The Rights Revolution (5 page)

Nor is it the function of rights to promote a particular political philosophy. It is beside the point to say, for example, that recent rights decisions by our Supreme Court aren’t progressive enough. Rights aren’t intrinsically in the service of either progressive causes or conservative ones. They’re just there to keep our arguments orderly.
Rights make explicit the rival claims that must be adjudicated if a society is to be just. And to the degree that rights are procedural — the right to due process of law, for example — they also lay down the rules societies need to observe to prevent rights conflicts from turning violent.

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.
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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
.
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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.
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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 protect 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,
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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.
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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.
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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.
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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.