Excerpt from A Future to Face written during the Referendum on the Charlottetown Accord in 1992.
The demand for a right is the expression of the extent to which the human personality has developed in relation to the conditions of the times. We are talking here about the human personality as a genre, as the quality of the times, as the product of social being. The demand for equality, then, is an historical product. The modern demand for equality consists in deducing from that common quality of being human, from the equality of human being as human beings, a claim to equal political and social status for all human beings, or at least for all citizens of a state or all members of a society.
The human personality or civilization has evolved over the millennia, according to the conditions of the times. There have been times when the conditions have left their imprint on the personality and there have been times when that very personality, in order to remain in step, has given rise to the demand that the conditions must change.
In the most ancient and primitive communities, equality of rights could apply at most to male members of the community, with women, slaves and foreigners being excluded from this equality as a matter of course.
Among Greeks and Romans the inequalities of men were of much greater importance than their equality in any respect. Under the Greek Empire distinctions were made between Greeks and barbarians, freemen and slaves, citizens and foreigners. The Romans made the distinction between Roman citizens and Roman subjects although, with the exception of the distinction between freemen and slaves, these distinctions gradually disappeared. In this way there arose, for the freemen at least, an equality as between private individuals on the basis of which Roman Law, a complete elaboration of law based on private property, developed.
In the European context during medieval times, there was the king and the feudal nobility with their lands and castles while production was carried out by serfs and indentured labour. All the rights pertained to the king by divine right and he ruled in conjunction with the church. In 1215, Magna Carta was signed by which the barons forced the king to hand some of his rights over to them.
Under the German domination of medieval Western Europe, a complicated social and political hierarchy was gradually built up as had never existed before and which abolished for centuries all ideas of equality. In spite of this, in the course of historical development, a system of predominantly national states was created for the first time, exerting mutual influence on each other and mutually holding each other in check. It was within these national states that at a later period the question of equal status of members of a defined body politic could be raised.
It was finally the epoch of the Renaissance, in the second half of the 15th century in western Europe, which brought us to the eve of modern times. Starting in Italy in the 1400’s and eventually spreading to all of Europe, the new form of capitalist production was born. Based on handicraft, on manufacture in the true sense of the word, it was the starting point for the large-scale industry of today. Royal power, founded on the inhabitants of the towns, broke the feudal power of the nobles and created the great national monarchies, within which were developed the new modern states and the new bourgeois society.
The great geographical and scientific discoveries of the time assisted this movement. The discoveries, such as those of Columbus whose voyage showed that the world is not flat, and Copernicus who proved that the earth revolves around the sun, strengthened man’s belief in himself. The invention of the compass opened the way for daring sea voyages or caravels, the ships of the 15th and 16th centuries which were fast and of small tonnage and sailed to and fro across the oceans, in search of new lands. Only then did these countries really discover the world for themselves and the foundations were laid for the further development of world trade. The invention of printing in 1450 assisted in the spread of the texts of Antiquity, and of education and culture. The discovery of gunpowder, brought by Marco Polo from China, destroyed the invincibility of the feudal castles.
These factors brought about an unprecedented development of the productive forces, but at the same time they brought a new, more savage, exploitation of the workers in manufacture and of the peasants. The social contradictions and the struggle of the classes were also accentuated. The inhabitants of the new lands were ruthlessly pillaged. Popular uprisings shook feudalism.
These changes helped in the birth of the new world outlook on life and man, expressed in humanism, and the liberation of man from feudal and ecclesiastical oppression. The humanists denounced the hypocrisy of the clerics who taught man to despise the good things of this world in order to gain paradise in the life after death. They insisted that man should attain happiness through his daily activities and the application of science. The object of science, philosophy, literature and the arts now became man himself. His rights must be defended. He must be brave and daring, and must judge in an independent manner. Consequently, he must adopt a critical stance toward everything which surrounds him. These qualities are not gained in terms of noble titles, but by daily activity.
The new culture was not a continuation of the culture of the Middle Ages, which was a period of darkness and ignorance, but of that culture which had been created by the Greco-Roman world. In every field of creativity of the humanists, one notes admiration for Antiquity. They believed it was not possible to create any work of value without imitating the Ancient which they considered to be unsurpassable. Engulfed by the cult of Antiquity, many humanists wrote their works in Latin, which was incomprehensible to the ordinary masses. Progressive humanists, however, fought for national unity and began to write in national languages.
The whole medieval system of education was criticized. Religious and scholastic ideology, a philosophical current of the 11th-14th centuries which was opposed to science and based itself not on the analysis of reality but on the dogmas of the Church, suffered a great blow. The study of Antiquity gave a new impetus to the experimental sciences, which began to free themselves from teleology, the religious doctrine that everything has a pre-ordained design or aim.
However, it must be kept in mind that all the advantages of this society pertained to that strata which could afford leisure time. The masses of people, highly exploited, were unable to receive culture and education and were not recognized as having any rights.
In the economic domain, trade had far surpassed the importance both of mutual exchange between various European countries and the internal trade within each individual country. American silver and gold flooded Europe. The handicraft industry could no longer satisfy the rising demand; in the leading industries of the most advanced countries, it was replaced by manufacture. The mighty changes in the conditions of economic life demanded corresponding changes in the political structures. Trade on a large scale, international trade and, more so, world trade, required free owners of commodities who were unrestricted in their movements and, as such, enjoyed equal rights. They needed to be able to exchange their goods on the basis of laws which were equal for them all, at least in each particular theatre of operation. The transition from handicraft to manufacture presupposed the existence of a number of free workers, on the one hand from the fetters of the guilds and, on the other, whereby they could themselves utilize their labour power and, hence, as parties to a contract, have equal rights.
This is the context in which the modern demand for equality takes shape. The economic relations required freedom and equality of rights, but the political system opposed them. It was left to the great men of the 18th century, especially in France, to transcend the thinking of the preceding age. The work which is the most representative of this age, the Age of Enlightenment, was the Encyclopédie, published between 1750 and 1789 in Paris by Denis Diderot with the assistance of Jean le Rond d’Alembert, and which included contributions by some forty other ‘philosophes,’ including Jean-Jacques Rousseau, François Marie Arouet de Voltaire, the Baron de Montesquieu, François Quesnay, Fontenelle, the Baron d’Holbach and the Compte de Buffon, as well as countless anonymous skilled workers and craftsmen and artisans consulted by the editors for the details on mechanical, construction and other technical instruments. It was also greatly influenced by men such as the Abbé de Condillac and Claude-Adrien Helvetius. It became a summation and crystallisation of the development of human knowledge up to the time of its publication in the mid-1700’s. Above all, it was an instrument of war against all the prejudices of the Ancien Régime. The Encyclopédistes energetically set out to popularise on an unprecedented scale the results of the scientific revolution so as to serve as a force for change in the society itself. It was a colossal commitment to social change, to harnessing human knowledge for social reform. It is clear that the popularisation of the accomplishments of the scientific revolution necessarily led to a fundamental and earth shaking challenge of all the ideas and tenets on which the society of the Ancien Régime was founded. Robert Niklaus, in an essay entitled The Age of the Enlightenment, writes:
Thirst for knowledge and intellectual curiosity were directed to the external world. Awareness of the history, languages and religions of people from foreign countries; the new developments in science, especially physics, mathematics and the natural sciences and medicine, were changing the climate of opinion throughout the civilized world. Attention was drawn to the ethics, politics and economics of social man, but it centred on individual man, his nature, his happiness, his relationship to the cosmos, the very processes of his mind and their validity…
Frederick Engels, in his book Anti-Dühring points out:
The great men who in France were clearing the minds of men for the coming revolution… recognized no external authority of any kind. Religion, conceptions of nature, society, political systems, everything was subjected to the most merciless criticism; everything had to justify its existence. The reasoning intellect was applied to everything as the sole measure. It was the time when…the world was stood upon its head; first, in the sense that the human head and the principles arrived by its thought claimed to be the basis of all human action and association; and then later on also in the wider sense, that the reality which was in contradiction with these principles was in fact turned upside down from top to bottom. All previous forms of society and government, all the old ideas handed down by traditions, were flung into the lumber-room as irrational; the world had hitherto allowed itself to be guided solely by prejudices; everything in the past deserved only pity and contempt. Now for the first time appeared the light of day; henceforth, superstition, injustice, privilege and oppression were to be superseded by eternal truth, eternal justice, equality grounded in Nature and in the inalienable rights of man.
This vindication of the rights of man and of the need to establish a better world on earth heralded the beginning of modern times. In his book Les philosophes, Norman L. Torrey points out that
our ideas of what constitutes the basic principles of democracy thus emerge from the writings of the “philosophes.”
The sense of equity, the feeling that there ought to be a law, antecedent to every positive and written law…was explained by d’Alembert as being acquired through experience with injustice, a theory of which Voltaire’s overriding passion for justice was a notable example.
John Morley in his work Diderot and the Encyclopaedists points out that:
In saying…that the Encyclopedists began a political work, what is meant is that they drew into the light of new ideas, groups of institutions, usages and arrangements which affected the real well-being and happiness of France, as closely as nutrition affected the health and strength of an individual Frenchman. It was the Encylopedists who first stirred opinion in France against the iniquities of colonial tyranny and the abominations of the slave trade. They demonstrated the folly and wastefulness and cruelty of a fiscal system that was eating the life out of the land. […] It was this band of writers…who first grasped the great principle of modern society, the honour that is owed to productive industry. […] aroused the attention of the general public to the causes of the forced deterioration of French agriculture, namely the restrictions on trade in grain, the arbitrariness of the imposts, and the flight of the population to the large towns. […] When it is said, then, that the Encyclopedists deliberately prepared the way for a political revolution let us remember that what they really did was to shed the light of rational discussion on …practical grievances.
But at the same time,
…not one of the ‘philosophes’ was truly a democrat. In their writings are found the intellectual origins of the French revolution, but they were not revolutionaries.
Montesquieu included in his Spirit of Laws a history of the origins and a defence of the feudal privileges which he shared as a member of the nobility. One aspect of his theory of the balance of powers was a House of Lords to serve as a stabilising force between the King and the lower house. Voltaire, as a benevolent landlord, mistrusted the people, who were ever prey to superstition and fanaticism, and believed that a constitutional monarchy was the best solution for France. Rousseau shared Plato’s mistrust of democracies and the almost universal belief that democratic administration procedures were impossible in large nations. Government by representation, they felt, could only lead to usurpation and corruption. Faced with this dilemma, Montesquieu suggested a federated republic, or society of societies, through which democratic institutions might be saved and the defensive strength of its members maintained.
In summing up the political contribution of the Encyclopédistes, Robert Niklaus writes:
It is agreed that for a long time the ‘philosophes’ pinned their hopes of reform on an ideal Legislator, who would ensure happiness and virtue, than on an enlightened despot, and only reluctantly, at a late stage and out of despair, turning away from the monarchy to espouse Republican ideals that were often inspired by Rousseau, whom few really understood at the time. for the most part they were more concerned with practical reforms, affecting commerce and industry; and civil reforms, by which men would be allowed to do all that the laws were prepared to sanction. They did not ask for political freedom, as is clear from a perusal of the article Liberté in the Encyclopédie. They did not wish to see all forms of censorship abolished, but rather the appointment of censors favourable to their cause. They unfailingly attacked inequalities in the social system, and the idea of a social contract as the basis of society gained ground, with its implication that if the ruler breaks the tacit contract between himself and his subject, he may be removed.
Rousseau’s idea of the need for popular consent provided a rational basis for the revolution which was to follow against the conception of rights captured in the declaration of Louis XIV L’état, c’est moi. Rousseau’s declaration that “All men are born equal” was used to explain how natural man may be denaturalized and remoulded into civil man, how civil liberty may be substituted for natural liberty and how equality may be regained through a society founded on the general will of a sovereign people. The Social Contract was put forward as the logical basis of all legitimate authority. The general principles of the social contract include the idea that no man has any natural authority over his fellow man and thus no king rules by divine right. The individual as the basic unit surrenders his natural right to the state, in which he is both sovereign and subject. He advances the concept of civil rights which supplant the natural forces and that might does not make right. Might he says always remains a supreme court of appeal and justifies revolution against tyranny or the usurpation of political powers.
Rousseau poses the problem as follows:
I suppose men to have reached the point at which the obstacles in the way of their preservation in the state of nature show their power of resistance to be greater than the resources at the disposal of each individual for his maintenance in that state. That primitive condition can then subsist no longer; and the human race would perish unless it changed its manner of existence.
But as men cannot engender new forces, but only unite and direct existing ones they have no other means of preserving themselves than the formation, by aggregation, of the sum of forces great enough to overcome the resistance. These they have to bring into play by means of a single motive power, and cause to act in concert.
This sum of forces can arise only where several persons come together: but, as the force and liberty of each man are the chief instruments of his self-preservation, how can he pledge them without harming his own interests, and neglecting the care he owes to himself?
He states this difficulty as follows:
The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before. This is the fundamental problem of which the Social Contract provides the solution.
The clauses of the Social Contract, he writes, may be reduced to one:
the total alienation of each associate, together with all his rights, to the whole community; for, in the first place, as each gives himself absolutely, the conditions are the same for all; and, this being so, no one has any interest in making them burdensome to others.
…each man, in giving himself to all, gives himself to nobody; and as there is no associate over which he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses, and an increase of force for the preservation of what he has.
At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body, composed of as many members as the assembly contains voters, and receiving from this act its unity, its common identity, its life, and its will. This public person, so formed by the union of all other persons, formerly took the name of city, and now takes that of Republic or body politic; it is called by its members State when passive, Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State. But these terms are often confused and taken one for another: it is enough to know how to distinguish them when they are being used with precision.
Rousseau’s concept of sovereignty then is “nothing less than the exercise of the general will” which alone
can direct the State according to the object for which it was instituted, i.e. the common good: for if the clashing of particular interests made the establishment of societies necessary, the agreement of these very interests made it possible. The common element in these different interests is what forms the social tie; and, were there no point of agreement between them all, no society could exist. It is solely on the basis of this common interest that every society should be governed.
The sovereign power, he says, can be transmitted, but not the will.
Such a conception aroused people in Europe and the Americas and made them conscious of their rights within these conditions. The rising industrialists and merchants although continually growing richer, were deprived of political rights. The highest state posts were in the high ranks of the nobility who guarded their power jealously, mercilessly suppressing every organized movement. The maintenance of the royal court swallowed up huge sums of money. The taxation policy was so savage that it not only produced a series of peasant uprisings but also seething rebellion in many of the colonies.
The French revolution struck a heavy blow at the bases of the old feudal order and a new class, the bourgeoisie, came to power and took over the positions of authority. The American War of Independence took place creating the United States of America. Since these great achievements of the 18th century, a period of two centuries ensue filled with the turmoil of growth and development, reflected in all spheres.
Since at least the beginning of the twentieth century the issue of the discredited party system and political process has been coming to the fore time and again. The electorate seeks to have a role in the decisions which governments make. Repeated national crises have served to eclipse this problem to the extent that during such crises governments put themselves forward as representatives of the will of the nation. This was the case during the first and second world wars. The most recent example of such a thing was the way American public opinion rallied behind George Bush during the American attack in the Gulf War and then, once the perceived national crisis was over, demanded he do something about the state of the American economy.
It is no accident that this notion of “national will” gets mixed up with “popular will”; one has to do with the issue of the nation as a whole and the other is related to the relations between the citizens and their body politic. One cannot replace the other.
What we have to deal with is the flaw which exists in the democratic system and in the political process, because both of them do not represent the modern constituency. During the 18th and 19th centuries, they were consistent with their constituency which were the propertied classes which had risen to assert their claim to political power. This takes place whether in the colonial heartlands, or in the colonies.
In the course of the development of the last two centuries, the political franchise becomes universal; not only are women included, but also those Imperial England had considered “inferior races,” In Canada, it is when the native people finally get the franchise that the suffrage is made truly universal. It would seem that once the franchise becomes universal, the discrepancy between where the political power lies and who has political rights grows. This flaw in the democracy is never addressed.
When the new political power came into being in the 18th and 19th centuries, it represented a definite constituency. All notions of representative government, popular government and responsible government were generally speaking “in sync” with the propertied classes which formed the political constituency. When there was no contradiction manifested between the legal sovereignty and the political sovereignty, a more or less harmonious situation existed. Once the political parties in the Parliament no longer represent the various constituencies amongst the electors, the contradiction flares up, with the discontent of the people becoming paramount and the powers that be seeking a national crisis in order to overcome the problem. But this only diverts from the real issues of the need to renew the democracy; the political system which has a contradiction between the constituency which has power and the constituency which is empowered in name. On the other hand lies the need to renew Canada; the need to incorporate all the Canadian people into the Canadian nation. The issue is to give human rights a definition and a political guarantee as well as to give national rights a political guarantee. Such a thing is required to renew the democracies everywhere.
Today, after the Cold War period is over, it is not the first time the issue has arisen that the democracies need renewal. The flaw that the political power no longer politically represents the entire constituency which now includes all human beings, not just those with property, has to be addressed. How to empower the constituency as it exists today is the fundamental problem at hand.
The issue of renewing Canada is slightly different. This concerns the nation and is linked with the issue of the federation, how it was formed and with what exists today. When Canada was made a federation, the BNA Act declared that in all matters not pertaining to the distribution of powers, the rulings of the Parliament of England would apply. In other words, in all matters pertaining to the relationship between the citizenry and their government, Canada inherited the entire corpus of English constitutional and non-constitutional law, all Acts of the British Parliament from the time of the Norman Conquest. Until 1949, the highest Canadian Court was the Judicial Committee of the Privy Council which sat in London and was composed largely of English judges. English common law developments were incorporated, more or less, automatically into Canadian common law. Since 1949, English decisions have not been binding but treated with great respect by the Supreme Court of Canada. Since 1982, no act of the British parliament can extend to Canada as part of its law.
When we talk of Canada coming of age, the first step came in 1867 when it got self-government; the second step came in 1949, when Canadians were no longer bound by the decisions of the English Parliament and English courts. The third step came in 1982 when the constitution was patriated and the British Parliament no longer held the right to amend the Canadian constitution and veto the decisions of the Canadian legislatures. Now the final coming of age will be the actual process of renewing the democracy and renewing the nation. This is because the constituency of the federation also requires renewal to recognize 1. the fact that the colonial arrangements as regards Quebec and the denial of the Indian nations has to be corrected; 2. that Canada is today comprised of people from some forty-five nationalities and that the equality of all languages and cultures should be recognized and 3. the division of powers as set out in 1867 necessarily need renewal to bring them into accord with the modern international and national economic and political arrangements.
Thus the renewal of democracy must address itself to drafting a new constitution which will correctly define the body politic as a democracy, with sovereignty resting in the people, and define the rights and duties of the people, the subjects, and which rights and duties they confer onto their elected representatives, their government, and so on. In other words, it has to define a democratically-determined decision-making process and solve the problem of how the subjects participate in government. One of the human rights in the political sphere is the right to participate in governing one’s society. This is because human beings by virtue of their being live in societies and they make a claim upon society to satisfy their right to housing, a living, an education, health and welfare, etc. The demand is that society must satisfy these wants and recognize them not as policy objectives but as rights. These are demands which stem from the right to be, the right which comes into existence the moment a person is born. The birth itself puts a demand on the society. This is a right which can never be extinguished.
The political crisis, the crisis caused by the fact that the legal sovereignty and the political sovereignty are out of step with each other can also not be sorted out without resolving the Constitutional crisis, without recognizing the need to draft a new constitution which gives Canadians 1. a renewal of their federation and 2. a political constitution which is theirs, not one which can merely be understood by those who come out of the English tradition. This is not a matter of throwing the baby out with the bathwater. Canadians would wish to enshrine in their constitution the most advanced experience human civilization has given rise to. The issue is not to have the most perfect constitution; the issue is to learn from our experience with democracy and learn from that of others since the 18th century and make our own further contribution to this experience.