The Rights Revolution

by Michael Ignatieff

  As aboriginal leaders have been saying, and as a recent Canadian Royal Commission on Aboriginal Peoples has argued, the best way to address both issues is through a treaty-making process.18 This process recognizes the existing treaty obligations of both parties, and it also acknowledges that both parties come to the table as equal nations. The purpose of negotiations is not just to define title to land and resources, and not just to turn over powers of local administration to legitimate aboriginal authorities, but also to find a way to share the sovereignty of the national territory. This issue presents both sides with exceedingly difficult problems of principle. For a Canadian government even to enter into negotiations with aboriginal nations about sharing sovereignty is to concede that the sovereignty they are discussing is a patchwork quilt of overlapping jurisdictions (of which the national or federal power is only one of three). For aboriginals, discussions about sharing sovereignty require accepting the legitimacy of a government that presided over their despoliation as a people. This double process of recognition has been exceedingly hard, and it is not yet concluded. It may take generations before it is completed and a genuine spirit of sharing becomes possible. The treaty process is designed, therefore, as a course of joint problem solving and mutual recognition.

  The problem of sharing sovereignty is not just a matter of working out a division of powers — reserving for the federal government such domains as foreign and defence policy, banking, currency, and citizenship, for example, while leaving to aboriginal peoples the administration of local lands, resources, education, infrastructure, and social services. Instead, the key issue is the unity of Canadian citizenship.19 The non-aboriginal majority believes that the rights protections of the constitution should prevail, while some aboriginal nations deny the jurisdiction of the Charter over such matters as women’s rights to participate in decision making or the rights of non-aboriginals who live on aboriginal land. Other aboriginal groups may wish to deny access to their nation on the grounds that the individual seeking membership lacks the right lineage. Yet any use of ethnic, racial, or blood-related criteria for membership in any Canadian group violates Charter rights to civic equality.

  In these contentious cases, the right way to approach a solution is not to ask which sovereignty, Canadian or aboriginal, must prevail, but to ask how Charter protections can be reconciled with aboriginal traditions so that the result is legitimate to both parties. And how should joint institutions be designed to do so? Eventually, such matters end up in court, first in the aboriginal courts and then eventually in Canadian superior courts. At all levels, the process of resolution has to be one of intercultural negotiation between equal partners. Equality is mandated by our rights traditions, and so is respect for difference. So Charter protections must be not only respected but also interpreted with due regard to aboriginal custom. The question that has to be answered in this process is not whose rule prevails, but whether the decision that is reached commands the assent of the parties. Achieving legitimacy in the decision should matter more than sovereignty. If we could reinforce the legitimacy of joint decision making, the effect of sharing sovereignty over these decisions would not be to balkanize the country, but the reverse: to increase the felt legitimacy of the decisions and choices that a country has to make.

  Most Canadians believe the laws of Canada, especially criminal laws, should be applied and enforced uniformly across all jurisdictions. But if federal or provincial judges sit with aboriginal partners in courts in areas under aboriginal government, and if each group’s legal tradition is given the interpretive respect it is owed by the other, it should be possible to arrive at the result that both want (i.e., equal justice for both aboriginal and non-aboriginal Canadians). The strongest incentive to co-operate lies in the plain fact that at the moment they do not, and until Canadian justice acquires legitimacy in the eyes of aboriginal citizens, we will not live in a country that commands their assent.

  The process of working out how to share sovereignty is diabolically complicated, protracted, and expensive. Some aboriginal groups are seeking aboriginal government (i.e., control over their own population, lands, and affairs). Here there are substantial problems of institutional competence and experience, and there have been instances where self-government on reserves has been corrupt, inefficient, or nepotistic.20 Aboriginal peoples would not want their standards of fiduciary responsibility in government to be any less stringent than those required of Canadian municipalities. Other aboriginal peoples, such as those in Nunavut, the vast, new self-governing territory in the Eastern Arctic, are seeking control of a public government — that is, one that rules both aboriginals and non-aboriginals alike. Here the problem is to balance what is in effect ethnic majority rule with minority-rights protections and guarantees of public participation to minorities. And a third group, mostly those resident in cities, is seeking effective control of local services.

  Each of these types of self-government is different, each overlaps with other jurisdictions, and each of these overlaps must be harmonized in a spirit of sharing. The units seeking these rights of self-government are often small, divided within themselves and against each other. In one Canadian province alone, there are fifty-one groups, each claiming the title of nation, in negotiation with the provincial government over land claims.21 Some of these negotiations have been in formal process for more than a quarter of a century. The costs to both sides, in every sense, have been huge. But there is simply no alternative. Assimilation, forced or otherwise, has been tried and rejected. Recent conflicts between aboriginals and non-aboriginals over rights to land have erupted in violence, and in the case of Oka the violence was contained only by the interposition of the army. It is clear that we cannot go on like this. Either we must share power, land, resources, and sovereignty among the nations of this country, or we will founder in civil strife.

  But the sharing has to go both ways. The majority’s recognition of aboriginal peoples must be followed by aboriginal recognition of the legitimacy of our equal claim to the land. We will not survive if a resentful majority, harassed by guilt-mongering, is simply forced from one concession to another by threats. What is required is a process that builds a mutual and equal recognition, each side publicly acknowledging the other’s right to govern and live in peace. At the moment, might lies with the majority and right with the minority. Mutual recognition must rebalance the relationship, with both power and legitimacy finding a new equilibrium. Then, and only then, will we be able to live together in peace in two countries at once, a community of rights-bearing equals and a community of self-governing nations.

  IV

  RIGHTS, INTIMACY, AND FAMILY LIFE

  DURING THE PAST FORTY YEARS, the rights revolution has penetrated the most intimate spheres of private life. As rights talk moved from the public sphere to the family dinner table and then into the bedroom, it overturned sex roles, the family division of labour, and sexual identity itself. The rights revolution has become a sexual revolution, and in the process, it has transformed all our most important social relationships: between men and women, between parents and children, and between heterosexuals and homosexuals.

  All liberal democracies have gone through the same social transformation. The only distinctive aspect of the Canadian pattern has been the speed with which courts and legislatures have responded to demands for children’s rights, easier divorce, abortion rights, the equation of marriage and co-habitation, and the full entrenchment of rights to sexual difference. The fact that these rights were conceded speedily does not mean that they were conceded without a struggle, however. Nor does it mean that the struggle is over. Women still do not earn equal pay for equal work and the burdens of unpaid child care still fall disproportionately upon them. Homosexuals still do not enjoy the same rights to marry, to adopt, or to inherit pensions and other assets from their spouses.1 Yet even though the rights revolution in private life remains unfinished, it is hard to imagine that it will not run its full course. The reason is
simply that the rights revolution appeals to an idea of equality and against this idea there is no remaining court of appeal.

  The demand for equal rights in intimate life is also a demand for recognition. I’ve said a lot about rights and very little about recognition. It’s time to define the term. Recognition is a very Canadian idea, since it was a Canadian philosopher, Charles Taylor, who first put it into common parlance among political philosophers.2 To recognize someone in common speech is to put a name to a face, to single him or her out from a crowd. To be recognized is to emerge from anonymity, to be seen and acknowledged for what you are. When you are recognized, you cease to be a nobody and you become a somebody in someone else’s eyes. Groups are fighting for a similar kind of recognition. They want the majority to recognize them, to see them anew, to acknowledge that they are equal, not only in law, but also in moral consideration. Equality of rights is the precondition for recognition, but it is not sufficient to ensure it. When individuals and groups seek recognition, they want their equality recognized, but they want their differences acknowledged as well. Beyond legal equality, groups seek acknowledgment of the value of their culture, heritage, and distinctive point of view. Struggles for recognition typically require a group of people to recognize themselves first, to overcome their own shame or lack of self-worth and then project an image of themselves as they wish to be seen by the watching world. Once this process occurs, the struggle turns into a demand that the watching world change its view of the group, engage with its own clichéd or stereotyped views and reach out to its members both as equals and as people whose differences from the mainstream are to be acknowledged and welcomed.

  The whole difficulty about recognition turns on the question of whether it means acquiescence, acceptance, or approval.3 When a majority grants a minority rights, is it required to acquiesce to, accept, or actively approve the practices of this group? Certainly gay groups, for example, are asking not just for toleration, but for approval. And approval seems to follow from the idea of equality. But does equality of rights necessarily require equality of approval? The majority has conceded equality of rights to homosexuals, but this seems not to imply approval, merely reluctant tolerance.

  In the era of the rights revolution, demands for equal rights have also become demands for approval. Indeed, it might even be claimed that anything less than full approval denies the excluded individual (or group) recognition of his or her status as an equal. But there is a problem here — and it is colloquially called political correctness. One fundamental critique of the rights revolution is that it engenders a coercive culture of ritualized, insincere approval. When every excluded group is demanding both equal rights and recognition, the majority can feel that it is being compelled to accord moral approval to practices that, at best, it only tolerates. So political correctness becomes a code word for a new form of moral tyranny: the tyranny of the minority over the majority. You can’t speak of sexual promiscuity among gay people, lest you appear to be demeaning gays in general. You can’t speak against affirmative-action programs that favour women, lest you seem to be denying women full recognition and respect. And so on.

  Whether these constraints on public speech are actually a form of tyranny is another matter. Anyone with a memory knows that coarse, offensive, and demeaning remarks about women and gays were commonplace in the male culture of recent times. Creating a culture where groups are freed from the dismal drizzle of these remarks cannot be regarded as a serious constraint on the free speech of those attached to these stereotypes. So on balance, the idea that the rights revolution ends in coercive political correctness seems obviously misconceived. Yet closing down a culture of casual and ill-considered abuse is quite different from moving a culture towards full-hearted approval of same-sex activity and positive discrimination in favour of women. Rights equality changes moral culture because groups demand recognition. As they do so, they force sexual majorities beyond toleration towards acceptance and approval. So long as this process is negotiated, so long as it is not presented as a unilateral demand for surrender, rights equality can be followed successfully by full recognition. But if the majority feels coerced into according approval, rather than just toleration, the result is likely to be a backlash. Once the relationship between rights and moral change is understood as a protracted process of intercultural negotiation between majority and minority, it becomes clear that rights are a necessary precondition for recognition, but not a sufficient one. Even if they secure equal rights, same-sex couples may still have to await their fellow citizens’ recognition of them as moral equals. The process will take some time and properly should do. But again, it seems hard to imagine that this respect will not follow eventually.

  In this lecture, I am examining the intertwined process by which a rights revolution became a sexual revolution, which in turn became a moral revolution driven by a demand for equal recognition. But even this doesn’t begin to describe the magnitude of the change that has overtaken private life since I came to manhood in the 1960s. The rights revolution surfed on top of a much bigger wave, which brought with it improved access to higher education for women, the entry of married women into the workforce, the arrival of the birth control pill, and the development of social security systems that cushioned the impact of family breakup.

  The American social theorist Francis Fukuyama has called this converging set of moral, technological, demographic, and legal changes “the great disruption.”4 All advanced societies were affected by it, but as Fukuyama argues, Western societies were more disrupted than any other. In a society like Japan, the great disruption did not sweep away traditional marriages or increase the rate of divorce. This fact helps us to see that rights talk in the West did more than ratify social changes that were already under way. It actually helped trigger the social changes themselves. What raised divorce rates in Western society, but not in Japan, was the Western endorsement of values of individual autonomy, which in turn eroded the fabric of female self-sacrifice upon which the family depended as an institution.

  Forty years after these changes, we are still trying to take account of their effects. The ledger has many double entries. There is more sexual freedom and more divorce. There are more varieties of sexual identity and more confusion about what kind of sexual beings we actually are. Abortion rights have increased the freedom of women, while at the same time raising bitter and contentious debate about our right to terminate the life of the unborn.5 There are more types of families — same-sex, single-mother, single-father — and yet more anxiety about whether family intimacy and stability can endure.

  In this lecture, I want to tell the story of this double revolution in rights and sexual conduct and ask whether rights talk is weakening or strengthening our capacity to sustain intimate life. We all need intimacy, children especially, but intimacy requires permanence. Is the rights revolution threatening permanence? Is there too much talk of rights in intimate life and not enough talk of responsibility?

  Questions like these are not new. Indeed, they are the hardy- perennials of modern self-doubt. By modern, I mean any society based on markets and individual rights. In North America and Western Europe, we have been living in such societies at least since 1700 and ever since then social critics have contended that market life endangers stabilizing institutions such as the family. As the great Harvard economist Joseph Schumpeter argued, capitalism depends upon values such as trust and mutual confidence; without these, no one would feel safe enough to enter into contracts and exchanges.6 Now, the source of such values is the family. But the “creative destruction” of the capitalist investment process recurrently overturns stable ways of life and work based on existing technologies. These convulsions make it difficult for families to maintain continuities of care. If wage pressure and time pressure deplete the emotional reserves of family life, children are less likely to learn the values on which the larger society depends. Children who do not learn how to trust and how to love turn into selfish and aggressive a
dults. The result, if family breakdown becomes general, is a brutal and uncaring social order. This chain of reasoning is very familiar. There is no more enduring fear in capitalist life than that the system erodes the very values it needs to maintain order.

  Capitalism’s chronic instability used to be chiefly blamed for harming family life. But newer critiques emphasize the destabilizing effects of abundance. Abundance changes the moral economy of a society by favouring values of consumption over saving, self-assertion over self-restraint, present-mindedness over future-orientation. Abundance has other moral effects as well. Societies of scarcity are obsessed with distribution and therefore with equality; societies of abundance care less about distribution once poverty ceases to manifest itself as absolute deprivation. Paradoxically, abundant societies that could actually solve the problem of poverty seem to care less about doing so than societies of scarcity that can’t. This paradox may help to explain why the rights revolution of the past forty years has made inequalities of gender, race, and sexual orientation visible, while the older inequalities of class and income have dropped out of the registers of indignation. Abundance has awakened us to denials of self while blinding us to poverty. We idly suppose that the poor have disappeared. They haven’t. They’ve merely become invisible.

  There is little doubt that the rights revolution of the 1960s is the product of the most sustained period of affluence in the history of the developed world. The old virtues, the old limits, lost their legitimacy. The new virtues — self-cultivation, self-indulgence, self-development — acquired the force of moral imperatives. This is the context that explains why the old moral economy of self-denial began to lose not only its economic rationale but its moral dignity as well.