H. Grey is a Canadian lawyer and professor and one of Canada's leading
civil libertarians and human rights advocates. He defended the French
version of Margaret Atwood's The Handmaid's Tale in a broadcast
on Radio-Canada in 2004.
In recent years,
conservative movements have made deregulation a central part of their
programme. We have seen much deregulation in the field of transportation,
foreign investment and other areas of the economy, some of it successful
but much of it highly questionable. Despite the many failures, the urge
to deregulate remains strong. Is such deregulation desirable, or is
it merely a partisan proposal designed to reduce social spending and
benefit the wealthy?
arguments put forward in favour of deregulation are economic efficiency
and the need to augment individual freedom. The first of these claims
is not difficult to refute. However, the second has much to recommend
it. Individual freedom needs a strong defence in an age of conformism,
growing severity and computerized records which prevent anything from
being erased or forgiven. Here, however, we encounter a paradox.
Since the early
1980s when the conservative wave swept the English-speaking world, large
portions of the economy have been deregulated. Yet, individual freedom
of action has continued to decline as the governments increased or tried
to increase controls in matter of security, pornography, criminal law
and embarked on various fads such as the anti-smoking campaign. The
result has been on the one hand, the promotion of inequality and privilege
in the economy and, on the other, a decline in the individual’s
opportunity to dissent or to act in accordance with his or her conscience
in everyday life.
There are many
examples. The anti-smoking campaign, while justified on public health
grounds has often degenerated into a righteous crusade which subjects
the violators to humiliation and discrimination far in excess of any
justification. Professional bodies have extended regulation to minute
aspects of the practice of their members and have increased the severity
of penalties, thus diminishing the traditional freedom and autonomy
of the liberal professions. A new Puritanism has colored our attitude
towards sex and pornography. Despite the acceptance by society of pre-marital
relations and homosexuality which used to be repressed, there is a worrisome
tendency to examine and condemn sexual conduct or expression. The dearth
of medical resources has led to an increase in petty and inflexible
rules in health services. We are afraid to allow exceptions to rules
even, though exceptions are a necessary safety valve in a free society.
It is now difficult
to do or say anything at all without encountering complex rules, regulations
and directives, most of them unnecessary. Moreover, the consensus of
the 1960s to the effect that rules should sometimes be disobeyed has
given way to a dour rejection of any non-conformism. Criminal law has
become more severe, not only in the punishment of major crimes, but
in the enforcement of picayune rules and in the keeping of records which
in effect make the most trivial conviction a devastating blow to an
accused’s future. Security, which is a legitimate concern, has
also lowered our sensitivity to individual rights and has led to injustice
towards immigrants and visitors. The rules of civil procedure, which
had been relatively relaxed for three decades, have suddenly been resurrected
before the Courts and have turned the practice of law into a daily calculation
of myriad deadlines. Political correctness has made free speech risky
in many situations. Schools and universities have become disciplinarian
and rule-bound. Indeed, it is fair to say that, whenever we encounter
a problem, our instinct is to make new rules and regulations to solve
In short, we
have de-regulated where we should not have, in areas of economics and
distribution of wealth. Yet, we have intensified non-economic regulation
and surveillance, thus stifling freedom. Moreover, various lobbies have
also contributed their share by promoting “collective” rights
over individual ones and by showing constant alacrity to sacrifice freedom
for their pet schemes.
than most societies, is menaced by identity politics, by claims from
ethnic, religious and other similar lobbies for a constitutional status.
One of the ways to increase individual freedom and moral choice is to
promote a sense of citizenship without major intermediate identities
between the individual and the state. Our own sense of right and wrong
is a safer guide than loyalty based on religious or ethnic identity
which tend to favour restrictions of liberty in the perceived interest
of the group.
with security and the stifling conformism of our times makes it necessary
to bring individual freedom and moral choice back to the centre of the
stage. Collective goals are not a legitimate excuse for regimenting
our lives. Nor is it necessary to apply rules uniformly and to avoid
exceptions. One could argue that exceptions are essential for moral
in recent years, our society and even our courts have shown an unfortunate
deference towards non-economic authorities, professional bodies, municipalities,
immigration officials and the police. A return to a salutary scepticism
about the exercise of power and those who wield it is desirable.
Even in the
economic fields, it is dangerous to conclude that redistribution of
resources and promotion of social justice makes individual freedom irrelevant.
It is possible to reduce bureaucracy, to simplify collective agreements
and tax statutes, and to streamline medicare and education without reverting
to market inequities.
It is important
to liberate individual freedom from certain myths which have weakened
it. Some have viewed protest movements and non-conformism as anti-democratic
because the rules are ultimately made by elected representatives. They
forget that democracy is far more than mere majoritarianism which assumes
that the greater number is always right. It is also freedom of conscience
and dissent even in the face of a disapproving majority.
have considered individualism as inimical to social justice and to the
dubious “collective rights” or “collective claims”
that the lobbies have promoted. Yet there is nothing more dangerous
than control and regulation without the safety valve of individual conscience.
Indeed, those who promote economic redistribution must be even more
sensitive to the issue of freedom than others because their plans necessarily
imply a considerable measure of state intervention and state power.
The history of the rise and fall of communism illustrate the perils
of regulation without liberty.
are unique in their capacity for moral thought and action. Unfortunately,
they are also capable of extreme cruelty and atrocity, some because
of a cruel disposition, but more because of a profound belief that rules
imposed by their nation, by their religion or by the law, must be fully
obeyed. Excessive regulation at the same time limits the scope of autonomous
moral decision-making and increases the chance of injustice in the name
of the rule of law.
thus central to our values. While this writer believes that social justice
is equally central, he also submits that citizens from all sides of
the political spectrum can and should work together in defence of individual
conscience and liberty and against the stifling regulations which we