Reading one of the lengthy historical discussions of anti-Semitism in Richard Rhodes’ The Making of the Atomic Bomb, I came across a section on how Jews made an agreement with Louis the Pious, the son of Charlemagne, to be granted legal protections in exchange for becoming the ruler’s property. Rhodes says that: “Their rights were thus no longer inherent but chartered.” (p.177 paperback)
This made me think about the distinction between how constitutional rights are described in Canada and in the United States.
The Canadian Charter of Rights and Freedoms “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It also describes such things as freedom of conscience and religion as “fundamental freedoms,” though it does not directly describe where ‘fundamental’ freedoms come from. Arguably, the preamble to the Charter, which says that Canada is “founded upon principles that recognize the supremacy of God and the rule of law” provides a clue about where the drafters think rights could come from, though it is ambiguous and unclear.
By contrast, the American Declaration of Independence states that it is a self-evident truth “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It seems clear what the drafters of this document thought about the origin of rights, though this raises the question of what their status and origin are taken to be within a secular state.
I have written before about how I don’t think there is anything inherent to human rights. They are not built into the structure of the universe, and they do not make themselves evident, whole and fully formed, when sensible people think about how human societies should be structured. Furthermore, they are often in conflict with one another, and a simple rights-based philosophy doesn’t provide much guidance on how to deal with situations where different rights-based claims are in competition.
Is it better, then, to have inherent rights or chartered ones? With chartered rights, there is a clear sense of what they are and where they came from. Potentially, there can also be explanation for why they are granted. We could, for instance, explain that freedom of speech exists in our society because we recognize the benefits it creates, and the harms associated with denying it. Inherent rights may, in a certain sense, be more robust. If we pretend that certain human rights really are part of the structure of the universe – or unambiguously derived from thought and logic – then we have a certain defence against the suppression of minority rights by the majority.
Of course, if we are worried about the masses being insufficiently cautious about the rights of minorities, we can express those concerns in a chartered framework. We can underline the value of protecting minority rights, and explain how only granting effective protections against majority bullying can those benefits be maintained.