Civil (or private) rights enjoy an odd existence: at once foundational and largely ignored. Even when they are considered, the reasoning that surrounds them tends to invoke so-called public policy concerns. I would suggest that there are good reasons for this ambiguous existence. I would also argue, however, that those reasons do not excuse the prevailing dearth of discussion surrounding civil rights in contemporary society.
Civil Rights Defined
Perhaps what little attension they do recieve is due to the confusion to which civil rights are subject. Civil rights, properly understood, belong to a conceptual morass which can easily bog down the unwary. Part of the problem is that the different kinds of rights overlap in many respects. On one level this is obvious and to be expected. After all, they all attach to human beings. While this need not universally be the case (think corporations and outlaws respectively), it certainly describes the vast majority of rights holders. On another level, however, it is the word ‘civil’ that confuses. What is meant by civil in this context is the same as is meant in civil society, that is, a private context concerned as between individuals. This is not to be confused with the context often associated with the civil rights movement in the US. It is true that, in part, they were seeking a recognition of their civil rights in the sense used here, but it the movement has now become synonymous with the political, some would say human, rights that they also sought.
In the sense I wish to use the term, civil rights evokes those rights that you have good against your fellow members of society. Classically, at common law, these include your bodily safety, freedom of movement, your property (both real and personal), your reputation and, perhaps, not to be lied to. These are rights in the sense that they can be vindicated in court insofar as they are all torts of one kind or another: assault and battery, false imprisonment, trespass and conversion, defimation, and deceit respectively. In this respect, and due to their common law nature, they exist, in theory at least, independent of the state. Her Majesty could abolish Parliament tomorrow, but she could not detain you or seize your goods without cause. (n.b. I say in theory because if the Queen were in a position to abolish Parliament she would have to be in a benevolent mood indeed to continue to pay, and refrain from applying pressure to, the judiciary.)
The Obsession with Political Rights
Why, then, is it that we hear so much about political rights? I think there are a few reasons, some of them historical and some of them of a universally pressing nature. The latter has to do with the fact that the state is scary and, with each passing day, increasingly so. It has always been able to muster a greater force than most, if not all, could possibly hope to assemble. Add to this the legal privilege to ignore an individuals right when they have cause and you end up with the ‘who watches the watchmen?‘ dilemma. You, as an agent of the state, have the privilige to ignore my right to freedom of movement if you have cause, but what is cause and does it matter how you happend to come by it? I think we would all agree that those two questions are of great importance and that, it would seem, is the gist of political rights. These questions, and political rights themselves, seek to curtail the otherwise terrifying power of the state. In a sense, it is a real life gloss on the ‘with great power comes great responsibility’ message of Spider-Man. The state may weild imense power, but its exercise is hemed in at every turn by our political rights, rights which are good against, but only against, the state.
The historical reason for the obsession with political rights is that they were not very well respected or widely distributed. This necessarily meant that many people were left standing naked before that terrible power of the state. This, as history has shown, became increasingly unacceptable. As many would suggest, we still have yet to see the end of this process of extension, especially if we think these rights are of a substantive as opposed to a procedural nature. As such, they have often been and, indeed, continue to be the subject of great concern. The most obvious injustices are often the most one-sided and, frankly, it does not get much more one-sided than a contest between you, the signle individual of limited financial means and only your own time with which to defend yourself, and them, the state of enourmous, nearly unlimited, finances and the time of its inumerable servants. Finally, we are all acutely aware that if we allow the state to ignore its responsibilities to that particular individual today, it could be any of us tomorrow.
Enter Human Rights
In some respect, human rights are a continuation of the obsession with political rights. The problem with political rights is that necessarily depend upon the political unit to which you belong. If your right is against this state, then you must be within its jurisdiction to claim it. Now, this appears radically unfair in a number of ways. Primarily, however, the argument for human rights appears to be a concern with equality. If we are all human why should a particular accident of birth alter you basic entitlements? The term is somewhat problematic, however, as the notion of ‘human’ rights is at once under- and over-inclusive. On the one hand, all rights are, to a large extent, enjoyed by humans – not just the political rights often covered by human rights legislation. On the other, as documents primarily concerned with political rights, human rights documents emphatically do not include all the rights enjoyed by humans.
It must be noted at this point that, at least in the Canadian context, provincial human rights legislation is targeted at civil rights in the sense used herein. They are not, however, comprehensive in scope. In the Ontario context the legislation only pertains to employment, accomidation, vocational associations, and ‘services, goods and facilities’. While that certainly covers many of the areas where an individual human being might face discrimination in the civil context, it is not exhaustive. The simplest example is that nowhere are your property rights enshrined nor is you right not to be lied to. Perhaps the legislation shouldn’t be comprehensive, though. After all, we are far less squeamish about placing obligations on the state than we are on private individuals.
Why You Should Care About Civil Rights
That said, the state is not the only entity before which individuals tend to stand naked and alone. Mill’s concern in On Liberty was as much about the tyranny of the majority as it was about arbitrary exercises of the state’s authority. Now, some will object to this notion of ‘society’ as a singularity, as an entity unto itself. They will not be alone, sharing the notable company of Baron Bramwell and many liberal theorists. Without requiring your ontological conversion, however, it is sufficient to accept that civil society exists, in some respect, and provides us with a number of goods. It can, as I have alluded to, be a source of harm as well. In this respect, at least, claim rights against the state are of little worth.
Now, it would be question begging in the extreme to assert, with nothing more, that we should all have claim rights good against the world, against both you and the state in equal measure, to non-discrimination in all things. It is not question begging, however, to wonder why civil rights, in the sense used herein, do not attract the same kind of attention as political/human rights. My concern is that if we are serious about tackling discrimination, in the popularly understood sense of confronting irrational and arbitrary distinctions, then it is not at all apparent that we can safely ignore this aspect of our social existence. It is cold comfort that the state treats you with dignity and equal respect if you cannot get a job or hold certain forms of property because of who you are.
With all respect to those who are of the contrary opinion, it is no answer to point to the Human Rights Code. There are many things for which the state should be responsible, but it is not obvious that it should be the arbiter of our common decency. While the common law does seem loathe to impose positive duties upon individuals, it would be absurd to suggest that it would therefore countenance an abdication of individual responsibility to the state. Indeed, it is not hard to appreciate that the common law’s distrust of positive duties is merely the correlative of a deep and abiding respect for individual responsibility. If so, then there might be more to our civil rights than we thought. In this respect, at least, perhaps the way forward looks a lot more like our past than it does our present.
n.b. this post is heavily indebted to the work of Robert Stevens in Torts and Rights.
