Here’s a question: are human rights contingent or emergent? In other words, do they depend on the circumstances and the cultural milieu? Do they depend on the context in which the events in question are imbedded, and maybe even the time-frame –the Epoch? Or, do they exist a priori and exist no matter what the circumstances and so transcend any particular event? An existential consideration, to be sure, but an important one.
If I read history correctly, human rights likely began contingently. Indeed the very word ‘right’ suggests their origin as something granted to someone under specific circumstances. They were guaranteed to someone by whoever possessed sufficient power to do so. And as time passed, these rights grew –evolved- and the context enlarged. So, when the power became invested in the populace at large, the rights took on a life of their own and seemed to be inalienable and self-evident -no longer granted, but obviously existing: they were emergent. They accreted new considerations and enlarged, and are evolving still.
Rights continue to be a moving target. As societies mature, their foundational principles come to be read in a new light. Emergent or contingent..? Alas, as we add new limbs to the ever-evolving animal, we tend to be revisionist and judgmental about its more embryonic forms, even though we’re seeing them through modern eyes, and modern prejudices…
And yet some things seem almost suited to temporal bigotry. I’m thinking here of the current controversy over Trinity Western University –a private, Christian institution- and its decision to open a law school: http://www.huffingtonpost.ca/2014/04/11/trinity-western-university-law-school-bc_n_5134482.html This came on the heels of a 2009 decision by the Supreme Court of Canada overturning a challenge by the British Columbia College of Teachers who claimed that the university shouldn’t be able to grant teaching degrees because it opposed gay unions. And, as the article outlines: at the time, students were required to sign an agreement not to engage in activities that were “biblically condemned,” including “homosexual behaviour.” The agreement is now known as the ‘Community Covenant’.
The controversy over the proposed law school is not so much the result of any official opposition -the Law Society of British Columbia, the Federation of Law Societies of Canada, and B.C.’s Advanced Education Ministry have all given at least preliminary approval- it is rather that the gay and human rights community questions the suitability of the university to teach supposedly neutral and unbiased Law, when it seems to have a fundamental difference in values from much of the society outside their walls. The Huffington Post article reports that the president of the university, Bob Kuhn, is up front about it: Kuhn said prospective students aren’t asked about their sexual orientation during the application process, and he said all students are welcome at the school — as long as they agree to abide by the community covenant. If a gay or lesbian or bi student wished to come to Trinity Western University and wished to comply with the community covenant as it’s written, then there’s no problem,” he said.
True, students that disagree with the tenets of the university need not apply –there is no compulsion at stake -merely a principle. But isn’t that what should matter the most? Surely those who accept principles that discriminate against minority positions must not expect neutrality at the end. If nothing else, the example it sets is not a balanced one.
My worry is not that an excellent academic institution like Trinity Western would not competently and rigorously adhere to all legal requirements, but more that the underlying spirit of its presentation would be framed in a context that does not reflect the diversity of the multicultural society it must serve; it is a madrassa that pretends inclusivity.
I’m sure that a graduate of the school would attempt neutrality in the real world. After all, she would be free to refuse a case if it conflicted with her values and refer it to a colleague who perhaps would view the issue in a different light. The law can be a demanding master.
And yet I can’t help but wonder if those less than democratic values that necessitated a ‘community covenant’ are the thin edge of a wedge that threatens to skew the defence of what we have come to regard as basic societal rights and nudge them into an unspoken yet contingent position again. Rights are fragile enough as is. Although guaranteed in law or constitution, they still require more than fear of punishment to ensure they are respected. We all have to feel they are important. And not just when there is no cost to us or society at large. Sometimes there are sacrifices required; sometimes we have to swallow our distaste and step back a little to think about the ramifications of not applying the right equally and under all circumstances.
But rights are about justice, not punishment; laws are about consensus not fear. And neither rights nor law should live in fear of circumstance. Even Shakespeare recognized this so many years ago and in such a different time:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.