LaFontaine-Baldwin Symposium
2003 Lecture

The Right Honourable Chief Justice of Canada, Beverley McLachlin, PC

Yet the ethic of respect and accommodation possesses venerable roots. One hears its echo in the declarations of western religion that all humans are created "in the image and likeness of God". The European Enlightenment contributed to the secular conception of fundamental human worth by celebrating the universality of reason, and Immanuel Kant urged that we treat humans as ends and never only as means. The Romantic movement furnished a robust notion of authenticity, premised on the idea that each person held a unique and intrinsically valuable potential that would be unlocked through genuine expression in life. These and other streams of thought converged and were filtered through the horrors of the first half of the 20th century.

The result was a coalesced notion of the intrinsic worth of all humans and a palpable sense that social and political recognition of this idea was critical. John P. Humphrey, one of Canada's great contributors to the project of recognizing human rights, reflected this historical truth when he stated that, although human rights did not figure on the international stage prior in time, "[b]y 1945... the historical context had changed, and references to human rights run through the United Nations Charter like a golden thread". We can now look back to the ultimate product of the work of Humphrey and others, the Universal Declaration of Human Rights, and find the clarion assertion that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."

Cette conception nouvelle de l'égalité fondamentale des êtres humains trouve son expression dans la langue du droit, à travers la reconnaissance des droits de la personne. L'égalité emporte avec elle le droit de chacun à la liberté. L'égalité n'existe que dans le respect de chaque individu. The new idea of the equal worth of every person finds expression in the legal language of rights -- human rights. If all people are equal, it follows that all people are equally entitled to freedom, fair treatment, and respect. The rights are easily stated. The more difficult problem is to move them off the sterile page and into the reality of people's lives.

Formal declarations of equality are not enough to remove discrimination and exclusion. Indeed, they may perpetuate them. Formal equality is the equality of "separate but equal". The group is hived off, labeled "different", and told that they are equal with one important qualification - equal within their designated sphere. Cloaked by the facade of formal equality, group difference perpetuates denial. Examples are not hard to find. Formal equality allowed African Americans to live in forced segregation for decades. In the eyes of many, it still justifies treating women as different. You are equally worthy, these groups are told. It is just that you are different. Understanding and accommodating difference is essential to true equality. But when differences are manufactured, exaggerated or irrelevant, the result is to perpetuate inequality. True equality requires an honest appraisal of actual similarities and differences - an understanding of the context in which human devaluation occurs. To make equal worth a reality we need more than what Michael Ignatieff calls "rights talk". We need to look beyond the words to the reality, or context of the individual and group, to understand the other in his or her full humanity. This requires an open and honest mind, a willingness to bridge the gap between groups with empathy. Only when we look at the member of a different group in this way are we able to give effect to the promise of equal worth and dignity.

Understood in this way, rights, like the nation state, create a protected space for difference within society; a space within which communities of cultural belonging can form and flourish under the broad canopy of civil society. This applies to the traditional "individual" rights which enable individuals to form and maintain the groups that constitute civil society, to adapt these groups to changing circumstances, and to promote their views and interests to the wider population. Will Kymlicka states, "It is impossible to overstate the importance of freedom of association, religion, speech, mobility, and political organization for protecting group difference". But a second kind of rights - group rights - are also important. These are rights that inhere in an individual not qua individual, but by reason of the groups to which he belongs, like protections for minority language and religion. "[W]ere it not for these group-differentiated rights, the members of minority cultures would not have the same ability to live and work in their own language and culture that the members of majority cultures take for granted". Together, individual and group rights contribute to an ethic of respect for difference and meaningful inclusion of multiple "others" in a diverse society.

Rights that acknowledge people as members of groups do not lead to a fragmented state. True, they are important to the communities they protect. But they also help us reach across the borders between groups and to establish a civic community embracing sometimes profoundly different groups. The language of rights can serve as a common language of understanding. As Harvard Law Professor Martha Minow puts it, "[r]ights provide a language that depends upon and expresses human interconnection at the very moment when individuals ask others to recognize their separate interests".

We must confront the dark side of human difference. We must recognize the price the marginalization of the other in our midst exacts -- a price we pay in the coin of war, suffering and unrealized human potential. We must provide refuges for our minorities -- the physical refuge of the protective nation state and the conceptual refuge of respect and accommodation embodied in the principle that all people, regardless of the group to which they are born or assigned, are equally worthy and equally deserving of respect. Only thus can we combat the discrimination and exclusion that have marred so much of human history.