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Vol. 4, No. 5, 2005
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Robert J. Lewis
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Julius 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?

The principal 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 it.

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.

Canada, more 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.

The preoccupation 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 choice.

Unfortunately, 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.

Other thinkers 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.

Human beings 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.

Freedom is 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 now face.

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