Sovereign individuals

John Peter Humphrey lived a public life showered with honors, including a Canadian postage stamp in his name. But his private life was full of trials and tribulations. His parents died early, he lost an arm in a fire during childhood, and his first wife, to whom he was deeply attached, was a semi-invalid most of her life. His career, which now appears dazzling, also had many ups and downs.

Human rights had a vaguely subversive aura in his early years and his attachment to social justice as well as human rights made him appear far more dangerous. In the United Nations he had an undeclared but abiding conflict with Dag Hammarskjold who, in his eyes favored a political approach to peace and justice and not the moral one which he espoused. His instrumental role in drafting the Universal Declaration of Human Rights was denied or diminished by his detractors, many of whom found it unfortunate to give credit to a white, male, Anglo-Saxon Protestant, even one with impeccable credentials in combating prejudice and injustice.

It was only in the last five years of his life, after the discovery of the first draft of the Universal Declaration in his handwriting that John Humphrey was transformed into a Canadian icon. Yet, ironically, the Canada that heaped praise on John Humphrey had turned its back on much of his legacy.

John Humphrey believed that human rights were fundamentally individual in nature. They depended on the conscience of each citizen and pre-supposed giving an equal value to each human being. Collective claims based on ethnicity, religion, gender and all of the other identities which make up the smorgasbord of Canadian multiculturalism were anathema to him. He promoted rights which the individual could defend against the majority as well as against particular interests in society, and their essence lay in their legal enforceability.

He was, of course, no friend of right-wing libertarianism. He was devoted to social justice and believed that a decent minimum of the riches of our society was part of the entitlement of each individual. Moreover, he hoped that society would redistribute much more than that minimum and, after World War II these hopes were largely realized. However, he did not dilute the notion of basic human rights with elements of collective rights and did not try to explain the fact that basic rights were not absolute through the creation of new, dubious rights.

Any sensible person will widely accept that human rights are not the sole concern of legislators or judges. For instance, incarceration is a clear violation of a basic right to liberty but, in many cases, both legislators and judges must have resort to it. In such circumstances, it is a very pernicious, if tempting exercise to invent a “collective human right” to security or a “victims’ right” as an excuse for restricting freedom. This is often what modern Canada does. When we claim that prohibition of hate speech is a human right which prevails over free speech and when reversal of the criminal burden of proof becomes a way of enforcing women’s rights, we create a web of human rights perpetually in conflict with each other, with the “collective” ones usually winning out.

Gilbert and Sullivan perceptively noted in The Gondoliers “when everyone is somebody then nobody is anybody”. If everything is a human right, then fundamental rights allowing the weak to challenge the strong no longer exist. Rather, human rights become a linguistic code justifying the politically correct causes of the times, much as Marxist language was used in the Soviet Union by communists to justify the failings of eastern European socialism. Often the terminology of human rights becomes the preferred instrument for suppressing basic rights and this type of hypocrisy substantially weakens public support and respect for them.

John Humphrey was deeply disturbed by these developments, especially in the last years marked by his worldly success. He had no use for multiculturalism, gender politics or victim-based vigilantism in criminal law or disciplinary law. In the 1970s, he founded the Canadian Human Rights Foundation as an independent and non-partisan body which, in its many conferences, promoted a forum for all positions, including “politically incorrect” ones. However, in the 1990s, he lost control of it, as the government imposed the usual Canadian restrictions as a condition for its subsidiaries.

As a result, the Foundation joined the rest of the Canadian human rights industry dedicated to promoting popular causes. Humphrey, on the other hand, remained loyal to freedom of expression, of conscience, of association and to the right to a fair trial. Some restriction of these rights was inevitable and often justifiable, but should not be explained by a saccharine appeal to competing human rights. Moreover, it is the unpopular cause which usually requires resort to human rights, and therefore one must be wary of what is generally accepted or is politically correct in our times.

It is likely that John Humphrey would have regretted recent tendencies in Canadian jurisprudence. He would have opposed both the Chaoulli case which chipped away at the principles of Medicare in the name of the Charter and the Mugesera case which favored the prohibition of hate speech over free expression to the point of exposing Mr. Mugesera to serious danger.

John Humphrey was not always correct. A man who had lived through the first half of the 20th century was naturally wary of all nationalism and for this reason he failed to understand the positive nature of many of the changes in Quebec. As a man of his epoch, he did not contribute to the movement to emancipate homosexuals, although he was not hostile to it. Despite these minor failings, he undoubtedly constituted Canada’s most significant contribution to human rights.

It is an irony, perhaps inherent in the human condition that in the years of his acclaim, John Humphrey was deeply distressed by Canada’s partial repudiation of his legacy. We would do well to re-examine the crucial elements of this legacy – the defense of individual liberty and of the freedom to dissent, the championing of unpopular causes and abiding mistrust of “collective rights”. They form the soul of Canada’s living human rights legacy.