Restoring the ‘human’ in ‘human rights’: personhood and doctrinal innovation in the UN disability convention

Abstract

‘What is needed nowadays is that as against an abstract and unreal theory of State omnipotence on the one hand, and an atomistic and artificial view of individual independence on the other, the facts of the world with its innumerable bonds of association and the naturalness of social authority should be generally recognized, and become the basis of our laws, as it is of our life.’ Recovering the human ‘Human rights’ – here are two words expressing two different normative domains. Most simply assume that the two are mutually reinforcing, mutually implicated by each other, coterminous and coeval. Everywhere in the world, first-year law students are routinely told that we enjoy human rights simply because we are human. The question of whether there are any essential criteria of being human or of ‘personhood’ and, if so, what they are, is left dangling as if solved by the conjuncture of ‘human’ with ‘rights’. That is, rights-talk tends to cloud our view of what it means to be human. And rights tend to impute a certain view of humanity – one that is not necessarily tied to observable reality. Another result is the absence of any clear toeholds in the slippery debate about whether there are any non-human ‘persons’ (e.g. animals or even the earth) and, if so, whether they are the proper subject of rights.

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