The case for distinguishing between human rights and group rights

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The judge who denied chemo to an 11-year-old Aboriginal girl based on her parents' Aboriginal rights muddled matters magnificently. He said the mother's "decision to pursue traditional medicine for her daughter is her aboriginal right" and isn't subject to "the western medical paradigm" -- like chemo -- since that would "open the opportunity to perpetually erode aboriginal rights."

This makes it sound like a noble but tragic "conflict between two rights": the Aboriginal right to identity versus the child's right to live. Tragic since the child will likely die, but what can you do? It muddles things because I'm not sure the rights are comparable. I'm not even sure "identity" or "culture" count as rights, or human rights, in the same sense as life or freedom.

They're more like givens. A sense of belonging to a group is basic stuff; at this point in history it's hard to imagine humans without it. It gives lives meaning. Especially in harsh times, it keeps people going.

Attempts to strip that sense are the core of genocide, which is an effort to destroy a group qua group; it needn't involve physical extinction, though that's the extreme version (the Holocaust, First Nations in the Americas). In Canada we've had two huge cases of genocidal intent: the Durham Report of 1839, which aimed to assimilate French-Canadians -- "a people with no literature and no history" -- into the Anglos. And the monstrous attempts to obliterate native peoples by banning practices like the potlatch, sending them to residential schools, etc. These are brutal criminal examples. Their failure testifies to the depth of the human need for a collective identity.

But what? There is a but. Group rights -- if you want to call them that -- have an abstract, general quality; they're always subject to negotiation in the group so they're malleable. What is traditional medicine? Ideas will vary and not all members will buy in at all. What was the potlatch? No one knows for sure, it's under reconstruction. Who even belongs to the group? That's debatable.

Human rights though -- life, free speech, etc. -- have a self-evident quality and belong to all individuals by simple virtue of being human. They are universal and individual, and can't be swapped off for group rights, as the judge implied. He can say he chose group over human rights; he can't claim they're comparable.

This confusion in distinguishing universal human rights from group rights is recent. It seemed to emerge with the rise of identity politics in the 1990s. That in turn arose after the Cold War with the collapse of the traditional left and its economic emphases. People of goodwill and ethical bent sought new channels for their activist impulses.

Some found their way to identity politics and advocacy for disadvantaged groups, aided by thinkers like McGill's Charles Taylor, who wrote on group "recognition" as a right. Native peoples are a special case, since they alone have legal and treaty claims with Canadian governments. But they're also part of the overall situation, like other groups, or why would they be pursuing their claims in a Canadian context in Canadian courts?

Yale scholar David Bromwich has issued a fine screed -- "A Dissent on Cultural Identity" -- against the idea of rights based on "culturalism." In the American way, he stakes out an extreme position: "... liberal culturalism is a lie ... theorists of cultural identity are hatching dragons ... The fire may scorch us in the years to come."

I take a more mealy-mouthed Canadian stance. I think there are cases where you can back off basic human rights in order to deal with a pressing case of injustice to a group. So I'm in favour of affirmative action in the workplace. I think it's an affront to human rights and unjust, and people suffer injustice from it, but it's the best way to deal with a serious problem. You should simply admit it's unjust and try to get back to rights basics as soon as possible.

What I wouldn't do is what the judge did in the chemo case: imply the rights involved are equal so there's no real problem or inconsistency; just a brave choice he made. And I wouldn't do it at all where an 11-year-old's life is at stake.

This column was first published in the Toronto Star.

Photo: Christopher Long/flickr

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