The Rights Revolution (2 page)

In other words, rights have a double-sided relationship to democracy. Rights enacted into law by democratically elected representatives express the will of the people. But there are also rights whose purpose is to protect people from that will, to set limits on what majorities can do. Human rights and constitutionally guaranteed rights are supposed to have a special immunity from restriction by the majority. This allows them to act as a bulwark for the freedom of the vulnerable. So the rights revolution has a double aspect: it has been about both enhancing our right to be equal and protecting our right to be different. Trying to do both — that is, enhancing equality while safeguarding difference — is the essential challenge of the rights revolution, and this is what I want to explore with you in these lectures.

Rights are something more than dry, legalistic phrases. Because they represent our attempt to give legal meaning to the values we care most about – dignity, equality, and respect – rights have worked their way deep inside our psyches. Rights are not just instruments of the law, they are expressions of our moral identity as a people. When we see justice done – for example, when an unjustly imprisoned person walks free, when a person long crushed by oppression stands up and demands her right to be heard – we feel a deep emotion rise within us. That emotion is the longing to live in a fair world. Rights may be precise, legalistic, and dry, but they are the chief means by which human beings express this longing.

It’s important to understand that this longing is a global phenomenon. One of the reasons rights talk seems irresistible in Canada is that wherever we look beyond our borders, people are fighting for their rights. From 1948’s Universal Declaration of Human Rights onward, the history of the past half-century has been the struggle of colonial peoples for their freedom, the struggle of minorities of colour and women for full civil rights, and the struggle of aboriginal peoples to achieve self-government. Some of these struggles are etched in my memory. I remember the television pictures of that small crowd of protesters who crossed Edmund Pettus Bridge in Selma, Alabama, on their way to Montgomery to demand the right of black people to vote in the American South. I remember the men of Attica prison, in upstate New York, who staged an uprising to protest their living conditions. The state police and national guard took the prison by force and forty-three prisoners died. Before the final assault, one of the prisoners said: “We have resolved, after long and bitter experience, that if we cannot live like men, then we are prepared to die like men.”
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From these examples, I learned that human beings value some things more than their own survival, and that rights are the language in which they commonly express the values they are willing to die for.

Struggles in Europe during the 1970s and 1980s also helped to shape Canadian awareness that the rights revolution was truly global. The campaigns by Solidarity in Poland, led by that extraordinary shipyard electrician, Lech Walesa, created the first free trade unions in the
Communist world. In Czechoslovakia, Charter 77, a movement led by writers and playwrights such as Vaclav Havel, demanded civil and political rights for Eastern Europeans. Finally, there were the campaigns on behalf of Soviet Jewry, in which members of the Canadian Jewish community took a prominent part. In 1990, I vividly remember travelling from Kiev, in Ukraine, to Vienna with a trainload of Soviet Jews on their way to Israel. They were frightened, bewildered, and sat up all night asking me questions about Israel, a country I had visited only once. They did not know where they were going, but they knew exactly what they were leaving: a land where even the humblest freedoms were beyond their reach. All of these battles for rights inside the Communist bloc had a huge political impact on the shape of our times. For the demand for rights was a demand to live in truth; to end the regime of lies; to live, finally, without fear and shame. What began as a campaign for rights within the Communist system ended up destroying the system altogether. When the Berlin Wall was pulled down in those unforgettable days in November 1989, the rights revolution changed history.

None of these victories came easily. The rights revolution is a story of struggle. Indeed, the concept of rights comes from the struggles of the male landholders of England and France to throw off the tyranny of barons and kings and establish rights of property and due process of law. But one of the ironies about rights is that people who win theirs don’t necessarily want anyone else to have them. What dead white males fought for, they then
denied to everyone who came after — women, blacks, working people. Nothing is less obvious than the idea that rights commit us to equality. Men who had enjoyed voting and property rights for centuries, for example, couldn’t conceive that women should have them too, and they displayed astonishing ingenuity in denying claims that now seem self-evident. Likewise, union rights to closed shops and collective bargaining used to be regarded as a dastardly infringement on the freedom of individual workers and employers alike. This illustrates an ironic lesson: there is no more effective way to deny the rights of others than to claim that they are denying your own. The battle for union rights had to expose and defeat these claims. Workers did so by standing out in the cold in front of plant gates, and holding up placards and signs demanding the right to unionize their factories. It took from 1880 to about 1945 for North American workers to prove that collective union rights are the only effective way to counter the disproportionate economic power of employers.

History shows that there is nothing secure and unassailable about our rights heritage. At this very moment, some clever official in Ottawa, Washington, or London is devising an ingenious way to abridge our right to communicate freely on the Internet. In Britain, a Labour government — a Labour government! — is considering a bill to allow the police to monitor Internet communications. It may be a cliché, but some clichés are deeply true: the price of freedom is eternal vigilance.

Thanks to these struggles — many of them won only
in the last generation — Western liberal societies have arrived at a new moment in their history. For the first time, they are trying to make democracy work on conditions of total inclusion. Everybody has the same rights, and everybody has the right to be heard. Democracy is supposed to belong to everyone. No wonder Western elites have worried since the 1960s that our societies are becoming ungovernable. What they mean, of course, is that we citizens are less obedient, less willing to leave politics to them. The rights revolution makes society harder to control, more unruly, more contentious. This is because rights equality makes society more inclusive, and rights protection constrains government power. Countries with strongly defended rights cultures are certainly hard to govern. But who says the ways of democracy must run smooth? Democracy is rough and tumble; conflict is built into the process, but provided the conflict stops short of violence, it is better than bland or managed consensus. To paraphrase Bette Davis, fasten your seat belts, because the rights revolution makes for a bumpy ride.

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.
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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.
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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.
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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.
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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
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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.
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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.