The Rights Revolution Read online

  Yet rights are more than a set of procedures. They’re not neutral. They express commitments, such as avoiding violence and treating people equally. Because they express values, they’re not just the rules of an unchanging status quo. Values can be turned against the system whenever it fails to deliver. And no system of law ever fully lives up to its ideals. The right to vote and the right to due process of law express a commitment to human equality that we preach better than we practise. Black people in the American South took these promises seriously, even though they lived in a society that betrayed them every day. They marched against the arrayed power of the police and sat on the steps of courthouses not just to secure these rights, but to find recognition for their equality as human beings. So rights are never just instrumental. They aren’t valuable just because they allow people to protect themselves or advance their interests. They are valuable because their possession is a crucial recognition of their moral worth.

  Rights are also there to help us resolve our conflicts with our fellow citizens. These rights give us entitlements, but they also simultaneously exercise a constraint: we’re not allowed to solve our disputes by force or fraud. Rights commit us to deliberating together, to agreeing to adjudication when we cannot find a compromise ourselves, and to abstaining from violence if we don’t get our own way. This teaches us that every right entails an obligation. My right to go about my business without being assaulted or abused goes with an equal obligation to avoid doing the same to others. The reciprocal character of rights is what makes them social. It is what makes it possible for rights to create community.

  I don’t want to sound pious or naïve; I’m describing the way our society ought to work, not the way it actually does. Nobody, least of all me, supposes that rights have driven force and violence from our society. We are a long way from the ideal — but the ideal is not powerless either. And the ideal is that we try to live in a shared world based on right rather than might. The ideal is not there to lull us into sleep; it’s a continual reminder to rulers and ruled alike that we do not actually live by what we say we believe.

  The wider point to make is that rights never securely legitimize the status quo; they actually make grievance legitimate, and in so doing compel societies to continue their partial, inadequate, and therefore unending process of reform. This idea that society is forever incomplete, forever in search of a justice that remains beyond its grasp, is characteristic of modern societies everywhere. Ancient empires — the Aztecs, the Moguls, the Chinese — thought of themselves as finished creations, works of art that could not be superseded or improved. People in modern societies cannot think in this way. One reason is our rights talk. It condemns modern societies to a permanent self-inquisition, a permanent self-questioning. It is largely because of rights, therefore, that, in the Polish philosopher Leszek Kolakowski’s words, modernity is on endless trial.3

  The claim that rights just make us selfish individualists, defending ourselves against all comers, hardly captures the truth of the matter. First of all, some rights, such as those protecting freedom of assembly and freedom of speech, were expressly created to enable individuals to get together and create communities of belief, faith, and commitment. Without these rights there wouldn’t have been, for example, any socialist or union politics in this country. Second, having rights means respecting the rights of others. Respect doesn’t have to mean sympathy, friendship, or fellow feeling. We can function with far less. Respect actually means listening to something you’d rather not hear, and listening must include the possibility of recognizing that there may be right on the other side.

  Rights alone cannot create community feeling — you need a common history and shared experience for that. But living in a rights culture can deepen one component of community, which is trust. It’s not full, loving trust of the kind you get in good families or happy marriages. A rights culture is properly poised between faith and suspicion: we trust each other just enough to argue out our differences, but not so much as to forget the possibility that others may be tempted to tread upon our rights.

  So rights do more than legitimize individual grievances. They express values, and in so doing help foster conditional respect and a limited kind of community. It is the very nature of this community that everyone in it will have moments of disillusion, fears about the fragility of the fabric that holds it together. For a rights community is in constant dispute. The balance it seeks is just enough collective sense of purpose to resolve these disputes, but not so much as to force individuals into a communitarian strait-jacket.

  So far I have been talking about civil and political rights, and the kind of political community — disputatious, unfinished, and yet coherent — they help to create. These rights derive from citizenship in particular national communities. It is the relationship of rights to remedies provided by these nations that gives them a clear meaning. Now I want to shift the focus to another category: human rights. These are the inherent ones I referred to earlier, the ones that derive from the simple fact of being human. They don’t derive from citizenship or membership in a particular nation. So where do we get them from? And how do we enforce them? Here we are in a murky place. Imagine asking someone who he is, only to have him reply, “I’m a human being.” That’s not much of an answer. If he replies, “I am a Canadian,” however, you know who you are talking to. The basic problem with the idea of human rights is that it is not clear what community the rights refer to, or what actual remedies they confer.

  Of course, someone will immediately reply that the community to which human rights refers is the human race. But what kind of community is that? Moreover, what kind of identity is it? As a matter of fact, we never encounter human beings as such in our daily lives, only as determinate members of particular races, classes, professions, tribes, religions, or communities. When they present themselves to us, and we to them, difference is the focus: particular names, places of birth or origin, individual beliefs and commitments. Human differences are what define us, not the humanity we share.

  The problem of what kind of identity our human identity actually is has bothered thinkers for a long time. The French Revolutionaries sought to universalize the idea of human rights in the Declaration of the Rights of Man and Citizen in 1791. Writing some years after the French Revolution, the wise old reactionary Joseph de Maistre remarked that he’d met a lot of people in his life — Frenchmen, Spaniards, and Portuguese; men and women; rich and poor — but that he’d never actually met a Man, with a capital M.4

  The British philosopher Jeremy Bentham, writing in the same era, said much the same. What we call human rights he called nonsense on stilts, meaning that he just couldn’t see whose rights these were exactly, and how they were supposed to be enforced.5 And if you can’t enforce a right, what’s the point of having it?

  If all human beings were safely ensconced within political communities that accorded them basic rights, then Bentham and Maistre’s point would be conclusive. In reality, rights-respecting societies are a rare, even endangered, species. In the real world, billions of human beings live in despotic regimes, or in collapsed or failed states where nothing is secure. They need human rights because those are the only rights they have. This helps us to see human rights as a residual system of entitlement that people have irrespective of citizenship, irrespective of the states in which they happen to find themselves. Human rights are the rights men and women have when all else fails them.

  If all else has failed them, they have no remedies, and they must look to their own defence. Human rights express the principle that when the governed are oppressed beyond hope of remedy, they have a right to defend themselves. This justifies the most radical step human beings can ever embark upon: taking the law into their own hands.

  Taking the law into one’s own hands doesn’t just, or even necessarily, mean taking up arms. It may mean appealing for help beyond one’s own borders. Human rights create extraterritorial relationships between people who can’t prot
ect themselves and people who have the resources to assist them. The rights revolution since 1945 has widened the bounds of community so that our obligations no longer cease at our own frontiers. This new culture of obligation, when coupled with the emergence of global media bringing us pictures of the anguish and suffering of strangers beyond our borders,6 presents us with old moral dilemmas in a new form: Who is my brother? Who is my sister? Whose needs must I make my own? Whose rights, besides my own, must I defend?

  These questions arise in relation to not only strangers far away, but also those much closer to home, as close as the holding pens of our international airports: emigrants, refugees, or asylum-seekers. They have some rights under our system, but they remain vulnerable to administrative and police abuse, and so it’s important that they have human rights protection. Their chief protection is the UN’S 1951 convention on asylum. It mandates that people in one country have a right to be accepted in another if they can demonstrate a well-founded fear of persecution. If they can prove this, they can’t be sent back to face arrest or abuse. To be sure, these rights are abused by economic migrants, but it is the nature of rights to be abused. Abuse doesn’t justify the abrogation of the right for all, merely its more effective policing against abuse by some.

  It is legitimate to make the right of asylum conditional on the stipulation that the persons must be in danger — just as it is legitimate for communities to limit the number of immigrants they take in every year.7 Too much immigration too fast can overwhelm the capacity of societies to treat people fairly and help them make a new start. Too little immigration turns rich societies into exclusive and unequal clubs. Immigration policy struggles to reconcile commitments to people in danger and in need with equal commitments to safeguard a national community’s cohesiveness and capacity to care.8

  Human rights are there to protect people who do not have secure citizenship, or who arrive at our doors without rights of their own. Human rights are also important to those who have secure citizenship rights. Even democratic states with strong legal institutions and rights traditions can and do abuse the human rights of their citizens. They can do so with perfect legality, as the conditions of many of the prisons in Western societies make plain. No law is actually broken when a prisoner is kept in solitary confinement for excessive periods of time, or when he is treated with contempt by prison guards. Yet his human rights are violated by these acts. The justification for this legal but unjust treatment is that those who commit crimes forfeit the right to be treated with decency. This is a simple mistake — the penalties of the law prescribe only the loss of certain rights, not the loss of all — but it is a mistake deeply anchored in retributive instinct, and hundreds of years of rights traditions have done little to correct it in the minds of the public. The idea of human rights incarnates the contrary proposition: that no matter what a person has done, he cannot forfeit his right to decent treatment.

  Western societies have done a poor job living up to this injunction. It should be a matter of shame, for example, that from the late 1930s to the 1970s, thousands of people were forcibly sterilized and sometimes even lobotomized in state institutions for the mentally handicapped in this country and many others. It was all done in their best interests, of course, by doctors who told themselves the dangerous fable that their intentions were above all possible reproach. In Alberta and several other Canadian and American jurisdictions, as well as in Scandinavia, young women who were labelled “sub-normal,” and therefore deemed incapable of responsible parenting, were sterilized without their consent on the basis of eugenics legislation passed with the enthusiastic endorsement of the medical community.9

  One of the essential functions of human-rights legislation is to protect human beings from the therapeutic good intentions of others. It does so by mandating an obligation to respect human agency — however expressed, however limited — and to desist from any actions, even those that are intended to help, if these agents refuse or in any other way give signs of a contrary will. (For to be human is to have a will, however constrained, limited, or fallible.) To be sure, keeping to this rule is hard, but the test of human respect always lies with the hard cases — the babbling, incontinent inhabitant of a psychiatric ward or a nursing home; the prisoner who has shown no respect for others and now asks for respect from us; the uncontrollable adolescent whose behaviour seems to cry out for coercive restraint. To give these human beings the benefit of informed consent, the rule of law, and such autonomy as they can exercise without harm to others is the proof that we actually believe in human rights.

  Yet human rights alone are not enough. In extreme situations, we need extra resources, especially humour, compassion, and self-control. These virtues in turn must draw on a deep sense of human indivisibility, a recognition of us in them and them in us, that rights doctrines express but in themselves have no power to instil in the human heart.

  In this sense, that old reactionary, Joseph de Maistre, was wrong. We have met Man. He is us. Human rights derive their force in our conscience from this sense that we belong to one species, and that we recognize ourselves in every single human being we meet. So to recognize and respect a stranger is to recognize and respect ourselves. As paradoxical as it may sound, having an intense sense of one’s own worth is a precondition for recognizing the worth of others.

  On the other hand, recognizing other people as human is not easy. Sometimes the humans in question may be violent, gross, abusive, crazy, or just so plain different in language, values, and culture that it is genuinely hard to see what we do have in common.

  Let us also admit that there is nothing especially natural about this kind of human recognition, about the feeling that the human species is one. Historically speaking, this idea, the work of monotheistic religions and natural law, is a rather recent addition to the moral vocabulary of humankind. This universalism has had to make its way into our hearts against a much more intuitively obvious notion: that the only people we should care about are people like us.

  In Bleak House, Charles Dickens left us an immortal satire of the good philanthropic lady of mid-nineteenth-century England, Mrs. Jellyby, who never stopped campaigning for the welfare of children in Africa. Her face had the faraway look of someone always focused on distant wrongs. Dickens’s problem with this charitable lady, of course, was that she shamefully neglected her own children.10 We all know people who combine high-flown commitment to human rights with lowdown disregard for all the actual human beings who stand in their way. It seems obvious that charity, not to mention decency, begins at home, and that we have good reason to put our primary moral emphasis on particular duties to those nearest us.

  Yet our commitments are connected — ever-widening circles that begin with those who are close to us and move outwards to embrace the needs of strangers. Human-rights commitments are on the outermost arc of our obligations, but they can be only as strong as our innermost commitments. Believing fiercely in the value of those we love is the very condition for believing in the value of those farthest away. Universal beliefs that do not draw their fire from the passion for particular people are not going to stay alight for long.

  To say this is to commit ourselves to a special way of thinking about the relationship between human equality and human difference. In this way of thinking, human equality actually manifests itself in our differences. What we have in common as human beings is the very way we differentiate ourselves — as peoples, as communities, and as individuals. So it is not the naked body we share in common, but the astoundingly different ways in which we decorate, adorn, perfume, and costume our bodies in order to proclaim our identities as men, women, members of this tribe or that community11.

  To be forced to strip naked before a cold-eyed stranger is a terrible experience. Human beings clothed, arrayed, disguised even, are the ones who have dignity, not human beings stripped and bare, hiding their shame with their hands. To be naked before a stranger is to be deprived of decency and also of agency. Of course, nak
edness can awaken pity, and this is a very basic form of human recognition, but it is also the most vulnerable form, for it implies the weakness and fragility of one party. We know from historical experience that when persons depend for their lives on the pity of others, they are uniquely defenceless.

  In the destruction of European Jewry in the Holocaust, one of the essential techniques of dehumanization was to strip everyone of their possessions, their clothing, their glasses, even their hair. A concentration camp could be seen as a demonic machine whose purpose was to take historical individuals in all their particularity and pound them on the anvil of suffering into pure units of humanity. When these pure units of humanity then appealed to the pity of their captors, they discovered that their captors regarded them as so much meat. When those responsible for this crime had reduced each individual to the terrible equality of nakedness, they could do anything to their victims that they wished. In such a state of equal and radical humiliation, victims would even go unresistingly to their own deaths.

  Not all went unresistingly, of course, and those who survived best were those who held on, against all the odds, to such fragments of personality, faith, humour, or intransigence that distinguished them from the horrible equality of all the others. This is not to say that this tenacious insistence on difference alienated them from the rest. Rather, it was by holding on to their individuality that people pulverized by suffering could acknowledge others, care for them, and resist together as best they could.12

  The function of human rights, then, is not to protect the abstract human identity of nakedness, or to express in juridical language our instincts of pity for denuded human suffering. Its function is to protect real men and women in all their history, language, and culture, in all their incorrigible and irreducible difference. The purpose of human rights is not to make those in danger the wards of conscience of those in zones of safety, but to protect, defend, and restore the agency of the defenceless so that they can defend themselves.13