There is much talk nowadays about the practical difficulties of multiculturalism (and of the rejection of tolerance by radicals promoting violence). With a shrinking world on our doorstep, integration of peoples of different cultures is preferable to ghettoisation and apartheid. Radicalisation is the byproduct of alienation which thrives where the legal system appears to be, or is, complex.
Integration – the antidote to radicalisation – will not be achieved by shouting louder or asserting the superiority of our societal norms. Instead, the key to the dialogue, without diluting our homegrown standards, is identifying and highlighting the identical behavioural norms which underpin the laws of all cultures.
But there will be no dialogue where it counts – on social media – unless the millenials have a better grasp of these shared human values. That generation has apparently forgotten, or perhaps never even heard, the old but timeless slogans with which our forebears rallied the cause of liberty.
All the tenets of the Western model of society are now reproduced in its laws. Strip out the small print and it is clear that the basic similarities between legal cultures outweigh the differences. It is not a competition. We have no need to talk of imposing conformity if the grundnorms of human society are the same the world over. The minutiae of the law may be opaque, but the measure of what is or is not lawful does not really need counsel’s learned opinion.
Ask any person in the street what the law is on any particular matter and you will almost always get an uncertain response. But this does not mean that there is any real disconnect between the law and the person; it is just that most people have an instinctive awareness of the general principles, if not of the minutiae, of the law.
Take one example: the formalities of contract. In 1988 Judge Costello decided, after days of evidence and legal argument, that Fyffes’ offer to sell their Irish Distillers shares to Pernod Ricard was binding because, with no contract in writing, after Pernod Ricard came back into the room and announced that they were prepared to accept the offer at 450 pence per share, “there was a spontaneous shaking of hands and Mr Flavin said ‘we are partners now’ “. An essay in semiotics perhaps but most importantly and obviously a universal standard, unambiguous.
The body of legal principle which is called the Common Law is composed of instinctive judgments, judgments on the basis of conscience, custom from “time immemorial” and (per Sir John Davies) “so framed and fitted to the nature and disposition of this people as we may properly say it is connatural to the nation”.
We are familiar with the perspective of ‘the man on the Clapham omnibus’, with the duty of care for one’s ‘neighbour’, with the measure of ‘reasonableness’. We don’t need to refer back to the Ten Commandments, scripture, religion, Roman law, the Statutes of Edward 1, the Napoleonic Code, the Treaty of Rome or any other Declaration or Convention.
Dress them up however you want, these are the layman’s yardsticks for good and bad behaviour.
The context needs to be the dignity of man. If primary school children are now being taught coding, surely secondary students should get an education in the principles of Common Law?
They can be told it is about good and bad and how to achieve them.
The Human Rights agenda is often cited as the checklist for admission to (Western) civilisation. Doing so heightens the differences in emphasis and overlooks common denominators.
Before the 1949 UN Declaration on Human Rights the preparatory commission (chaired by Eleanor Roosevelt) asked a group of philosophers from Western, Confucian, Hindu and Muslim cultures (Jacques ‘Natural Law’ Maritain, Harold Laski, Teilhard de Chardin, Mahatma Gandhi, Humayun Kubir and others) whether there were common principles to which all nations and cultures could subscribe, and in due course they reported that – somewhat to their surprise – there were a few common standards of decency (emphasis added) that were widely shared though not always formulated in the language of “rights”. Maritain wrote that “we agree about the rights, but on condition no one asks us why!”.
I believe ‘decency’ is an extremely employable word for the integration dialogue. It belongs to no religion nor is it to be found as a legal term of art in any legal order. It has an unambiguously human resonance. It is a behavioural yardstick impossible to define precisely but also impossible to misunderstand. Decency is a world brand. It is a Big Mac. For Norms.
You can subscribe to the ‘decency’ standard for human behaviour without subscribing to democracy as the gold standard by which systems of government must be rated.
Democracy, in practice, is by no means a ‘no-brainer’! The 1789 French Assembly declaration speaks of law as “the expression of the general will of the people” and of the right of every citizen “to participate personally, or through his representative, in its foundation”.
Whether by accident or design, we seem now to have government consisting of citizens,without real involvement, just getting whatever public services politicians and bureaucrats offer them; with politicians offloading difficult decisions to statutory agencies or regulators; or engineering with bureaucrats to avoid scrutiny of, and accountability for, the administrative mistakes of the past.
Indeed, if the Brexit vote is anything to go by, 52% of UK voters think their “democracy” in the EU is closer to the totalitarian end of the spectrum (government by unelected Mandarins) than to the self-governing end (for example, by referendum, issue by issue, on the Swiss model). Truly, democracy is a work in progress! Perhaps indeed it has stalled in the teeth of overwhelming global forces. It is only supranational government that can counter the forces of globalisation.
Nor is it necessary for all engaged in multicultural dialogue to sign up to the rights-based model.
Even in the West there is concern about whether rights should be central to progress. For some, the radically individualistic paradigm being read into Human Rights texts obscures the generosity of spirit which should be the starting point of interpretation and development. In 1989 Pope John Paul 2 criticised the UN declaration for omitting a recital of “the anthropological and ethical foundations of the rights which it proclaims”. His concern is that without knowing the source, the scope and direction of human rights jurisprudence might be wide of the mark. And then there is the debate about the desirability of economic and social as opposed to political and civil rights.
Civil and political rights are central to the Irish Constitution (1937). Of course certain rights are enumerated and the courts, as in many other countries, have (starting with Kenny J’s decision in the fluoridation case, Ryan v the AG 1965 and its discovered right to “bodily integrity”), established that others are unenumerated, waiting to be inferred by the courts. Writing extra-judicially in 1992 Supreme Court judge Niall McCarthy wrote of a “penumbra of unenumerated rights derived from man’s rational being and from time to time discerned by the court….the catalogue remains open”.
In 1996, the Irish Constitution Review Group (chairman TK Whitaker), perhaps alarmed by the sound of a floodgate opening, recommended that “further recognition of fundamental rights by the courts would be (confined to) those necessarily implicit in the rights expressly limited”.
So-called “equal rights” provisions are, even in the adventurous UN Convention on Human Rights, limited to the right not to be discriminated against on any of the grounds specified in Article 14. They are problematic at best. British-German political sociologist Ralf Dahrendorf pinpointed in a 1975 Reith Lecture, “the danger of becoming prisoners of our own good purpose”, and of “the new bondage brought about by a notion of justice as equality”.
He wrote that “a defence operation may be necessary to safeguard the beneficial effects of citizenship against the dangers of its perversion by perfection”. In short, the unthinking enforcement of equality as a human right may be destructive of the newly-won liberty of the individual.
In the Irish Constitution, “equality” is not a standalone right. it is not a mission statement. It is only a guarantee that the law will not discriminate between individuals or classes “by reason of their human attributes or other ethnic or racial, social or religious background” (per Judge Walsh). The text of article 40.1 refers to equality “before the law”. Professor John Kelly in the first edition of his great book, ‘The Irish Constitution’ (1980), gave the chapter the title “Equality before the Law”, but the editors of later editions have omitted the qualifying words and so altered the narrative for later generations.
More definitively, the (seven judge) Supreme Court’s equality analysis in the Fleming case in 2013 was straightforward:
“If a law makes a distinction on its face between citizens it may be necessary, depending on its context, to inquire into its justification.. classification by reference to age or disablility or gender (or on any other basis) may be justified by democratic legitimate purpose… or may be suspect”. The Court also stated that “it is often the case that neutral laws will affect individuals in different ways: in the absence of impact on a fundamental right that does not normally give rise to any unconstitutionality”. In other words only fundamental rights are protected by the equality guarantee. You may not be discriminated against by laws which affect your fundamental (as opposed to other) rights.
Judge Dónal Barrington once described equality before the law as “probably the most difficult and elusive concept contained in the Constitution”. We could debate the merits of a broader interpretation of equal rights another time, but at present let’s not complicate things. Maritain suggested that multiculture philosophers not be asked why they were able to agree across all cultures.
They agreed about decency.
Take that agreement and build.
Instead of dialogue with preconditions like democracy and equality, we should instead highlight the common ground of decency. Concomitantly, behaviour which is not ‘decent’ cannot be tolerated: there can be no politically-correct tolerance when radicalised zealots adopt terror as a modus operandi.
It will be argued that this analysis is over-simplistic: that it is naive. But we must deal with radicalisation by recognising the essential superficiality of the radicals’ view of the world and its issues. We cannot cure radicalisation with doses of sophistication. We must instead stick to big-picture themes which invite universal recognition: decency of behaviour is a norm of all societies. We need to see it taught in schools and broadcast on the internet. Indeed from the rooftops.
Edmund Honohan, Master of Ireland’s High Court, is writing in a personal capacity
