Human Rights: The Heart of Justice
By Rosalie Silberman Abella
What I think unites us as lawyers is that we are governed by the rule of law, which means that we are united in our duty to serve the public's aspirations for justice. The essence of justice is rights, especially human rights, and the essence of human rights is social justice, which represents the true meaning of equality.
This is a subject about which the public has many opinions. There is a story about the eminent New York intellectual couple Diana and Lionel Trilling. Someone asked a friend of theirs if they had a view of the river in their apartment near Columbia University. "Of course," came the reply, "the Trillings have a view about everything." As does the public about rights.
Different people see different things in them and approach them in different ways: some with devoted passion, some with passionate antipathy, and some with benign curiosity. The decision to acquire rights was made a long time ago in America, but the concept has undergone many metamorphoses over the years and resulted in constant debate about how wise an acquisition we had made. In particular, we have added human rights to the civil rights we started with, causing some confusion, but, on the other hand, creating opportunities and hope we had not before been able to accommodate.
This article will examine the reasons why I believe the passion for rights has become sclerotic, and why the attenuation of that passion needs to be confronted and redressed.
A couple of years ago, an article appeared in the Sunday New York
Times Magazine written by A. Leon Higginbotham, Jr., the brilliant African American lawyer, judge, and professor, a few months before his death. He wrote about how proud he felt fifty years ago watching Thurgood Marshall argue before the U.S. Supreme Court, successfully as it turned out, for the right of African Americans to be admitted to an all-white law school. Less than half a century later, the judicial beneficence of this ruling had turned into the misanthropic jurisprudence that ended affirmative action measures in Texas and California law schools. The result was that in 1999, out of a total of 736 first year law students at Berkeley and the University of Texas, only five were African American. Higginbotham cited these statistics, lamenting: "I sometimes feel as if I am watching justice die."Somewhere along the way, the rights parade ended a lot sooner for this generation than the marchers hoped, a casualty of thinning crowds and unpopular floats. Why? I'd like to offer a couple of theories by taking you on a human rights journey over the past several decades, starting with the decade that brought us the horrors of the Holocaust and the world's response in the Universal Declaration of Human Rights.
The Forties
In the Forties, the world and North America experienced and survived cataclysmic war. A nuclear bomb was dropped, ushering in the Generation of Fear; six million Jewish lives and the lives of many others of non-Jewish descent were extinguished and destroyed during the holocaust; the public danced, swooned, and fantasized to Duke Ellington, Benny Goodman, Frank Sinatra, Kate Smith, and Harold Arlen; people read The New Yorker, listened to Churchill, and talked about Eleanor Roosevelt; Japanese Americans were disenfranchised and dislodged. We learned or redefined the words genocide, nuclear age, war criminal, refugee, communism, and fascism. Justice and morality were vindicated through War Crimes Tribunals, but where was human rights?
It was lurking. It was lurking behind the interned Japanese Americans, the Jewish refugees denied entry into our countries, the impoverished blacks, the ignored disabled, and the women's movement that after the war entered twenty years of relative quiescence.
The first half of the decade was spent waging war, the second half recovering from it. There was little energy or political will left to undergo the kind of introspection that would have disclosed the remaining inequities. It was a war that left the world tired, angry, and vengeful, a world that saw human rights as the equal right to recuperate.
The Fifties
If ever we have experienced a period of innocent banality, the decade of the Fifties comes closest to claiming the title. It was a time of restoration-of Dwight Eisenhower's benign demeanor and
governing, of waves of new immigration, of economic growth, and of hope. Undaunted by the menacing semantics of John Foster Dulles, the Cold War, the spectacle of Joseph McCarthy's insufferably arrogant witchhunt and his legacy of human devastation, and the absence of minorities and women from the institutions and watering holes of power, we settled into peace with vigor and set about rebuilding its traditions and families with single-minded perseverance. It was a ten-year sigh of relief that fostered and prized predictability and discouraged change. The public still read The New Yorker but had added to its cultural repertoire Ralph Ellison, Bill Haley and the Comets, I Love Lucy, Sid Caeser, Harry Belafonte, Norman Mailer, and Elvis Presley.And where was human rights during these noninterventionist and non-intervenable years? It was poking its nose out behind the curtain of calm contentment, where it had been working out to prepare for its role on the stage of the Sixties. It ventured not very far in the Fifties, not because its constituents were any less disadvantaged, but because in the Fifties human rights meant treating everyone the same-an unpalatable placebo to those who needed more, but an intractable one for those who had or felt they could get enough. And so it contented itself with one stunning court decision-Brown v. Board of Education-and rehearsed its lines for its more visible role in the next decade.
The Sixties
Human rights in the Sixties played Conscience. We awoke from the somnolence of the Fifties with a trajectory of energy. We welcomed the exuberance and youth of John Kennedy, who made all things seem possible; watched in trauma night after night as McLuhan's Global Village invaded our living rooms, unfolding the horrors of Vietnam; agitated over Lyndon Johnson; stirred to the eloquence of Martin Luther King; and cringed at the vitriol of the Black Panthers. We demonstrated, rebelled, brooded, spawned flower children, and questioned basic assumptions. People smoked their way into tranquility, burned down urban ghettos, occupied universities, put a man on the moon, and assassinated leaders. We listened and gyrated to the Beatles, Rolling Stones, Mamas and Papas, Bob Dylan, and Chubby Checker. We shifted cinematic focus to Jane Fonda, Sam Peckinpah, and Ingmar Bergman. The big musical was Hair. We howled with Alan Ginzberg and deadpanned with Andy Warhol. We were existential, Jungian, Freudian, nihilist, primal, and "in touch with our feelings." We learned our buzzwords from Tom Wolfe, Khalil Gibran, James Baldwin, Arthur Schlesinger, Sartre, de Beauvoir, Camus, and Jack Kerouac. We still read The New Yorker, but we didn't admit it.
And where was human rights? It was everywhere. It was in the ponytails and flowers that men wore, it was at the Washington Monument, it was at teach-ins and sit-ins, and it was on the psychiatric couches of the nations. It was incendiary in Watts, it was explosive at Kent State, and it was gentle in Haight-Ashbury. This was our most turbulent decade, our confrontation with introspection and tradition. In this decade, we set in motion a revised timetable and agenda and confused ourselves utterly.
But out of the turbulence and confusion came the Civil Rights Act, affirmative action, and an awakened consciousness. It was not an easy time, but it was a necessary catharsis. It reminded us that nothing and no one is certain and provided a rigorous training course in human relations. We were made to pay attention to our children, blacks, women, our values, and our insensitivities. Human rights as prodding conscience played its part trenchantly and poignantly, and we were never the same again.
The Seventies
Just as the Sixties hosted breathtaking and seemingly uncontrollable activity, the Seventies hosted debate. We started the debate with Watergate. We learned from Spiro Agnew, Haldemann, Ehrlichman, and Sam Ervin that democracy was an unquenchable public thirst, that presidents dissemble and resign, that the public demands no less respect from the law than it gives. It was the flowering of the media, visual and print, and confirmed once and for all that good investigative journalism and television could be handmaidens to democracy. We witnessed a turning point in terrorism with the Munich Olympics massacre and felt our economies held ransom by oil and O.P.E.C. In assessing our fallibilities, we held forums on ecology, nuclear disarmament, communications, women, pollution, resource development, technology, and the law of the sea. We were intrigued when Jane Fonda's then-husband ran for the U.S. Senate and Richard Nixon ran for cover. We reveled in the partnership of Paul Newman and Robert Redford, the seductive insolence of Saturday Night Live and Burt Reynolds, the irony of Jack Nicholson, and the bravado of Francis Ford Coppola. We were starting to admit that we were reading The New Yorker but for credibility added John Updike, Saul Bellow, Maya Angelou, Margaret Atwood, the New Republic, Ms. Magazine, and Esquire. We warbled with Johnny Cash, Barbra Streisand, and Dionne Warwick and discovered the discotheque. We were not shy, but we were apprehensive.
As for human rights, it was no longer a twentieth-century adolescent. It matured into young adulthood, cleaning up the environment, reforming the law of the family, renewing the women's movement, admitting droves of women into law and medical schools, and acknowledging sexual orientation and harassment. It was the era of equal opportunity and tokenism. By now no one dared articulate intentionally discriminatory remarks, and the "Right" went underground or clothed itself in the respectability of neoconservatism. It was a time of hopeful dialogue and, in retrospect, a time of innocent vitality.
The Eighties
With the Eighties, under the suspicious but respectful gaze of Ronald Reagan's unique aura, human rights had arrived. But so had Phyllis Shlafly, Jerry Falwell, Iranian hostages, Barbarians at the Gate, and Sylvester Stallone. The lines in this decade became clearly drawn, as human rights and fundamentalism asserted competitive claims to superior ideologies. Both sides abandoned their timidity, donned the confident gloves of legitimacy, and entered the ring to try to win the minds of a dubious public. In the audience, terrorism, apartheid, nuclear weapons, famine, toxic waste, poverty, free trade, cancer, AIDS, and Dr. Ruth sat restlessly, determined to wait it out and make their respective pitches regardless of which side won. Those who found the tension too unnerving retreated into purple hair, Dolly Parton, diets, yuppiedom, Michael Jackson, Tina Turner, dry martinis, E.T., aerobics, or Madonna. And we still read The New Yorker.
By the end of the Eighties, we had swept into the aggressive fold those minorities and disabled persons for whom other decades lacked energy or time, and they joined issue with women and other human rights seekers to fuel the machinery that could guarantee the permanence of human rights' vision.
But what we experienced in the Eighties was a tension created by a generation old enough to remember the purgatory of the Sixties, and now fully recovered through the exegesis of the Seventies to be wistfully nostalgic about the traditions of the Fifties. We had an understandable urge to harken back to simpler times, in the tangled complications of a more layered one.
I think what the Eighties did was leave us slightly shell shocked. The extremes were so profound, the demand so intense, the self-centeredness so destructive, that we felt helpless to approach the factions and fractiousness that started the Nineties. We were drained, and we seemed to run out of patience. The national conversation became a series of monologues and harangues, and nobody was listening any more. We forgot what the issues were, so we didn't know what questions to ask. And because we didn't know what questions to ask, we couldn't figure out what our common objectives were. And because we couldn't figure out what our objectives were, we couldn't figure out what strategies we needed to get there.
The Nineties
We still couldn't figure it out in the Nineties. In the last decade of the century, the decade of Beavis and Butthead, the Kids from South Park, Star Wars' Jar Jar Binks, and the decade when we stood by "our man" but spent over $50,000,000 trying to find out if he had an extra-marital affair (something a good matrimonial lawyer could have done for half the money . . .), we seemed to have lost our human rights compass altogether. We appeared to have taken at face value Yogi Berri's suggestion that when you come to a fork in the road, take it.
What happened? A lot, including politics. But a big part of what turned our "rights" vision so myopic was that we allowed the premises behind civil liberties to checkmate the moves human rights wanted to make. Unless we understand that there is a difference between civil liberties and human rights, we will be unable to confront one of the most formidable conceptual barriers to the continued good health of human rights.
Civil Liberties
Civil liberties is a concept of rights that requires the state not to interfere with our liberties; human rights, on the other hand, cannot be realized without the state's intervention. Civil liberties is about treating everyone the same; human rights is about acknowledging people's differences so they can be treated as equals; civil liberties is only about the individual; human rights is about how individuals are treated because they are part of a group.
The human rights story in North America, like many of our legal stories, started in England. The rampant religious, feudal, and monarchical repression in
seventeenth-century England inspired
new political philosophies like those of Hobbes, Locke, and eventually John Stuart Mill-philosophies protecting individuals from having their freedoms interfered with by governments. These were the theories of civil liberties that came to dominate the "rights" discussion for the next 300 years. These were also the theories that journeyed across the Atlantic Ocean and were firmly planted in American soil, receiving confirmation in the Declaration of Independence, which guaranteed every "man" the right to life, liberty, and the pursuit of happiness, and that government existed only to bring about the best conditions for the preservation of those rights. Thus was born the essence of social justice for Americans-the belief that every American had the same right as every other American to be free from government intervention. To be equal is to share this same right. There are no differences.The individualism at the core of the political philosophy of rights articulated in the U.S. Constitution, ascribing equal civil, political, and legal rights to every individual regardless of differences, became America's most significant international export and the exclusive rights barometer for countries in the Western world. It promoted formal equality; it ignored group identities and realities and indeed regarded collective interests as subversive of true rights.
Evolution Toward Human Rights
It was not until 1945 that we came to the realization that having chained ourselves to the pedestal of the individual, we had been ignoring rights abuses of a fundamentally different and at least equally intolerable kind, namely, the rights of individuals in different groups to retain their different identities without fear of the loss of life, liberty, or the pursuit of happiness.
World War II jolted us permanently from our complacent belief that the only way to protect rights was to keep government at a distance and protect each individual individually. What jolted us was the horrifying spectacle of group destruction, a spectacle so far removed from what we thought were the limits of rights violations in civilized societies, that we found our entire vocabulary and remedial arsenal inadequate. We had no moral alternative but to acknowledge that individuals could be denied rights not in spite of, but because of, their differences, and accordingly started to formulate ways to protect the rights of the group.
We came to see the brutal role of discrimination, a word we had never used with the concept of civil rights, which permitted no differences. We invented the term "human rights" to confront it. We clothed the government with the authority to devise remedies to prevent arbitrary harm based on race or religion or gender or ethnicity, and we respected the government's new right to treat us differently to redress the abuses our differences attracted. We saw how the neutral purpose of civil libertarian individual rights had an unequal impact on the opportunities of many individuals, and eventually we saw that all the goodwill in the world could not protect us from our own prejudices and stereotypes, or from restrictively designing systems and institutions based on those prejudices and stereotypes.
So we blasted away at the conceptual wall that had kept us from understanding the inhibiting role group differences played, and extended the prospect of full socio-economic participation to women, non-whites, persons with disabilities, the elderly, and those with different sexual preferences. And, most significantly, we offered this full participation and accommodation based on-and notwithstanding-group differences.
It was as if we had awakened from a 300-year sleep, looked around us, realized how limited our rights vision had become, and, with stunning energy and enthusiasm, acknowledged more rights and remedies in one generation than we had in all of the centuries since the Glorious Revolution in England in 1688-9, starting with the remarkable consensus found in the Universal Declaration of Human Rights.
Civil liberties had given us the universal right to be equally free from an intrusive state, regardless of group identity; human rights gave us the universal right to be equally free from discrimination based on group identity.
Having decided halfway through this century to endorse a commitment to diversity as integral to our understanding of rights and justice and community, why did we abandon the commitment as the century closed?
Having witnessed the dazzling success of so many individuals from so many of the groups that we had previously excluded, it appears that we concluded that the battle with discrimination had been won and that we could remove our human rights weapons from the social battlefield. Having seen women elected, appointed, promoted, and educated in droves; having seen the winds of progress blow away segregation and apartheid; having permitted parades to demonstrate gay and lesbian pride; and having constructed hundreds of ramps for persons with disabilities, many were no longer persuaded that the diversity theory of rights was relevant, and sought to return to the simpler rights theory in which everyone was treated the same. We became nostalgic for the conformity of the civil liberties approach and frightened by the way human rights had dramatically changed every institution in society-from the family to the legislature.
And this, I think, is at the heart of why we have marginalized human rights. Unlike civil liberties, which protects our political relationships but rearranges no social ones, human rights is a direct assault on the status quo. It is inherently about change-in how we treat each other, not just in how government treats each of us. And so we tend to yearn for the rights that are less expensive, less confusing, and less frightening. The intellectual compartment into which we place information once again takes the shape of civil rights, and we end by dismissively calling a differences-based approach reverse discrimination, or political correctness, or an insult to the goodwill of the majority and to the talents of minorities, or a violation of the merit principle. Personal aspirations, we are now convinced, will be realized by those who deserve them, and no one qualified will be turned away. Civil rights trumps human rights. Social and economic Darwinism trumps social and economic reality.
Ironically, having dedicated the last five decades to promoting human rights and tolerance, we have learned to tolerate even intolerance.
We have permitted those who have enough to say "enough is enough," allowing them to set the agenda while they accuse everyone else of having an "agenda," and leaving millions wondering where the human rights they were promised are, and why so many who already have them, think the rest of the country doesn't need them.
The reality is there are still built-in headwinds for those who are different or thwarted in their conscious choices by stereotypes unconsciously assigned, and who cannot be expected to understand why the evolutionary knowledge we came to call human rights has suffered such swift Orwellian obliteration. We have forgotten the courage our post-World War II outrage gave us to expand our understanding generosity and have, I fear, been lulled into a false sense of complacency by the formidable human rights successes that resulted from our postwar courage.
We know from history that all rights are fragile and need nurturing, especially in their infancy. Democratic communities need their civil liberties rigorously protected, but unless they also protect their human rights, they do a disservice to justice. Certainly, we need the right to vote and think and speak freely, but no less do we need the right to eat and work and aspire freely. Before we relinquish the lessons of history to those who fear its transforming vision, before we allow the civil libertarian spirit to hold us in exclusive thrall, and before we are lured into intellectual lassitude by the successes of the lucky and the tenacious, we need to remember the rights lesson of World War II: the enormity of its intolerance shocked us into a new understanding of diversity. We should need no more such shocks to retain that understanding.
Ignoring the contributions our diversity offers to the social texture is incomprehensible; but ignoring the lessons of history is unforgivable.
Rosalie Silberman Abella is a justice of the Court of Appeal in Ontario, Canada.
Editor's Note: This article was adapted from a speech presented by Justice Abella at the American College of Family Trial Lawyers Annual Meeting in April 2000.
