culture and it is this rights culture that makes us different. No matter how violently Quebecers and English Canadians disagree, they do so within political cultures that are remarkably similar. So talking about rights is a way of identifying something all Canadians have in common.

  The rights revolution distinguishes us as a people, and it has changed our politics. The question is: Has it changed them for better or for worse? I’ve already said that the rights revolution has made our democracy more inclusive by incorporating groups and individuals who were marginalized or excluded. It hasn’t even been necessary for white males like me, who have always enjoyed rights, to give up anything essential; we’ve merely had to find a place at the political table for newcomers. But we’ve also learned, sometimes painfully, a hugely important lesson: that in politics and ethics, human difference is morally irrelevant.12 Whether someone is male or female, black or white, straight or gay may be central to their identity, but these differences should be strictly irrelevant to the way we treat them as persons. Our ideal should be that the way we treat people should depend not on who they are, but only on what they do and say. This is a new idea in history. For millennia, we’ve made our moral treatment of others dependent on whether they were female or male, black or white, abled or disabled, young or old. Only in very recent history have we begun to try to live by an ideal of equality that ignores these differences and treats people as individual members of the same human race.

  Let me illustrate this point by telling you about my mother’s idea of utopia. She always used to say that utopia is not a place where you love everybody — it is a place where when you hate somebody, you hate him for good reason (i.e., because he has done bad things). So her utopia was a place where both love and hate were strictly personal. To my way of thinking, my mother made the best case there can be for a certain kind of moral individualism, one that insists that the important differences in human conduct are individual, not group or collective ones. It is character, not skin colour, and conduct, not identity, that matters when we size people up.

  The question is not whether we believe in this — because we do — but what we actually do to make it come about. We need to look more closely, with a little less self-congratulation, at the gulf between what the rights revolution has promised and what it has actually delivered. Just ask aboriginal peoples. They’ve had their treaty rights acknowledged at long last. But does that make life better on Native lands than it was fifty years ago? Has the aboriginal renaissance in our country cut into the suicide rate among teenagers on Northern Ontario reserves? Hardly. Nobody would claim that having these rights has made matters worse. But nobody is confident that it has made things much better.

  Rights talk may even have become a substitute for reform. More intellectual and moral attention has been given to treaty rights and aboriginal self-government than to the often appalling social conditions on reserves. Aboriginal rights doctrine grows more subtle, and the elites — the professors, policy-makers, and aboriginal politicians who have mastered this doctrine — are making a good living out of rights talk. But are things getting better in Davis Inlet and Burnt Church? To the people in these communities, rights talk remains just talk. Cynics observing this process might almost suspect that elites talk not in order to make things happen, but so that they can sustain the illusion that things are changing for the better.

  It’s not even clear that everybody is getting more rights. Some people are losing theirs. Ask organized labour, for example. They’d say they have fewer rights — and less power — than they had fifty years ago. Closed-shop agreements have been challenged, successfully, on the grounds that they violate the right of the individual to chose what group he wishes to join. Even if we grant that individual and collective rights in the labour market need always to be balanced, it is clear that the pendulum has swung too far. Too many workers have no job security, no pension rights, no holiday rights, and they are working too many hours. This is the dark side of our affluence. It’s not true that everyone has benefited or benefited equally from the rights revolution.

  The problem is not just the gap between rhetoric and performance; there’s a problem with the rhetoric itself. Is it a good thing that rights talk has become the primary language of contemporary politics? What happens when disputes between Canadians — the stuff of politics — become conflicts of rights? In the old days, if you will pardon a generalization, politics was about interests. Interests can always be traded, but rights cannot. We’ve got too much invested in them for that. We think of them as trumps. “Give me my rights” is not an invitation to compromise. It’s a demand for unconditional surrender.

  When a claim is turned into a right, it doesn’t necessarily make it easier to settle. It may, in fact, make it harder. Some people say politics has got a lot shril
ler since rights talk took it over. It has made our personal life shriller too. The Personal Is Political was a notable feminist slogan. But when personal behaviour is politicized, when rights enter the bedroom, moral absolutism sometimes takes over. In the other lectures in this book, I’ll be looking closely at what happened when the rights revolution entered our private lives.

  I’ll also be looking at a related question: Does rights talk bring us together or drive us apart? Pierre Trudeau believed the Charter of Rights and Freedoms would bring us together. Yet the results haven’t worked out that way. Many of the Supreme Court’s rulings on Charter appeals have been divisive. Some people think Charter rights of free speech are being abused by Holocaust deniers; other people think that rights to due process of law are being exploited by male defendants in rape cases.13 More broadly, the rights revolution sometimes seems to have fragmented the political community into aggrieved victims’ groups, each seeking its rights at the expense of the others: women against men, aboriginal peoples against non-aboriginals, children versus parents, Anglo-Canadians versus Québécois, and so on.

  Rights talk may be dividing us because of how it enfranchises and recognizes groups. Group rights are supposed to be necessary to protect those essential things — such as land and language — that can’t be protected unless a group is guaranteed the right to have them.

  But where are such rights leading us? The problem is not merely that collective rights pit groups against groups; they also pit individuals against groups. Almost everybody thinks that aboriginals should have the right to strengthen their self-government, but what happens if individuals don’t want to take part? Should their rights prevail over those of the group? If so, the very future of the group may be jeopardized. Or take an example from Orthodox Judaism. It’s a good thing to give groups the right to practise their religion, of course, but is it so good if the women can’t take part in the prayers? If a woman rebels at this subordination and wants to leave, does the group have the right to compel her to stay? Can it force her out if she tries to change the practices of the group? Many of our toughest choices involve reconciling our belief that groups should have the right to protect their identities from outside pressures with our equal belief that they shouldn’t oppress the individuals inside them.14 One of the later lectures in this book tries to reconcile group rights with individual freedom.