This article was first publishe on Dissident Voice.
By Denis G. Rancourt, PhD
Summary: I briefly describe the anthropological
origin and recent statutory embodiments of human rights of individuals. I
show that the modern “democratic” state moderates the rights of
individuals by both: (1) violating the said rights in order to maintain
and enforce the societal dominance hierarchy, and (2) preventing
disproportionate violations, to avoid inciting rebellion. The courts are
charged with these tasks but must not appear to represent an oppressive
state. The courts’ practical solution has been to develop the legal
artifice of “balancing conflicting rights”, where the court presents
itself as a neutral arbitrator providing “access to justice”, rather
than the enforcer that it is. I develop several examples involving the
human rights of freedom of thought, expression, and movement, and the
right to a fair trial. I show that the said legal artifice is best
dismantled by a method of compartmentalization where a given act
producing harm that is a crime (or offence or civil liability) is
compartmentalized into its distinct elements that either constitute the
crime or are human-rights freedoms that are not in play at trial or in
sentencing.
Rights to limit freedom
In a simple small-scale pre-civilization society, one has the
“rights” of what is culturally accepted. Transgressions beyond the
accepted norms are punished or otherwise corrected. Thus, there are no
“individual or human rights” in such circumstances.
While simple small-scale societies have tight internal cohesion,
historically such pre-civilization societies were frequently subjected
to violent inter-tribe warring, which was a source of massive physical
insecurity for the individual, compared to relatively small risk of
lethal harm in large post-civilization societies.
Large post-civilization societies have the advantage of dramatically
reduced warring risk to the individual, and the disadvantage of
institutionalized structures regimenting individual behaviour and
associations.
The concept of an accepted or statutory right that is intrinsically
held by the individual arose in large post-civilization societies that
employ institutions to maintain hierarchical order and class structure.
For example, citizens of national states are given statutory (by law)
procedural protections against abuses of the societal dominance
hierarchy. Likewise, individuals on a globalized Earth are given “human
rights” by various international instruments, such as the
Universal Declaration of Human Rights, 1948, or the
International Covenant on Civil and Political Rights (ICCPR). Even warring itself is regulated to be less barbaric by such statutes as
The Geneva Conventions, 1948, and their
Additional Protocols.
In application, “individual rights” are institutional instruments
used both to control individuals and to prevent systemic abuses against
individuals, in order to stabilize and protect the class-hierarchical
structures of post-civilization society, which are hugely beneficial to
the human species.
As such, the said instruments must be designed and applied in a
manner that is consistent with their actual function, in all the various
circumstances where individual autonomy can threaten the established
hierarchy and where systemic abuse can nurture revolt. This is the task
of law makers (members of parliament) and tribunal and court decision
makers (judges and arbitrators), following established recommended
practice (referred to as “principles”).
Here, “bad laws”, for example, are laws that unnecessarily infringe
on individual liberty, where the hierarchy is not at risk, or laws that
create overwhelming resentment, or laws that limit the abilities of
individuals to organize and adjust in ways that stabilize the hierarchy.
“Good laws” maximize the stability of the hierarchy, by balancing
allowed individual freedom against predatory class interests, while
minimizing violence to individuals. A constant challenge is corruption:
influence peddling to make socially pathological laws that advantage
influential groups and dominant classes while weakening the societal
hierarchy as a whole.
Since all of this “lawyering” needs to be invented in practice, there
is the possibility that “principles” of application are not optimized
or end up containing paradoxical contradictions. I argue that such is
the case with individual rights that are considered “human rights”, and I
offer a solution. I illustrate with the fundamental human rights of
freedom of thought and freedom of expression.
Freedom of thought, belief, and opinion
Freedom of thought or freedom of belief is the right to have whatever
thoughts or beliefs one has or wishes to have. Throughout much of
post-civilization history, specified thoughts and beliefs have been
considered sins or crimes, even if not manifestly expressed. Controllers
sought out and punished or purged thoughts and beliefs that were judged
to be threatening to the established order, to the overarching
hierarchy.
In modern times in Western societies, “thought crimes” are largely
frowned upon, and it is mostly recognized that thoughts can only be
threatening if they are expressed or acted upon. This recognition is
enshrined in the international law, where in the jurisprudence of the
ICCPR it is unequivocally and expressly determined that freedom of
thought or belief (opinion) is an absolute right of the individual,
which cannot be violated by a state actor under any circumstances.
In particular, one cannot be forced to disclose one’s thoughts or
beliefs. This relates to a criminally accused person having an absolute
right not to testify or incriminate himself or herself.
The explicit wording of the international law is
:
Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction.
Freedom of opinion extends to the right to change an opinion whenever
and for whatever reason a person so freely chooses. No person may be
subject to the impairment of any rights under the Covenant on the basis
of his or her actual, perceived or supposed opinions. All forms of
opinion are protected, including opinions of a political, scientific,
historic, moral or religious nature. It is incompatible with paragraph 1
to criminalize the holding of an opinion. The harassment, intimidation
or stigmatization of a person, including arrest, detention, trial or
imprisonment for reasons of the opinions they may hold, constitutes a
violation of article 19, paragraph 1. (reference numbers removed,
emphasis added)
Many state constitutions contain equivalent statements or implied
rule, and all signatory states are required to make their laws
consistent with this right.
Needed consistency in implementing absolute right of free thought
In practice, however, even this expressly absolute right is at odds
with the criminal-law practice of inferring “motive” as a factor
determining sentencing. In this way, wilful murder judged to have been
premeditated is punished more severely than wilful murder decided in
immediate circumstances, which in turn is punished more severely than
murder judged to have been unintended. Likewise, crimes judged to have
been politically motivated (“terrorism”) are judged far more severely
than the same crimes that are “merely criminal”.
Thus, there is an apparent contradiction between the right to freedom
of thought and the practice of states to infer thoughts from evidence
in determining sentencing. There is the added and significant problem
that in-court arguments about (and evidence used to support) inferred
negative thoughts create a trial environment that is prejudicial against
the accused regarding guilt of the physical crime itself. The legal
culture of the adversarial system does nothing to solve this fundamental
problem, which is compounded by media reporting.
A solution is to dissociate the physical crime (e.g. damage to
property, bodily harm) from the thoughts or motives of the accused, and
not to allow thoughts and motives to be relevant in the courtroom. This
would remove the state from the business of inferring thoughts and would
improve the system’s ability to find the knowable truth. It would make
the system stick to physical reality, with fewer unforeseen negative
societal consequences, and less potential to “run out of control” as
practice evolves and societal misdirections are experienced. It would
also procedurally prevent indulging the media in its pathological
practice of seeking mob reactions based on emotional imagery.
Thus, we see that the expressly absolute right of freedom of thought
and belief (opinion) (not to be confused with the right of freedom of
expression) is preserved by not allowing a thought component in any
crime or offence that is punishable by the state, or in any civil case
for damages.
The solution was achieved by admitting that the impugned event (e.g.
murder) has separate components or elements that can be
compartmentalized, and that the state can solely be concerned with one
of the compartments. Here: the physical action(s) that led to the death
of a person, in one compartment; and the thoughts, beliefs, or motives
in the mind of the accused who is alleged to have made the said
action(s), in a separate and distinct conceptual compartment. The
state’s response is concerned solely with reparation, prevention, and
deterrence regarding the physical action(s). Any punishment component
intended to change the mind of the accused person, and having no
demonstrated preventative or deterrence value, has no place in the legal
system of a state that admits an absolute right of freedom of thought
and belief.
More examples below illustrate how the convoluted legal landscape of
allegedly “competing rights” can be made rational by applying conceptual
compartmentalization in the analysis of any action or event that both
attracts an accepted fundamental right and is the cause of harm
constituting a crime, offence, or civil liability.
Applications of compartmentalization
Consider the canonical example that one cannot scream “fire” in a
crowded cinema. The right of freedom of expression is implicated, as is
the predictable harm or high risk of harm caused by the expression, in
circumstances where the expression will likely produce a stampede
response. The classic treatment of this example is for the decision
maker to expound that “One person’s freedom ends where another person’s
freedom begins”, a phrase which captures the jurisprudence of
“conflicting rights”.
Although “jurisprudence” makes the idea sound scholarly, actually the
said idea has its origins with nineteenth century US prohibition
activists. In particular, an 1887 newspaper in Atlanta quoted from a
speech in favour of prohibition laws as
:
The only leading argument urged by the
anti-prohibitionists in this campaign for keeping open the bar-rooms, is
personal liberty. A great man has said, “your personal liberty to swing
your arm ends where my nose begins”. A man’s personal liberty to drink
whisky and support barrooms ends where the rights of the family and the
community begin.
The problem can be resolved without reference to “competing rights”,
as follows. Screaming “fire” in a crowded cinema has two separate
compartments: One is the expression, including the choice of words and
the full quality of how the words are delivered (loudness, tone,
emotional expression, gestures, etc.), while the other is the offence of
choosing to make that expression in physical circumstances where there
is a high, predictable, and imminent risk of serious physical harm or
death.
The said offence is the crime of having significantly risked or
actually caused harm or death. By this compartmentalization, the right
of freedom of expression is not in play, is not in conflict with the
rights of others not to be assaulted (safety), and need not itself be
limited (such as forbidding the word “fire” to be uttered in a cinema or
elsewhere, or gagging the convicted person from ever again using the
word “fire”). The state will charge the accused with the harm that he or
she caused, irrespective of the method chosen to produce the harm.
Murder by gun or knife or poison or booby trap or by predictable
consequence of any action, is always murder with the same consequence.
The violated right to life in committing murder has nothing whatsoever
to do with one’s “right” to carry a gun, own a knife, buy rat poison,
test booby traps, or scream words.
Similarly, the flailing fist crime can be compartmentalized into the
freedom of moving one’s body, as distinct from the offence of striking
another person. Intent and carelessness can both produce the same bloody
nose, and freedom of body movement is not in play in either. There is
no rational advantage to posit that the right of body movement
“conflicts” with the right not to be assaulted (safety). The right of
body movement is not itself infringed by the state addressing the
alleged assault, and is not relevant to the legal analysis of the crime.
The right of freedom of expression gives rise to several more examples of such posited false “conflicts”:
(1) An employer fires an employee and then makes false negative
statements about the employee to other employers. The employer’s freedom
of expression is not in play in making the false negative statements.
The post-firing offence is the predictable material harm (economic and
personal hardship) done to the former employee, in the circumstances of
the employer’s power and influence. The concept of freedom of expression
need never enter the legal analysis, and should not be entertained by
the court. Likewise, there should be no protection of “privilege” for
the employer. The offense either occurred or it did not, and discovery
of the facts should not be impeded by any legalistic shroud of secrecy.
(2) An army general orders a platoon to decimate an entire village of
civilians. The general’s human right to freedom of expression is not in
play. The crime is the war crime that is a predictable consequence of
the general’s order.
(3) A publisher prints or posts pornography, such as images of full
nudity and explicit sexual acts with humans or other animals or
whatever. Free expression is free expression. A rational addressable
offence must be based on predictable, real and demonstrated harm to a
specific individual (victim). Broad and non-specific community norms or
morals cannot legitimately be used to silence explicit sexual
expression, or else a new class of victimless and bloodless offence has
been created, which makes the human right of the individual to freedom
of expression meaningless. But allowing such an offence, using founded
or unfounded arguments about harm to children from exposure and so
forth, simply defines the said new offence as the relevant compartment
for legal examination. As such, within that questionable exercise,
freedom of expression is not in play and there is no benefit to posit
“conflicting rights”.
(4) A pamphleteer publishes material that is said to attack an
identifiable or self-identified group (gay bashing, Holocaust denial,
etc.). Again the rational and compartmentalized legal analysis must be
focussed on defining the new victimless and bloodless offence in which
the undemonstrated direct or indirect “harm” is broadly distributed to a
group. The indirect route typically involves the impugned expression
“causing” the said group to be “subjected to hate” from unspecified
individuals in the broad society. Once this creative and non-trivial
legal task is achieved, the right of freedom of expression is not in
play. The only legal decision is whether the said new offence, as
defined by statute or common law, is proven to have been committed by
the accused, actual and demonstrated harm or not. Lip service about
freedom of expression or “conflicting rights” is of no legal consequence
whatsoever.
(5) Likewise, the question with child pornography is not one of
freedom of expression. Rather, it is a question of criminal harm to a
child, and support for an industry of criminal harm to children.
Regarding possession, there should be a significant and meaningful
connection between “support for the industry” and the actual harm to the
child victim for sentencing to be justified. This opens the door to the
crime of consumer “support for the industry” for any industry that is
demonstrated to cause significant harm to actual persons. There is no
lack of such industry, both legal and illegal. Nonetheless, once any
such “crime” is defined, no fundamental human right is in play. However,
“consumer freedom” certainly acquires a new meaning.
“Competing rights” judicial whitewash
My point about compartmentalization is not peripheral. Pronouncements
of the highest courts addressing human rights are consistently replete
with the fallacy of “conflicting rights”. For example
:
Resolving Competing Charter Rights
33 The proper approach to the problem created by a
conflict in the protected rights of individuals was outlined by the
Chief Justice in Dagenais, supra. After stressing that Charter
rights are of equal value, he continued as follows, at p. 877: When the
protected rights of two individuals come into conflict, as can occur in
the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.
34 I have gone to some length to stress that Charter
rights are not absolute in the sense that they cannot be applied to
their full extent regardless of the context. Application of Charter values must take into account other interests and in particular other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case in that the conflicting rights are protected under the same section of the Charter.
35 Applying the foregoing to the question posed at the
commencement of this analysis, the appropriate choice of the three
solutions is readily apparent. The first option would allow the right
to silence to trump the right to full answer and defence. This would
apply one right fully in complete disregard of another equal right.
Similarly, the second option would allow the right to full answer and
defence to trump the right to silence. This again is counter to the
approach which was approved in Dagenais, supra, in that it
applies one right in absolute terms to the detriment of another equal
right. The third solution which strikes a balance between the two is
the correct approach. It remains to determine how the two rights can be
reconciled in order to give the fullest respect possible to the Charter values which underpin these rights.
Actually, the latter case is a straightforward one where the state
upheld an infringement of a criminally accused person’s human right to
pre-trial silence. The “balancing of rights” approach used was merely a
pretext to condone the state’s violation of allowing pre-trial silence
to serve as evidence of guilt or credibility. The dissenting opinion of
Justice McLachlin did not engage in the dubious “balancing” (see para.
43 of the ruling).
On the other hand, when the court saw its “right to administer
justice” (framed as the right of litigants to access justice) challenged
by citizens’ “right to protest” against the government’s court itself,
in the form of a picket line, then the machination of “balancing rights”
somewhat melted away, and the same court upheld an injunction by
expounding
:
71 … The Charter surely does not self‑destruct in a dynamic of conflicting rights. The remarks of Salmon L.J. in Morris v. Crown Office, supra,
at pp. 1086‑87, although not made with reference to an entrenched
constitutional right, are still apposite. The appellants had been found
in contempt for having disrupted a trial to which they were not parties
by staging a protest, shouting slogans and scattering pamphlets: … Every
member of the public has an inalienable right that our courts shall be
left free to administer justice without obstruction or interference from
whatever quarter it may come. Take away that right and freedom
of speech together with all the other freedoms would wither and die,
for in the long run it is the courts of justice which are the last
bastion of individual liberty. The appellants, rightly or wrongly, think
that they have a grievance. They are undoubtedly entitled to protest
about it, but certainly not in the fashion they have chosen. In an
attempt, and a fairly successful attempt, to gain publicity for their
cause, they have chosen to disrupt the business of the courts and have
scornfully trampled on the rights which everyone has in the due
administration of justice; and for this they have been very properly
punished, so that it may be made plain to all that such conduct will not
be tolerated‑‑even by students. (Emphasis in the original.)
Thus, here the court abandoned “conflicting rights” and “discovered”
one of those rare legal gems, an example of an “absolute right”, which
need not be balanced by some intricate accommodation. The particular
effectively absolute right is not a human right. Rather it is a “right”
for the state to operate absolutely without protest or disruption. The
tangential true human right is the individual’s right to a fair trial,
which is the foundation of the open court principle that is directly in
issue when the court, by whatever procedure, interferes with public
participation in its process…
The judicial ballad of “rights” is thus truly intricate: in the
practice implicating human rights of the individual, it is largely
sophistry, intended to smooth over the state’s violations by appealing
to a false compromise alleged to be justified. Typically, the said
“balance” opposes a true human right of an individual to an alleged
“right” of the state to violate the human right of the individual, while
casting the state’s “right” as directly arising from or derived from
different human or accepted rights of other individuals.
In Canada, an established rights-delimiting exercise is the so-called
Dagenais/Mentuck
test for court-ordered publication bans, which is said to balance the
conflicting rights of media publication (partly derived from the human
right of freedom of expression, because without access to information
expression is limited) and a fair and public trial, although the latter
consideration is actually more about disruption of the state’s trial and
the little-understood and unpredictable phenomenon of
public-information influence on the jury. The test states
:
A publication ban should only be ordered when: (a) such
an order is necessary in order to prevent a serious risk to the proper
administration of justice because reasonably alternative measures will
not prevent the risk; and (b) the salutary effects of the publication
ban outweigh the deleterious effects on the rights and interests of the
parties and the public, including the effects on the right to free
expression, the right of the accused to a fair and public trial, and the
efficacy of the administration of justice.
Here, we see the compartmentalization that I am proposing: in fact,
if branch-(a) is satisfied, then the decision has entirely been made and
branch-(b) is irrelevant. The court already considers the “proper
administration of justice” to be an effectively absolute “right” of the
state. The word “necessary” is a directive to judges not to overdo it.
Once the judge has made the determination of what is necessary, then no
other consideration of “rights” is relevant, whether they are true human
rights or not.
Therefore, we see that in all the situations of “conflicting rights”
reviewed above, in which the court contemplates limiting a true human
right of the individual (thought, expression, freedom, life), the lip
service about “balancing rights” is really just a cover for the state’s
decision to limit the said human right of the individual, either
minimally or disproportionately. The jurisprudence about “balancing
rights” is simply a guide for the trial judge, warning her that she is
in circumstances where she is enforcing infringement of a human right,
and therefore must be careful only to apply the court’s discretion to
the degree “necessary” or accepted by current societal “norms”.
Defamation law Neanderthal nonsense
Another class of cases where the artifice of “conflicting rights” in
free expression occurs is in the vast area of defamation law. Here the
courts contemplate “balancing” to true human right of freedom of
expression of the individual with a “right” of a plaintiff to “protect
his or her reputation”. This is problematic because “reputation” is
opinions that non-specific persons at large (non-parties to the
litigation) have about the plaintiff, and the psychology of opinion
formation is unknown, complex, and highly variable.
Defamation law, unlike the tort of injurious falsehood, does not
require actual harm to be proven. Damages from harm to reputation are
presumed if the words, judged sufficiently offensive, were published.
Millions of dollars can be awarded without any evidence for actual or
special damage being presented. There is no cap on the so-called general
damages that can be awarded. Malice, also, is presumed, in that intent
to harm is irrelevant; as is falsity because the defendant has the onus
to prove truth, or another common-law defence. Such is the common law
tort of defamation.
Defamation law is the ultimate instrument of the rich and powerful to
silence critics, and it has no logical justification, outside of
injurious falsehood tort requirements, beyond the plaintiff not liking
what has been expressed by the defendant. A full state-condoned and
state-administered litigation can be brought to bear on the defendant,
without the plaintiff having any onus to argue actual damage, intent to
harm, or falsity, while the entire litigation evolves in the nebulous
realm of “reputation” that is unquantifiable and need not be quantified.
There is not even a legal requirement that the “reputation” be
demonstrated to have decreased as a causal consequence of the
defendant’s expression complained of, and the plaintiff has discretion
to exclusively target any person(s) in the publication chain (author,
editor, publisher, re-seller, broadcaster, etc., or anyone who repeats
the words complained of). Any incident of repetition or republication,
by anyone, of exactly the same words complained of, which could have
been originally published decades ago, is a new legal defamation event
liable under law.
This is the beast that the courts find can reasonably be opposed to
the human right of freedom of expression, in a “balancing” exercise
between “conflicting rights”. It is no wonder that the common law of
defamation in Canada is demonstrably noncompliant with international
law, and with Canada’s obligations pursuant to the ICCPR.
With defamation law, my compartmentalization approach is applied
straightforwardly. Once the offence of defamation is defined by the
common law, no matter how contrived and problematic, the only question
becomes “Has the offence been committed?”. If yes, and the defendant has
not proven a defence specified by the common law, then the defendant is
liable. The human right of freedom of expression is simply not visited
and is irrelevant. Lip service may have been paid to the said human
right in elaborating the limited and specified allowed defences, and
that is it.
So, if one is prepared to define a civil offense such as defamation,
and to only adjust allowed defences, then one accepts that one can be
punished, and repeatedly punished, for words, by those with the means to
make lawsuits, while not being barred by physical force from exercising
one’s right to freedom of expression
:
2 But freedom of expression is not absolute. One
limitation on free expression is the law of defamation, which protects a
person’s reputation from unjustified assault. The law of
defamation does not forbid people from expressing themselves. It merely
provides that if a person defames another, that person may be required
to pay damages to the other for the harm caused to the other’s
reputation. However, if the defences available to a publisher
are too narrowly defined, the result may be “libel chill”, undermining
freedom of expression and of the press.
3 Two conflicting values are at stake — on the one hand
freedom of expression and on the other the protection of reputation.
While freedom of expression is a fundamental freedom protected by s.
2(b) of the Charter, courts have long recognized that
protection of reputation is also worthy of legal recognition. The
challenge of courts has been to strike an appropriate balance between
them in articulating the common law of defamation. In this case, we are
asked to consider, once again, whether this balance requires further
adjustment. (Emphasis added.)
Actually, the above (emphasized) statement of the Supreme Court of
Canada is misleading because, in practice, following findings of
liability for defamation judges routinely make permanent injunctions
(permanent gag orders) against repetition, and against even unknown
future expression, and violations of these injunctions have been
punished by jail sentences (See Footnote No. 9).
State obligation to abolish defamation law
In contrast, given state obligations pursuant to the ICCPR, any
reputational-harm limitations to freedom of expression must be codified
in law, and follow “strict tests of necessity and proportionality” (See
Footnote No. 9). Relevant questions become: When is it necessary to
protect an individual from actual damages caused by loss of
“reputation”? (An employer-employee example is given above.) Is it ever
necessary to protect a person from unspecified opinions at large, which
do not demonstrably cause actual and quantifiable damages? Is it in the
public interest to pursue such legal exercises?
I think we must recognize that the human right of freedom of
expression is meaningless in a s tate that allows the common-law tort of
defamation. The tort of injurious falsehood, by comparison, is
workable, and logically accommodates compartmentalization, where the
plaintiff has the onus to prove malice (intent to harm with expression
known to be false), falsity, and actual or special damages, in order to
establish the offence. However, the tort of defamation is a legal
obscenity that thrives in the swamp of unspecified negative opinions
about the plaintiff, presumed to be held by unspecified persons at
large, who are non-parties to the litigation. The said unknown opinions
are the “harm to the reputation”, and they are presumed to have been
“caused” by the impugned expression of the targeted defendant. Thus, the
layers are distant, unknown, and impossible to causally connect.
Defamation law is a sham that should be abolished. It is inherited
from less-democratic times in the history of civilization, and it
supports a wasteful legal industry that is harmful to society.
Conclusion
There are no rights that legitimately conflict with and must be
balanced against fundamental human rights. There is only a state that
wishes to indulge itself or privileged sectors of society with limiting
the human rights of individuals. The courts have the double practical
task of preventing the state’s disproportionate or intolerable
violations of human rights, while also enforcing the thus measured
violations of human rights. Rather than being transparent about the true
nature of this task that is meant to stabilize and enforce the societal
dominance hierarchy, the courts have developed the device of
“balancing” rights alleged to be held by different members in society,
thereby creating the illusion that the court is a mere arbitrator giving
“access to justice”, rather than an enforcer.
Endnotes