Keywords Philosophy

The opposite of rights is not wrongs but duties or obligations. If one has a right, then one has no obligation; if an obligation, then no right. Our obligations prescribe what is morally right; our rights permit us to do or not to do what is morally right. Rights presuppose the right to do wrong, the choice of morally attractive or repellent uses of one's property or power. No contradiction is entailed in supporting the right of national self-determination, while holding that secession is politically disastrous.

Human rights are claims or entitlements that belong to human beings by virtue of their humanity, not by virtue of participation in a specific tradition or historical practice. Claims of human rights are characteristically indifferent to the historical genesis of specific rights in concrete struggles of particular classes, nations and religions, and the historical justification of special rights in limiting violent conflict. This unhistorical approach to human rights was popularized by John Rawls's A Theory of Justice (1971). Canadian history, not an abstract principle of fairness, might justify provincial funding of Catholic, but not Jewish, Islamic or Baptist, education; hunting and fishing rights for native Canadians, but not white settlers; linguistic rights for French, but not Ukrainian or Chinese, Canadians.

The function of rights for the framers of the American constitution and the authors of The Federalist Papers was to limit the power of Congress and state legislatures, to prevent them infringing the rights of individuals, particularly the rights of property and contract. Rights functioned, and continue to function, to inhibit elected representatives from imposing the will of a majority upon minorities and individuals, or from embarking on social policies that jeopardize private and corporate property, and the right to contract and trade freely. Critics of a rights-based politics think the language of human rights is an ideology of capitalism that impedes states from limiting the sway of the global market. Further, critics of entrenched rights and the judicial review of legislation point to the judicialization of politics and the politicization of the judiciary.

The tension between the British tradition of parliamentary supremacy and the American tradition of constitutionally entrenched rights was manifest in the CANADIAN CHARTER OF RIGHTS AND FREEDOMS, of which sections 32 and 33 enable legislatures to enact laws "notwithstanding" the provisions of the Charter. The Americanization of Canadian political culture is evident in the fact that English Canadians hate the notwithstanding clause, as well as the only part of the Charter that mattered to Pierre Elliott TRUDEAU, namely, the linguistic rights that would remove the "special status" of Québec. Successive governments of Québec have not accepted the Charter, because they have been unwilling to accept federally appointed judges curtailing the powers of the Québec national assembly. English Canadians have been unwilling to accept the amendments to the Charter proposed in the MEECH LAKE ACCORD and CHARLOTTETOWN ACCORD. Thus the comity of Francophone and Anglophone Canadians has been shattered, despite the near universal commitment of all Canadians to the rhetoric of human rights, and their constitutional entrenchment.

George GRANT wrote that what distinguished Canadians from Americans, and conservatives and socialists from liberals, was the recognition of collective as well as individual rights. Will Kymlicka comes closer than American liberals to recognizing rights of communities but insists that communities, in attempting to preserve their distinctive identities, have no right to limit individual rights. Since individual rights trump collective rights, the self-determination of First Nations and Québécois must be subject to courts adjudicating the security of individual rights. Perhaps the language of rights is inherently individualist, and nationalists would do better to refer to common goods, collective interests or communal purposes rather than force the individualist language of rights into collective projects.

To be sceptical about the meaning of human rights does not mean that one is indifferent to murder, torture and rape, or that one does not support Amnesty International in publicizing the plight of political prisoners around the world. On the contrary, one might argue that to refer to rape as a deliberate weapon of war merely as a human rights violation is to understate grossly the atrocity, to reduce it to a mere instance of a general category of a human rights abuse, or to a standardized move in a diplomatic chess game. Perhaps human conduct would be better served by concentrating on specific rights - say, of refugees - located in a particular situation and generated by actual struggles, rather than claiming human rights, abstracted from specific content and historical context.

Author EDWARD ANDREW

Links to Other Sites
Centre for Constitutional Studies
The official site of the Centre for Constitutional Studies at the University of Alberta. The Centre was founded to encourage and facilitate the interdisciplinary study of constitutional matters both nationally and internationally.

Internet Encyclopedia of Philosophy
A comprehensive reference source about philosophy. Most of the articles in The Internet Encyclopedia of Philosophy are original contributions by specialized philosophers around the Internet.

Universal Declaration of Human Rights
An interactive online exhibit that features a gallery of rare photos, sound clips, articles, and documents related to the Universal Declaration of Human Rights, which was adopted by the United Nations in 1948. See also the multimedia profile of the distinguished Canadian diplomat John Peters Humphrey, who was instrumental in the creation of this landmark document. From the Canadian Museum for Human Rights.

The Canadian Institute for the Administration of Justice
A voluntary, non-profit organization involved in research and educational programs that advance the administration of justice in Canada.

Human Rights Watch
Human Rights Watch is an independent, nongovernmental organization, that is dedicated to protecting the human rights of people around the world.

Universal Declaration of Human Rights
View a digitized copy of the first page of the third draft of the Universal Declaration of Human Rights, showing John Peters Humphrey's annotations. From the "Tolerance.ca" website.

The Universal Declaration of Human Rights: Origins, Drafting, and Intent
View excerpts from Johannes Morsink's book "The Universal Declaration of Human Rights: Origins, Drafting, and Intent." From Google Books.