From Civil Liberties to Human Rights: Acknowledging the Differences

FROM CIVIL LIBERTIES TO HUMAN RIGHTS:

ACKNOWLEDGING THE DIFFERENCES[229]

Rosalie Silberman Abella(1)


(1) Ontario Law Reform Commision.

Human rights has achieved political maturity of expression, but its implementation remains in adolescence. While it is true that in this generation we have seen laws passed, barriers removed, and rights entrenched, the process is neither complete nor irreversible.

Human rights osabout faimess and fair is what we all want to be. But what is fair to an Anglophone may not be a black female; what is fair to an atheist may not be to a 7th. Day Adventist; and what is fair to any of them may not be fair to someone who is a disabled or aboriginal person. Each clamours for tolerance, each represents thousands more, each invokes the rhetoric of human rights, and each grows increasingly frustrated. The social contract comes under magnified scrutiny and the lens grow opaque, clouded by the terpsichorean movement of other issues competing for global policy attention, leaving human rights too often as a perpetual runner-up in a race it should be umpiring.

How then to find solidarity in the tangled web of remedial pleas? How then to so define the issue that the web weaves a whole cloth rather than the tatters of good intentions?

The common ground is empathy. As more and more of us approach, and even achieve respectable levels of security, more and more of us should be looking over our shoulders to see whom we have left behind and why. And we should be looking through their eyes, because discrimination, whose erradication is the object of human rights, is in the eyes of the disadvantaged beholder.

While it's true that the plateaus are getting crowded, and that there will always appear to be less room than comfort suggests, we must all be reminded that our own comfort is fragile ifthe levels below us are at least as crowded. I am one of those who believe that absolute fairness, or equality, or peace, or absolute anything, is likely unattainable. But that does not mean that they are not worth pursuing. The fewer we have in our midst who feel a sense of arbitraty exclusion, the closer we are to civility. The quest is in the reduction of unfairness, and the way to achieve it is to strive towards the seemingly unattainable absolute of fairness, to make room for others, and even to facilitate their ascension to levels above our own. If the footpaths are strewn with victims of insensitivity, they will repay us. If on the other hand the path is clear, and heterogeneous, and optimistically travelled, those we promote will lead us in turn with enlightenment. It's called generosity. There are thousands lined up around the block who have paid their admission and cannot understand why they are not being allowed into the theatre.

It is trite to observe that indifference breeds indifference, but it is less trite to experience its costs. We cannot afford it is only one side of a ledger, and it melts before the undisputable morality on the other side of the ledger that says we cannot afford not to. Cost/benefit analyses suffer, as do many people, from being more easily amenable to demonstrating dispassionate costs than ineffable benefits.

We are, I fear, at a social crossroads in our efforts to retain the fairness we prize ourselves on expousing, aud without aggressive attention, we could easily allow the gains and goals to atrophy, overwhelmed by confusion and overtaken by false confidence.

Leaving aside for a moment the argument that centres on the inherent justice of promoting a genuinely egalitarian society, there is a less metaphysical inspiration, and that is the cost of neglect. Not merely the economic cost, but the cost to democratic values themselves. History is full of countless examples of the social upheavals generated when the disadvantgaged can no longer be placated or mollified. Not for long can any democracy suppress the legitimate aspirations of those who no longer tolerate or understand their exclusion. And so we can either scramble to keep the lid on, or we can spend the same energy to figure out what causes the pot to boil and what we can do to turn down the heat. The first approach suggests complacent impatience; the second suggests visionary realism. We can either reverse exclusion, or wait to be reversed. How then to protect the gains and promote the values?

We could do worse than starting with education. We are as wise as what we know. By that I do not mean to define knowledge as merely the accumulation of facts which can be regurgitated when appropriate. I mean by knowledge a compendium of sensibilities, informed by facts, by sensitivity, by curiosity, and by experience. We are not omniscient and cannot know or experience all things, but we can be taught what questions to ask. The answer to any question of human behaviour is probably It depends. Understanding what it depends on, is a function of what variables we are prepared to consider determinative. The ultimate question in human rights is Is it fair? The answer may well be It depends, but on what will we place rehiance in deciding the solution? That depends on what we know.

Do people know that many have been arbitrarily excluded from the economic, social aud political mainstream? Do they know why? Do they care? They cannot care unless they are taught that there is a problem, that it has victims, and that they have a stake in its resolution. Have they been trained to probe, to challenge, and above all, to empathize? Do they see education as a hifetime pursuit, or is it the mere acquisition of documentary proof that a standard of quallification has been achieved? Do they appreciate the vulnerability of young minds to insidious nuance, or do they judge educators by their simple capacity to transfer facts? Does the media ascribe to the public a thirst for intelligent analysis, or does it cater to a perceived howest common denomination of intellect?

In other words, is education an exhortation to be our best selves, or is it just one in the taxonomy of public entitlements we wish to discharge with moderate competency. With all due respect to transportation, fiscal policy, the environment, or any of the other indispensable amenities we have come to presume to be part of the House of Good Governance, the teaching of tolerance -the essence of a good education - is the foundation whose solid structure is the best defense against the hurricane winds of regressive ideologies.

Without a thoughtful public, the House will be a hotel for transients, alternating members of the public welcomed from time to time by expediency, none of whom can claim ownership, or even its possibility, with any certainty. We must have a clear sense of who we are and where we want to go, and we cannot do it unless we are grounded in education, fortified by knowledge, and protected by wisdom. If we don't know who and what we are, how can we possibly make the changes fairness demands?

Human rights is after all about change. It is about new membership to old clubs and it is sometimes about changing the club.

I accept that change is difficult, that it is easier to enunciate the need to accommodate others than it is to do it. It may well be that so many resist the expanded tolerance and access human rights preaches because we are all fearful of change and of the introduction of people or issues whose claim may be meritorious, but whose impact is uncertain. And while it may be an understandable explanation for tentative reluctance, it cannot be a legitimate excuse for ultimate inaction, or for the kind of fear that allocates entitlement or lays exclusive claim to pieces of the social pie.

Everyone is entitled to fair eccess to the whole pie. If the pie is not big enough, efforts must be made towards expanding it. If it is not nourishing enough, efforts must be made to change the recipe that has been handled down from generation to generation. Neither the merit principle, the economy, nor productivity are jeopardized by an opening of the minds and systems of any country to a pluralistic competition. All three are in fact enhanced. We all lose by denying options to those who would contribute, a loss outrageous in principle, unforgivable in context, and cowardly in retrospect.

Unless the issue of human rights Is defined as a social partnership, we risk the poignant spectacle of disadvantaged groups competing with one another for primacy, arguing the urgency of their disadvantage over and even within each other's groups, when there need be no competition between them at all.

Here many issues converge and require explanation. The first is to understand that when one group is disadvantaged, all are in peril. A society, for example, that permits discrimination on the grounds of sexual orientation is a society that permits discrimination. Period. And if it exists for any, it is capable of existing for many. The groups who find themselves disadvantaged by discrimination are inter-dependent in their mutual needs for tolerance. The idea of a pecking order among or within disadvantaged groups is neither productive nor acceptable when each shares the burden of arbitrary economic, social and political disadvantage. The emphasis must be on pohicy strategies that seek to eliminate discrimination wholesale, not one group at a time. Different groups require different approaches, I agree, but all of them must be designated beneficiaries of the assault on intolerance.

This does not mean, however, that all desadvantage is a human rights issue. I think it is time to acknowledge boldly that while the Charter of Rights and Freedoms has had the positive impact of constitutionalizing the rights we always thought we had, it has nonetheless also generated a rights frenzy that seeks to put every claim of right on the same moral plateau. The rights to smoke or to keep pets in an apartment are not human rights issues, and we need apologize to no one for asserting that not all...

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