Reviewed by Simon Halliday, University of Strathclyde, The Law School, and Conjoint Professor at the School of Law, University of New South Wales. Email: simon.halliday [at] strath.ac.uk.
One of the most striking features of the human rights field in recent times has been the extent to which human rights have become entrenched in domestic legal systems. From a UK perspective (from where I write) the Canadians seem ahead of the game. In 1961, against an historical background of endemic racial discrimination in Canada, the Ontario Human Rights Commission (‘OHRC) – the oldest such Commission in Canada – was established as an anti-discrimination commission. All anti-discrimination statutes were consolidated into a Human Rights Code to be implemented by the OHRC. Ten years later, age and sex discrimination were added to race and religion as prohibited grounds under the Human Rights Code. Discrimination on grounds of mental and physical handicap were added later, as were the grounds of pardoned criminal record (in relation to employment), and receipt of social assistance (in relation to housing), as well as race and gender harassment. The OHRC, still in operation, may hear complaints about rights infringements from individuals, may initiate investigations itself, and has an educational, research and policy development mandate. The OHRC, then, represents a good example of an increasingly popular and significant feature of our constitutional landscapes: human rights commissions (albeit one focused largely on freedom from discrimination) (also see Banakar 2003; 1998). The operations of the OHRC are the focus of this new and stimulating book by Rosanna Langer.
Langer begins her book with a quotation from Hon. James Chalmers McRuer, a former Chief Justice of the High Court of Ontario: “The fundamental protection of the rights of the individual is not so much in the substantive law as in the procedure by which it is administered.”
This sets up the predominant focus of her book which is an empirical examination of human rights protection. It also signals from the outset that Langer combines a Lipskyan interest in street-level bureaucracy with a socio-legal concern with (as it was once more frequently called) the ‘law in action.’ Langer’s interests lie in exploring and comparing lay comprehensions of human rights and the routine business of the OHRC’s implementation of the rights protections contained in the Human Rights Code. Through documentary analysis and interviews with OHRC staff, lawyers and complainants she describes citizens’ perceptions of human rights, the aims and ideologies of lawyers attempting to further the interests of clients who claim rights infringements, and the [*388] bureaucratic transformation of complaints into human rights ‘cases.’
Langer deftly describes the familiar stresses of public sector organisations which must try to balance their specific public service ideals with the demands of bureaucratic efficiency. For example, she paints a vivid picture of the difficulties faced by the OHRC’s front line staff. They receive 30 - 35 calls per day from complainants and so are required to keep the average telephone call within a 10-minute target duration. As she notes,
[w]hile it is difficult to say how much this differs from other work where government employees must deal with those expressing a complaint in a high volume environment, this volume is compounded by the sense that human rights enjoy or ought to enjoy pre-eminent importance. (p.41)
This point connects to an important theme of the book: the disjunction between complainant’s aspirations concerning human rights protections and the social reality of human rights as administered by the OHRC. Langer found that commonsense or lay understandings of human rights were considerably broader in scope than the specific prohibited grounds of discrimination and the social settings falling within the Human Rights Code’s ambit. Frontline staff, then, in addition to performing a standard gate-keeping function, also routinely had to take on the role of managing the expectations of complainants (for a similar analysis in a very different policy context, see Gilad 2008). Langer speculates that inflated lay aspirations may be traced to the expansive affirmation of human dignity articulated in the case law of the Canadian Charter of Rights and Freedoms. Regardless of whether she is right about this (and the point is not crucial to the book), her observation of the disconnect between lay aspirations and publicly administered human rights provides an excellent and grounded example of the potential disappointments of human rights when they are ‘domesticated’ within ordinary legal systems (see Schmidt and Halliday 2003). As Raine and Walker (2003) have pointed out, human rights can prove (at least to some) to be something of a “damp squib” in actuality.
Importantly, Langer also contrasts the social reality of human rights as administered by the OHRC with the perspectives of human rights advocates. She details the conflictual relationships between complainants’ lawyers/advocates and OHRC personnel. Her point here is that the realisation of human rights ideals plays out differently between these two groups. Definitions of discrimination and strategies for its elimination differ sharply. The professional interests of lawyers in securing for themselves an advocacy and representative role in the pursuit of human rights places them in an often antagonistic relationship with the OHRC. In particular, lawyers and advocates rarely seem to accept that human rights ideals can be met through any compromises required by the demands of managing a bureaucratic caseload within the context of limited resources.
Langer builds on her empirical evidence to explore the question of what is the ‘public interest’ in human rights enforcement and whether, even, it can be articulated. The competing perspectives [*389] of the various groups discussed above present the starting point for this discussion. Ultimately she concludes that the inevitable contestedness of the notion of ‘the public interest’ suggests that human rights remain a collective concern best represented in a public agency which can synthesize and implement the plurality of interests in policy and practice. She is critical, for example, of an enforcement regime which is limited to the direct adjudication of rights disputes. This, she argues, foregoes the benefits of preliminary “neutral” communicative interactions through the medium of the OHRC which open up the possibility of “contextual problem solving” (p.137). Following Merry (1990), she sees the adjudicative system as being potentially quite disempowering for users. She also suggests that it offers a narrower range of remedies, none of which necessarily engage the public interest. In many senses her book can be read as a defence of human rights commissions.
In assessing DEFINING RIGHTS AND WRONGS, let me state clearly that I enjoyed this book and think it makes an important contribution to knowledge. I do have a few criticisms to make, but I should stress that they are not too important. They can be dealt with fairly quickly. First, at times Langer overplays the gap in the literature which she seeks to fill. For example she claims that “in legal research little attention has been paid to the public administration of statutorily recognised rights” (p.xi); that “in legal research, there is little, if any, examination of the organizational stresses faced by administrative agents whose mandate is premised on public access” (p.41); and that “relatively few studies have looked empirically at the process of the construction of legal meaning by professionals and others” (p.47). Perhaps Langer has a doctrinal legal audience in mind. But these statements certainly appear surprising to a socio-legal reader and are by no means required to shore up the value of the book which, in my view, already stands on its own two feet.
Second, Langer could perhaps have been slightly more cautious in assessing the weight of her empirical data. Her interview data were gleaned from ten lawyers, nine OHRC staff and six complainants. It is a small study, in other words. This is not to diminish the book. But there is no harm in recognising the limitations of a narrow empirical base. She describes her account of the enforcement of human rights law as “highly nuanced” (p.xii). Her analysis is certainly rich, theoretically informed and unquestionably worthy of our attention. But in terms of an empirical analysis, this is possibly stretching things a little. There are some places in the text where a keener appreciation of the limited data could have offered a different shade on the analysis. For example, she contrasts her findings about the motivations of complainants in using human rights law with that of Bumiller (1987), another excellent book based on a narrow empirical base. Contrary to Bumiller’s thesis about the reluctance of those discriminated against to be deemed victims, Langer found that individuals sought legal resolutions to gain control over situations. The better truth may be, of course, that there is variety in how people approach and understand law around various issues (see, e.g., Ewick and Silbey 1998). [*390]
Overwhelmingly however, and notwithstanding the above points, I recommend this book. It is a short book (138 pages of principal text), but one which punches beyond its weight. In particular, Langer makes a very significant contribution in offering a bridge between the socio-legal literature on human rights and the public administration / administrative justice literature. Her discussion of the elusive nature of ‘the public interest’ in human rights enforcement is reminiscent (to this reviewer at least) of the literature around the inevitably contested nature of the notion of ‘administrative justice’ (see, e.g., Kagan 1978; Mashaw 1983; Adler 1998). She firmly grounds the debate about human rights and their domestic enforcement in her analysis of the empirical data and the social reality of public administration. Like Mashaw (1983), she asks, in relation to human rights, the difficult question of how to find the good within the constraints of the possible. This is an important question for human rights scholarship, particularly if her target audience is, indeed, the legal academy. Her book is an admirable and pithy contribution which offers much to those interested in human rights, discrimination, public administration and administrative justice.
Adler, Michael. 1998. ‘A Socio-Legal Approach to Administrative Justice.’ 25 LAW & POLICY 323-352.
Banakar, Reza. 1998. THE DOORKEEPERS OF THE LAW: A SOCIO-LEGAL STUDY OF ETHNIC DISCRIMINATION IN SWEDEN. Aldershot: Dartmouth Publishing.
Banakar, Reza. 2003. ‘When Do Rights Matter? A Case Study of the Right to Equal Treatment in Sweden’ in Simon Halliday and Patrick Schmidt (eds). HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT. Oxford: Hart Publishing.
Bumiller, Kristin. 1987. THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS. Baltimore: Johns Hopkins University Press.
Ewick, Patricia, and Susan S. Silbey. 1998. THE COMMONPLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.
Gilad, Sharon. 2008. ‘Accountability of Expectations Management? The Role of the Ombudsman in Financial Services’ 30 LAW & POLICY 227-253.
Kagan, Robert A. 1978. REGULATORY JUSTICE: IMPLEMENTING A WAGE PRICE FREEZE. New York: Russell Sage Foundation.
Mashaw, Jerry L. 1983. BUREAUCRATIC JUSTICE MANAGING SOCIAL SECURITY DISABILITY CLAIMS. New Haven: Yale University Press.
Merry, Sally Engle. 1990. GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING-CLASS AMERICANS. Chicago: University of Chicago Press. [*391]
Raine, John, and Clive Walker. 2003. ‘Implementing the Human Rights Act into the Courts in England and Wales: Culture Shift of Damp Squib?’ in Simon Halliday and Patrick Schmidt (eds). HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT. Oxford: Hart Publishing.
Schmidt, Patrick, and Simon Halliday. 2003. ‘Introduction’ in Simon Halliday and Patrick Schmidt (eds). HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT. Oxford: Hart Publishing.
© Copyright 2008 by the author, Simon Halliday.