Human Rights Law and Personal Identity

Jill Marshall

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781134443338
• Edition: 1
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

This book explores the role human rights law plays in the formation, and protection, of our personal identities. Drawing from a range of disciplines, Jill Marshall examines how human rights law includes and excludes specific types of identity, which feed into moral norms of human freedom and human dignity and their translation into legal rights.

The book takes on a three part structure. Part I traces the definition of identity, and follows the evolution of, and protects, a right to personal identity and personality within human rights law. It specifically examines the development of a right to personal identity as property, the inter-subjective nature of identity, and the intercession of power and inequality. Part II evaluates past and contemporary attempts to describe the core of personal identity, including theories concerning the soul, the rational mind, and the growing influence of neuroscience and genetics in explaining what it means to be human. It also explores the inter-relation and conflict between universal principles and culturally specific rights. Part III focuses on issues and case law that can be interpreted as allowing self-determination. Marshall argues that while in an age of individual identity, people are increasingly obliged to live in conformed ways, pushing out identities that do not fit with what is acceptable. Drawing on feminist theory, the book concludes by arguing how human rights law would be better interpreted as a force to enable respect for human dignity and freedom, interpreted as empowerment and self-determination whilst acknowledging our inter-subjective identities.

In drawing on socio-legal, philosophical, biological and feminist outlooks, this book is truly interdisciplinary, and will be of great interest and use to scholars and students of human rights law, legal and social theory, gender and cultural studies.

Part I

Whose identity and what rights?

1 The identity of the person in human rights law

Legacies of the past

In seeking to legitimise or justify the legal regulation of human lives, an account of the essence of our human nature has been sought. What is it we contain, our substance, that makes us human with our identities? Whatever it is that we may be naturally prone to be or to do by virtue of some core components within us, it makes sense for the legal system to take this into account. International Human Rights law purportedly guarantees to all people, everywhere, equally, the right to be treated in certain ways and not to be treated in certain other ways. The 1948 Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the United Nations on 10 December 1948 in the aftermath of the Second World War and the Nazi atrocities of the era. With Nazi laws’ categorisation of Jewish identity facilitating the holocaust, it seems apt that a universal declaration would seek to categorise the whole of humanity together. With its jus cogens status declaring peremptory norms of international law from which there is no derogation, the UDHR explicitly sets out in its Preamble, as do many subsequent international treaties, that there is recognition of ‘the inherent dignity and of the equal and inalienable rights of all members of the human family’. This is, the Preamble continues, ‘the foundation of freedom, justice and peace in the world’.

In debating who exactly is a member of ‘the human family’, we are always in dialogue with the powerful historical legacies of personhood.¹ Not every actual human being has been included as a full person in the legal, political and global community. As Margaret Davies and Ngaire Naffine, in their analysis of property in the person in 2001, argue:

Fundamental to our law is a distinction between subjects, who are individual entities holding rights and duties, and objects, which are external to the person, incapable of having rights, and defined by the fact that they are owned, controlled or dominated by legal subjects.²

Many past injustices, including legal categorisations, mean that certain types of humans have been disregarded as human beings with rights, and as persons who are legal subjects. Such injustices continue into the present and will continue in the future unless changes are made. For many, the language of rights or human rights discourse is, at least, one way of ameliorating these legacies of the past. The more deeply oppressed we are, and have historically been, the more the language of rights continues to represent an aspiration and ideal. It is rare, if not non-existent, for those whose rights have seriously been at issue to quickly develop deep critiques of rights.³

Human rights discourse has been adopted with the aim of including previously excluded people categorised into group identities, such as slaves and women, in the concept of the human accorded protection by human rights law. It has been used in this sense to free the oppressed. It is a source of hope and possible transformation. Patricia Williams, an African American feminist scholar, who uses her ancestral family history of slavery and child sex abuse in her writings, defends rights from the critical legal theory movement in the 1980s and 1990s. She points to the rhetorical power of the language of rights when she says: ‘[r]ights is…still so deliciously empowering to say. It is a sign for a gift of selfhood’.⁴ Explicit acknowledgement, including by and through law, is important, particularly to those who have been deprived of such rights in the past. This is because, in and by such acknowledgement, selfhood is ‘signified’. This acknowledgement is based on ideas of the equal entitlement of all persons universally to be free. This is normally meant in the sense that an ability to be personally free is inherent in us in some way, within our ‘core’, in our ‘human nature’. This exists, regardless of what laws, governments or others say. If some element of who we are exists, and needs to be acknowledged, then a positive law describing us otherwise ought to be changed. Indeed, it could be said to be lacking validity. We are accordingly entitled to be treated in certain ways by the legal and political system.

The terminology of ‘selfhood’ compares closely to ideas of personhood, personality, personal identity, human nature and the soul. Ngaire Naffine categorises the representation of the person in human rights law as ‘P2’. This is a representation of the person who comes into being at birth and expires on brain death. This human subject precedes the legal subject. It includes only the human species and it includes all live humans, generally regardless of their mental or physical state.⁵ As Naffine observes, in presenting this version of the human in law, the human rights movement has revived a belief in human sanctity, preciousness and the ‘divine spark’: ‘…the underlying idea is that human life is innately precious. It is enough that we are human.’⁶ This links to Naffine’s analysis of ‘religionists’ who see creatures without souls as not being the proper beneficiaries as subjects of law.⁷ In ‘religionist’ language, as humans, we have souls and therefore are automatically beneficiaries and subjects of law. In more secular, but still ‘religionist’ philosophy, as humans, we have the capacity for a certain type of biologically developed brain not found in other species, certain capacities such as reason, human dignity and compassion for others. It is said that these aspects of who we are distinguish us somehow from other animals and entitle us to automatic membership as subjects of law.

Tom Campbell observes that the rhetoric of human rights draws on the moral resources of our belief in the significance of an underlying common humanity. As such, it directs us to a type of society that ensures that the basic human needs and reasonable aspirations of all its members are effectively realised in and protected by law.⁸ According to what is understood as liberal legalism, law is purportedly neutral, objective and impartial amongst persons, and this is how it should aim to operate.⁹ This system presupposes that human beings are rational, autonomous individuals; that at our core we, as humans, share these universal qualities. If we have a pre-social and pre-legal core or essence to our identity, this means we all share universal common humanity traits. As Anne Phillips observes, a potentially powerful message is conveyed that who or what we are should not matter: we may all be different, but our differences should not be allowed to count. This ‘equal humanity’ means we should all be seen as individuals, independently of class and social status, race, colour, sex, etc.¹⁰ This has emancipatory appeal, claiming the space to choose who and what we are: not to be defined, contained, and dictated by notions of how society labels us through its identification processes.¹¹ Increasingly, this view manifests itself in the international human rights regime not in neutrality but in the recognition of difference, as we shall see.

As summarised in my Introduction, the purpose of having international human rights law might be said, then, to ensure that the core quality or qualities of our identity – the ‘age old’ question¹² of what it is that makes you who and what you are – are protected, enshrined, controlled or brought to fruition through the legal and political system. Law can then be seen as a force for the good of ‘the people’ as a collective entity, or for the good of each of us as separate individuals. Alternatively, it can be interpreted as a force for the oppression of many for the good of those few who are or who become the powerful. In any account, this can entail an idea of ‘the essence’ of what it is that makes you ‘really’ or ‘truly’ most at ‘the core’ who you are. This involves consideration of what makes us who we are and like or unlike others, introducing ideas of huma...