Untrenching Fundamental Rights
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Untrenching Fundamental Rights Robert A. Samek* Synopsis Introduction I. Anarchical Fallacies II. Is Human Rights Legislation Effective? III. The Canadian Charter of Rights and Freedoms IV. What are Fundamental Rights? V. Hart's Concept of Natural Rights VI. Self-regarding Acts and the Inner Sphere of Life VII. Conklin's Theory of Fundamental Rights Conclusion Introduction Marx's celebrated XI Thesis on Feuerbach' is singularly pertinent to the topic of fundamental rights. "The philosophers", we may say, "have only interpreted man's rights in several ways; the point, however, is to change them." This cannot be done by entrenching them in a charter of rights, but only by "untrenching" them from their ideological base. Social evils cannot be cured by a stroke of the legislative pen. To make the ink indelible does not change anything; on the contrary, it merely distracts the eye. No legal entrenchment of fundamental rights can entrench them in a society which does not practise what it preaches. There is no constitutional bridge which can span that chasm. It is important to distinguish between two meanings of "ideology". According to the first, it denotes what Marxists have described as the "false consciousness" of the superstructure of a social system or theory. According to the second, it stands for the basic ideas which lie at the foundation of a way of life, without any judgment as to their objective * Of the Faculty of Law, Dalhousie University. 1K. Marx, "Theses on Feuerbach" (1845) in Karl Marx [;] Frederick Engels [:] Collected Works (1976), vol. 5, 8, para. 11. McGILL LAW JOURNAL [Vol. 27 validity.2 Although the idea of "false consciousness" suggests that we can find its true counterpart by penetrating the superstructure, we can say that something is false without claiming to know the true state of affairs if we believe that it is not what it is represented to be. We can speak of "false consciousness" to indicate that the superstructure of a social "false consciousness" to indicate that the superstructure of a social system or theory is out of line with the reality of its foundation. We can do this without explaining, with reference to some absolute standard of truth, what the true foundation of the society or theory is, and how it came about that the superstructure was distorted. I shall use "ideology" here in this sense. Judging by the media, there was for a long time no more contro- versial issue in Canada than the federal government's proposals to patriate the constitution and to entrench a charter of rights. This fact is itself more revealing than the heated debates which have raged over it. Was the issue really one that deserved so much media exposure, and so much venom and expense? Will the new constitution really turn Canada into something fundamentally different from what it was before? Are we going to pass from a "state of nature" into a state of grace where we will live like brothers and sisters practising the Golden Rule? Or are we not merely going to pass from one stage ofjargon to another without changing the real rules of the game? It is the jargon of the debate that should put us on our guard. A reform that is wrapped in familiar cliches is not likely to lead us into the promised land. The human rights record of the government that introduced the Canadian Charter of Rights and Freedoms4 with such fanfare is hardly impressive. The Bible teaches us to judge a tree by its fruit, but the converse is also true. When we are promised certain fruit, we must look at the tree. Our political orchardists carefully rake the fallen fruit into the ground, and divert our attention to the blessings to come. The great political divisions of the past have produced few edible fruit. It is therefore a fairly safe bet that the new Charter will make little difference to the average Canadian. The lot of the majority is not going to be changed, for the Charteris not concerned with their bread and butter rights. In the great liberal tradition, economic rights do not generally 2R. Samek, The Meta Phenomenon (1981), 146. See also R. Kinsey, Marxism and the Law (1978) 5 Brit. J. of L. and Soc. 202, and M. Tigar & M. Levy, Law and the Rise of Capitalism (1977). 3Samek, Justice as Ideology: Another Look at Rawls (1981) 59 Can. Bar Rev. 787, 787-8. 4 Canada Act, 1982, Schedule B, The Constitution Act, 1982, Part 1, The Canadian Charter of Rights and Freedoms. 19821 UNTRENCHING FUNDAMENTAL RIGHTS qualify for inclusion in a political charter lest they contaminate the purity of its doctrine with everyday problems. My aim in this article is not to discredit the cause of human rights. On the contrary, I want to save it from being reduced to a formula. The effectiveness of any legal reform must be determined by its utility for bringing about social change. The merits of the Charter, if any, must be sought outside its purely legal effect, in the world of social reality. By the same token, the mere threat of legal sanction cannot provide a sufficient basis for social reform. It may give a helping hand when the time is ripe, but it cannot by itself bring about social change or protect it from a backlash. I. Anarchical Fallacies The support that is buoying at the beginning of a movement can be cloying at its end. The embodiment in a sacred script of the dynamic values that promote the birth of a paradigm sets the stage for their decline. Once the document ceases to be a means and becomes an end, the impetus for change is lost. It was the force of the convictions behind the French Declarationof the Rights of Man and of the Citizen in 1789, not the document itself, that produced the progress achieved. Just as we must not judge its provisions cynically with the benefit of hindsight, so we must not put our faith in the magic of the text. Nearly two hundred years have elapsed since this Declaration lifted the hearts of men, and in the interval a great deal has happened to lessen our expectations from its pronouncements. Even then, however, there were already many doubters whose scepticism was expressed in the following biting passage of Jeremy Bentham: Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical non- sense, - nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense: for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can upon any occasion whatever, abrogate the smallest particle.' So much for "terrorist" language. Bentham contrasts this with the language of reason and good sense according to which specific rights should be established, maintained and abrogated on the basis of what is advantageous to the society in question. In order to determine what would be advantageous, the circumstances of the proposals must be set out and the rights themselves must be specifically described: One thing, in the midst of all this confusion, is but too plain. They know not of what they are talking under the name of natural rights, and yet they would have them 5J. Bentham, "Anarchical Fallacies" in A. Meldon, Human Rights (1970), 32. REVUE DE DROIT DE McGILL [Vol. 27 imprescriptible - proof against all the power of the laws - pregnant with occasions summoning the members of the community to rise up in resistance against the laws. What, then, was their object in declaring the existence of imprescriptible rights, and without specifying a single one by any such mark as it could be known by? This and no other - to excite and keep up a spirit of resistance to all laws - a spirit of insurrection against all governments - against the government of their own nation - against the government they themselves were pretending to establish - even that, as soon as their own reign should be at an end. In us is the perfection of virtue and wisdom: in all mankind besides, the extremity of wickedness and folly. Our will shall consequently reign without control, and for ever: reign now we are living - reign 6 after we are dead. Bentham rails not only against the utter vagueness of these so-called natural rights, but also against the conceit of those who seek to entrench them for all time, and he deplores their invitation to anarchy. The origin of government in a contract, he declares, is a pure fiction which is neither necessary nor useful. According to Bentham, all governments have been gradually established by habit after having been formed by force. Their origin is of no account. What matters is how conducive they are to the happiness of society. Contracts come from government, not government from contracts. Bentham then turns his sarcasm on "these imprescriptible as well as natural rights" - liberty, property, security and resistance to oppression - which are enumerated in art. 2 of the Declaration.All these rights, he mocks, are "unbounded". To say that nature gave each man a right to everything is merely another way of saying that it has not given him anything, for what is every man's right is no man's right: Nature gave every man a right to everything before the existence of laws, and in default of laws. This nominal universality and real nonentity of right, set up provisionally by nature in default of laws, the French oracle lays hold of, and perpetuates it under the law and in spite of laws.