Empowering rights in our environment

Jill Marshall | 7 years ago

Jill continues her discussion of Human Rights law and personal identity following on from the blog she wrote earlier this year, “Living and dying“.

Those who are powerless, or have less power, can be encouraged to make ‘rights talk’ their own because rights are defined by who talks about them and the language that is used. Particularly when people are socially powerless, their freedom, starting with the imagination in their own heads, can lead to empowerment. However, human rights law can play a role in how those ‘heads’ develop and become our own, through, for example, human rights to education, the regulation of home life and to the care we need when growing up.
Courts can interpret a ‘right to’ personal identity in a way that constrains human dignity and freedom. This interpretation sees the core of who we are and our dignity as a process of self-discovery; fitting with a version of personal freedom that encourages us to find out who we already are: what is our essence; our ‘authentic true, real, core’ self or identity. This version has a long history in the literature.
Certain human rights provisions have been judicially interpreted to provide for some type of right to personal identity. Others relate to a variety of aspects of our personal identities. All international and regional human rights documents, including the International Bill of Rights consisting of the UDHR, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, continually state that the purpose of this area of law is respect for human freedom and human dignity.
There are other international treaties that relate to personal identity and the formation of personality including the Convention on Torture, Anti-discrimination treaties on race, gender, children and the disabled. The provisions can be interpreted in a restrictive way or with an empowering view of identity, human dignity and freedom. An empowering view sees freedom and dignity as self-created or self-determined, what one judges from the European Court of Human Rights described as the ability of a man (sic) to be  ‘free to shape himself and his fate in the way that he deems best fits his personality’ (see Cossey v the UK per Judge Martens)
In my analysis, these different versions point to varying explanations as to what personal identity means; in its formation, continuation, and end. My analysis is concerned with how personal identity is perceived by the individual person whose identity is the subject of discussion, and how it is perceived by others, including personally known others in their relationships, by society, and by the legal system.
It can be frustrating and produce a sense of failure or non-achievement if it is only by expressing your ‘true’ self that you can achieve self-realisation, self-fulfilment and ‘authenticity’ as a human being. Or if it is only what is seen to be the ‘core’ of who we are that is to be accommodated or protected by human rights law. If this is an account of moving towards always making the ‘right’ decision, this may mask coercion, including by the state, and cause injustices.
My arguments on self-realising and self-determining personal freedom are developed in Human Rights Law and Personal Identity with the aim of showing the interconnection between human rights law and personal identity. Both are often accused of being based on an individualistic, atomistic and self-possessed version of the human being. Many such critiques have much validity. However, I argue that human rights law’s purpose – respecting human freedom and human dignity – entails more than the protection of somehow already pre-existent self-sufficient, fully grown, rational, fully able-bodied and mentally competent, adults. For human rights law to fulfill its purpose, there is the need for an environment to exist and to be sustained where personal identity is created, developed, and nurtured. This needs us to acknowledge the inter-subjective quality of all of our personalities.

Those who are powerless, or have less power, can be encouraged to make ‘rights talk’ their own because rights are defined by who talks about them and the language that is used. Particularly when people are socially powerless, their freedom, starting with the imagination in their own heads, can lead to empowerment. However, human rights law can play a role in how those ‘heads’ develop and become our own, through, for example, human rights to education, the regulation of home life and to the care we need when growing up.

Courts can interpret a ‘right to’ personal identity in a way that constrains human dignity and freedom. This interpretation sees the core of who we are and our dignity as a process of self-discovery; fitting with a version of personal freedom that encourages us to find out who we already are: what is our essence; our ‘authentic true, real, core’ self or identity. This version has a long history in the literature.

Certain human rights provisions have been judicially interpreted to provide for some type of right to personal identity. Others relate to a variety of aspects of our personal identities. All international and regional human rights documents, including the International Bill of Rights consisting of the UDHR, the International Covenant on Civil and Political Rights and theInternational Covenant on Economic Social and Cultural Rights, continually state that the purpose of this area of law is respect for human freedom and human dignity.

There are other international treaties that relate to personal identity and the formation of personality including the Convention against Torture, Anti-discrimination treaties on race, gender, children and the disabled. The provisions can be interpreted in a restrictive way or with an empowering view of identity, human dignity and freedom. An empowering view sees freedom and dignity as self-created or self-determined, what one judges from the European Court of Human Rights described as the ability of a man (sic) to be “free to shape himself and his fate in the way that he deems best fits his personality” (seeCossey v the UK per Judge Martens)

In my analysis, these different versions point to varying explanations as to what personal identity means; in its formation, continuation, and end. My analysis is concerned with how personal identity is perceived by the individual person whose identity is the subject of discussion, and how it is perceived by others, including personally known others in their relationships, by society, and by the legal system.

It can be frustrating and produce a sense of failure or non-achievement if it is only by expressing your ‘true’ self that you can achieve self-realisation, self-fulfilment and ‘authenticity’ as a human being. Or if it is only what is seen to be the ‘core’ of who we are that is to be accommodated or protected by human rights law. If this is an account of moving towards always making the ‘right’ decision, this may mask coercion, including by the state, and cause injustices.

My arguments on self-realising and self-determining personal freedom are developed inHuman Rights Law and Personal Identity with the aim of showing the interconnection between human rights law and personal identity. Both are often accused of being based on an individualistic, atomistic and self-possessed version of the human being. Many such critiques have much validity. However, I argue that human rights law’s purpose – respecting human freedom and human dignity – entails more than the protection of somehow already pre-existent self-sufficient, fully grown, rational, fully able-bodied and mentally competent, adults. For human rights law to fulfill its purpose, there is the need for an environment to exist and to be sustained where personal identity is created, developed, and nurtured. This needs us to acknowledge the inter-subjective quality of all of our personalities.

Jill continues this discussion in her blog next month. This series of blogs has been adapted from Jill’s new book, Human Rights Law and Personal Identity.*

Twitter: @JillMarshallLAW

*Exclusive 20% discount for ERIC readers when you purchase Jill’s book, Human Rights Law and Personal Identity, online. Enter discount code LRK69 at the checkout – offer expires 31/12/2014.

About the author

Jill Marshall

Jill is now Professor in the law school at the University of Leicester having previously worked as a litigation solicitor at the international law firms Herbert Smith (now Herbert Smith Freehills), and Freshfields, Bruckhaus Deringer. She analyses legal issues surrounding personal freedom and identity, applying philosophical and moral theory to case law and statutes. Jill’s current research is investigating a so-called human right to personal identity, and includes how the environment we live in shapes who we are.