Who does the law think we are?

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, “Who do we think we are?“.

Who or what is a person has legal implications. In most countries around the world, a person’s identity is recorded on birth. The fact of personal existence has to be legally registered and some form of birth record produced. The information consists of certain components of that person’s identity, often including their place of birth, sex, names and certain details of parentage. However, the non-governmental organization, Plan International, reports that each year about 51 million children go unregistered, mostly in developing countries.
Many think that such a record is needed to comply with a person’s human rights to know who they are. This implies that who they are exists at birth. Certain aspects of this fixing of identity can be changed in some circumstances. For example, a transsexual person who has been granted a full gender recognition certificate in the United Kingdom, and similar legal provisions in many other countries, can obtain a new birth certificate detailing their new name and gender. Although the original birth certificate remains in existence, it is not available to the public. Children who are adopted will have an adoption certificate and can apply for a copy of their original birth certificate when they are 18 years old or over. Elements of a person’s identity must also be recorded on marriage and death, and in a passport or identity document, depending on the legal arrangements in the national state in question. Increasing reproductive technological advances impact on personal identity issues: for example, there are legal consequences if a person is born of a surrogate or through gamete donation.
In terms of the human right to personal identity, it is not at all clear what this right actually means. In recent years, such a right has been interpreted from the short but explicit provision of a ‘right to respect for one’s private life’ set out in the text of Article 8 of the European Convention on Human Rights (ECHR). Certain European national laws, most clearly in the German law’s provisions on a right to personality, also present a right to human personhood, personal identity and personality. Beyond Europe, the Universal Declaration of Human Right’s (UDHR) provision for the right to personality development, the African Charter’s provisions, the Children’s Rights Convention, and a variety of international documents pertaining to ethnic minorities, issues of race, religion, disabilities and women’s rights, all contain provisions relating to identity and its formation and protection.
The UDHR states that we are all born free and equal by virtue of being human. This freedom and equality of the individual human being is the foundation of modernity and its social contract theories from Hobbes, Locke, Rousseau and beyond. The objective of international human rights law is set out in many international and regional treaties, signed by states on behalf of the citizens they are supposed to represent. This objective is ‘respect for the human dignity and human freedom of everyone’ indicating that such legal rights rest on the moral, normative project of individual human beings living a good life. Human rights are described by the UN Human Development Report of 2000 as:
‘the rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behavior of individuals and on the design of social arrangements – and are universal, inalienable and indivisible.’ (p16)

As will be more fully explained, I argue that a more sophisticated version of a right to personal identity is found in an interpretation of identity as self-determining in the sense of our making of ourselves who we want to be. This does not need to entail a solipsistic, individualistic, atomistic view of the person. I argue it is one that is inter-subjectively created in a world in which we live with others in our environment, in relationships, and, through our mutual nurture and care by and for others. Yet, it is us, ‘from the inside’, who can interpret what happens in and through us in the world with self-responsibility, and understanding and awareness. The version of seeking the authentic, self-discovered – because always there – identity that some court cases seem to imply, is less appealing because it can be used to constrain our freedom.

Who or what is a person has legal implications. In most countries around the world, a person’s identity is recorded on birth. The fact of personal existence has to be legally registered and some form of birth record produced. The information consists of certain components of that person’s identity, often including their place of birth, sex, names and certain details of parentage. However, the non-governmental organization,Plan International, reports that each year about 51 million children go unregistered, mostly in developing countries.

Many think that such a record is needed to comply with a person’s human rights to know who they are. This implies that who they are exists at birth. Certain aspects of this fixing of identity can be changed in some circumstances. For example, a transsexual person who has been granted a full gender recognition certificate in the United Kingdom, and similar legal provisions in many other countries, can obtain a new birth certificate detailing their new name and gender. Although the original birth certificate remains in existence, it is not available to the public. Children who are adopted will have an adoption certificate and can apply for a copy of their original birth certificate when they are 18 years old or over. Elements of a person’s identity must also be recorded on marriage and death, and in a passport or identity document, depending on the legal arrangements in the national state in question. Increasing reproductive technological advances impact on personal identity issues: for example, there are legal consequences if a person is born of a surrogate or through gamete donation.

In terms of the human right to personal identity, it is not at all clear what this right actually means. In recent years, such a right has been interpreted from the short but explicit provision of a ‘right to respect for one’s private life’ set out in the text of Article 8 of the European Convention on Human Rights (ECHR). Certain European national laws, most clearly in the German law’s provisions on a right to personality, also present a right to human personhood, personal identity and personality. Beyond Europe, the Universal Declaration of Human Right’s (UDHR) provision for the right to personality development, the African Charter’s provisions, the Children’s Rights Convention, and a variety of international documents pertaining to ethnic minorities, issues of race, religion, disabilities and women’s rights, all contain provisions relating to identity and its formation and protection.

The UDHR states that we are all born free and equal by virtue of being human. This freedom and equality of the individual human being is the foundation of modernity and its social contract theories from Hobbes, Locke, Rousseau and beyond. The objective of international human rights law is set out in many international and regional treaties, signed by states on behalf of the citizens they are supposed to represent. This objective is ‘respect for the human dignity and human freedom of everyone’ indicating that such legal rights rest on the moral, normative project of individual human beings living a good life. Human rights are described by the UN Human Development Report of 2000 as:

the rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behavior of individuals and on the design of social arrangements – and are universal, inalienable and indivisible.’ (p16)

As will be more fully explained, I argue that a more sophisticated version of a right to personal identity is found in an interpretation of identity as self-determining in the sense of our making of ourselves who we want to be. This does not need to entail a solipsistic, individualistic, atomistic view of the person. I argue it is one that is inter-subjectively created in a world in which we live with others in our environment, in relationships, and, through our mutual nurture and care by and for others. Yet, it is us, ‘from the inside’, who can interpret what happens in and through us in the world with self-responsibility, and understanding and awareness. The version of seeking the authentic, self-discovered – because always there – identity that some court cases seem to imply, is less appealing because it can be used to constrain our freedom.

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.*

Additional sources

J Marshall Personal Freedom Through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Martinus Nijhoff Brill 2009)

J Marshall ‘Personal Identity’ in D Greenberg (ed)Jowitt’s Dictionary of English Law (London: Sweet and Maxwell 2010)

J Marshall, ‘A Right to Personal Autonomy at the European Court of Human Rights’, 3 European Human Rights Law Review 2008, 336-355

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.