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Published online by Cambridge University Press: 20 August 2019
Individuals often invoke the moral rights that they hold as members of certain groups or social categories. Yet, there is ambiguity in both terminology and theorizing surrounding the nature of those rights. Focusing on the paradigmatic case of disabled people’s right to reasonable accommodations, this paper develops a descriptive account of those group-related rights, as a distinct category of rights which I call ‘membership rights’. Membership rights neither fit the concept of ‘human rights’, as not all people hold them, nor are they typical ’group rights’, as they are held by members of some group as individuals, not by groups collectively. In addition, the grounding of membership rights is linked to the distinct features of group members, be it their special interests or special circumstances. Finally, the content of membership rights includes distinct entitlements and correlating duties, which are not secured by human rights, group rights, or any combination thereof. Recognizing the distinct features of membership rights may have practical implications by strengthening efforts to secure legal protection to membership rights. It also invites further theoretical inquiry, for example, towards identifying other specific rights that fit into this category.
I am very grateful to Ori Herstein, Jillian Craigie, John Tasioulas, Lorenzo Zucca, Re’em Segev, David Miller and Michael Ashley Stein for their very helpful comments and to editors for CJLJ. I would also like to thank participants of the King’s College London Graduate Research Lab (King’s College London, 2017), and the Cambridge Doctoral Workshop in Legal Theory (University of Cambridge, 2017) for fruitful discussions of earlier drafts.
1. In using the term ‘membership’ I denote the plain notion of being a part of some group or social category, and not the more robust notion of the rights of citizenship. Compare: Will Kymlicka & Sue Donaldson, “Animals and the Frontiers of Citizenship” (2014) 34:2 Oxford J Legal Stud 201. (Referring to the rights of membership to denote some kind of citizenship rights in the context of domesticate animal rights).
2. Noting the ongoing controversy surrounding terminology in this domain, I use the terms disabled people and persons with disabilities interchangeably throughout the paper. I should also clarify from the outset that in focusing on disabled people’s right to reasonable accommodations I do not preclude the possibility that members of other social groups, such as older persons or women, may also hold a right to reasonable accommodations. Members of different social groups may hold membership rights involving similar entitlements, but each of these membership rights warrants separate analysis of its holders, grounding and content, which is beyond the scope of this paper.
3. Michael Ashley Stein et al, “Accommodating Every Body” (2014) 81:2 U Chicago L Rev 689 at 695-96 (noting that the initial provision of reasonable accommodations in employment was unrelated to disability and addressed religious accommodations and the Equal Employment Opportunity Act of 1972).
4. 42 U.S.C. §12112(a), §12132, §12182(a).
5. 42 U.S.C. §12112(b)(5) [Act].
6. Michael Ashley Stein, “The Law and Economics of Disability Accommodations” (2003) 53:1 Duke LJ 79 at 88-89.
7. Ibid at 88-89.
8. Lisa Waddington & Anna Lawson, Disability and Non-Discrimination Law in the European Union: An analysis of disability discrimination law within and beyond the employment field (Report for the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Luxembourg: Publications Office of the European Union, 2009) at 24-33. Discussing article 5 of the European Directive on reasonable accommodations.
9. Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at art 2 (entered into force 3 May 2008) [CRPD].
10. E.g., the language of the CRPD suggests that the rights proclaimed in the convention exist regardless of their legal enactment: art 1 states that the aim of the convention is “to promote, protect and ensure” rights and freedoms of persons with disabilities. More generally, many theorists accept the view that legal human rights typically mirror pre-legal moral rights, see e.g., HLA Hart, “Are There Any Natural Rights?” (1955) 64:2 Philosophical Rev 175 at 177-78; Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Westview Press, 1999) (arguing that new legal rights are typically grounded in moral rights); Amartya Sen, “Elements of a Theory of Human Rights” (2004) 32: 4 Philosophy and Public Affairs 315 at 326-27 (explaining that one of the ways in which the ethical force of human rights has been deployed is by inspiring and motivating human rights law).
11. For a distinction between ‘categories’ and ‘groups’ see David Miller, “Group Rights, Human Rights and Citizenship” (2002) 10:2 European J Philosophy 178. Miller understands a ‘category’ of persons to mean “all those people who fit a particular description, such as being under twenty-one or having red hair”, whereas he takes a ‘group’ to be “a set of people who by virtue of their shared characteristics think of themselves as forming a distinct group”. On Miller’s view, a group only exists if members “identify themselves as belonging to the group, and to that extent be conscious of their membership”. Miller adds that the distinction between categories and groups is not always clear, and indeed categories can transform into groups as a result of growing awareness of their common interests, which is often the result of oppression. Ibid at 178-79.
12. Cf ibid.
13. E.g., Steven D Edwards, Disability: Definitions, Value and Identity (Radcliffe, 2005) at 123-24. Edwards argues that disability is a personal identity, “a narrative, a life story”. He claims that disablement manifests itself in each of the different concepts that provide the form of personal narratives: space, time, embodiment, self-conception and engagement in the pursuit of a self-project which will realize their self-conception. Consider also Harlan D Hahn, who argues that being disabled for a significant portion of a lifetime changes disabled people’s perspectives—it leads disabled people to “acquire experiences and values that distinguish them from their nondisabled counterparts”. Harlan D Hahn, “Disability Policy and the Problem of Discrimination” (1985) 28:3 American Behavioral Scientist 293 at 308. From a slightly different approach, Tobin Siebers claims that disability is a minority group identity because due to their social positioning, disabled people have the ability to criticize prevalent social norms. This view is based on Siebers’ conception of the notion of a ‘minority identity’ as an ‘epistemological construction that contains a broad array of theories about navigating social environments’. To him, identity is, simply put, the manner in which one acquires and produces knowledge about one’s society, as a result of living in a particular social stance. Tobin Siebers, Disability Theory (University of Michigan Press, 2008) at 14-16.
14. Jenny Morris, Pride Against Prejudice: Transforming Attitudes to Disability (New Society Publishers, 1991) at 36-37. Morris observes that disabled people who are ashamed of their impairments and strive to be seen as what is socially perceived as “normal” often disassociate themselves from other disabled people.
15. Joseph Raz, The Morality of Freedom (Oxford University Press, 1986) at 208 (group rights derive from the interests of individual members of the group, and are held jointly by those who make up the group) [Raz, Morality of Freedom]; Dwight G Newman, “Collective Interests and Collective Rights” (2004) 49:1 Am J of Juris 127 (group rights derive from certain individual rights but they are held by groups, therefore group rights can exist even in the absence of individuals members who ascribe to the group, albeit for a limited time); Peter Jones, “Cultures, Group Rights, and Group Differentiated Rights” in Maria Dimova-Cookson & Peter Stirk, eds, Multiculturalism and Moral Conflict (Routledge, 2010) 38 at 39-41.
16. If, contra, disabled people do have a shared culture, they may be entitled to certain rights as a group such as cultural preservation rights.
17. Cf Raz’s discussion on rights as intermediate conclusions, Raz, Morality of Freedom, supra note 15 at 181.
18. I am borrowing the term ‘institutional rights’ from Wellman, supra note 10.
19. For a philosophical account of solidarity in the context of another civil rights struggle, see Tommie Shelby, We Who Are Dark: The Philosophical Foundations of Black Solidarity (Belknap Press, 2007).
20. E.g., Elizabeth, Barnes, The Minority Body: A Theory of Disability (Oxford University Press, 2016)Google Scholar at 43-48 (claiming that the category of disability was socially constructed from group solidarity, in particular the idea that people have common experiences and shared goals).
21. The notion of solidarity and political unity among disabled people has been a dominant feature of the disability rights movement. E.g., Union of the Physically Impaired Against Segregation, Policy Statement (1974/5) (amended in 1976), online: www.leeds.ac.uk/disability-studies/archiveuk/archframe.html. (The Union of the Physically Impaired Against Segregation was a group of disabled activists that operated in the United Kingdom during the 1970s for disability rights. The group was groundbreaking and influential, among other things, in its commitment to the notion of political unity among disabled people.) Similarly, in the fight for women’s rights, solidarity between women famously manifests itself in the notion of ‘sisterhood’: the idea that women are connected together by shared interests and goals. Robin, Morgan, ed, Sisterhood Is Powerful: An Anthology of Writings from the Women’s Liberation Movement, 1st ed (Random House, 1970)Google Scholar. Although the notion of sisterhood has been subject to criticism, primarily for ignoring racial and classist oppression, it has not been abandoned in feminist discourse. Bell Hooks, “Sisterhood: Political Solidarity between Women” (1986) 23:1 Feminist Rev 125 (“Women must learn to accept responsibility for fighting oppressions that may not directly affect us as individuals. Feminist movement, like other radical movements in our society, suffers when individual concerns and priorities are the only reason for participation. When we show our concern for the collective, we strengthen our solidarity....”. Ibid at 137.) Despite criticism, the idea of solidarity was not abandoned, but rather transformed, with feminists devising new notions of solidarity among women. For example, Bell Hooks proposes to achieve sisterhood and solidarity among women by working together to understand the differences among women, and changing misguided perspectives. Ibid.
22. E.g., Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 at Preamble (Specifically: “Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations”) [UDHR]. Notably, despite ongoing debate regarding the concept of human rights, the point about human rights being rights that all people hold—at least at a certain point in time—is for the most part undisputed. E.g., Rowan, Cruft, Liao, S Matthew & Massimo, Renzo, “The Philosophical Foundations of Human Rights – An Overview” in Cruft, Rowan S, Matthew, Liao & Massimo, Renzo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015)Google Scholar. Even those defending the political view of human rights accept that human rights are held by all human beings, at least at a certain point in time. E.g., ibid at 5; Joseph Raz, “Human Rights in the Emerging World Order” (2010) 1:1 Transnational Leg Theory 31. While defending a political conception of human rights, Raz explains that human rights are “synchronically universal, meaning that all people alive today have them.” He further notes that the synchronic universality of human rights is what allows them to function as limits on states sovereignty, by barring the possibility of states to claim that human rights violations are permissible due to unique circumstances. Ibid at 41-43.
23. The comprehensive nature of qualifying circumstances in the context of membership rights also explains why the qualifying conditions in the formulation of membership rights are placed on the right holder and not on the content and exercise of the right.
24. For example, Michael Oliver argued, albeit in relation to the debate of terminology in describing disabled people: “It is sometimes argued, often by able bodied professionals and some disabled people, that ‘people with disabilities’ is the preferred term [to refer to disabled people], for it asserts the value of the person first and the disability then becomes merely an appendage. This liberal and humanist view flies in the face of reality as it is experienced by disabled people themselves who argue that far from being an appendage, disability is an essential part of the self. In this view it is nonsensical to talk about the person and the disability separately” in Michael Oliver, The Politics of Disablement (Macmillan, 1990) at xiii. Samuel R Bagenstos, “Subordination, Stigma, and Disability” (2000) 86:3 Va L Rev 397. Bagenstos emphasizes the systematic subordination, marginalization and stigmatization of some people with impairments, which gives rise to their group status as disabled. Ibid at 436. See also ibid at 401 n 11 and accompanying text.
25. See Cruft, Liao & Renzo, supra note 22 at 29-30 n 154, with an example of one’s rights as a lecturer.
26. See also Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton University Press, 2008). Rejecting the claim that rights that are conditional on certain circumstances besides that of being a human being are universal human rights, as that would suggest that human rights are everywhere. For instance, according to Wolterstorff, the right to education is not a ‘truly human right’ as not all persons are capable of being formally educated, for example, in the absence of a system of formal education. For a critique of Wolterstorff’s account of human rights, see John, Tasioulas, “On the Nature of Human Rights” in Gerhard, Ernst & Jan-Christoph, Heilinger, eds, The Philosophy of Human Rights: Contemporary Controversies (De Gruyter, 2012) 17 at 38-39Google Scholar (arguing that conditions in the content of moral rights does not exclude them from the list of human rights, as long as these conditions do not refer to “proper names” first, and second, that these conditions are “not unduly remote for all human beings given the socio-historical conditions to which the existence of the right has been indexed”).
27. In particular, Sen, supra note 10; Martha Craven Nussbaum, Creating Capabilities: The Human Development Approach (Belknap Press, 2011) at 62-68 [Nussbaum, Creating Capabilities]. For the differences between Sen and Nussbaum’s approaches to the relation between capabilities and human rights, see ibid at 64-65.
28. Sen, supra note 10 at 332.
29. Ibid. To take another example, the idea that people should have the capability to ‘emotions’, which includes “being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence, to experience longing, gratitude, and justified anger” grounds different rights, like a right to forms of human association that support the development of the emotional capability, such as marriage. (See Nussbaum’s list of central capabilities, Nussbaum, Creating Capabilities, supra note 27 at 33-34.)
30. Sen, supra note 10 at 332.
31. For instance, Martha Nussbaum claims that focusing on people’s actual opportunities is what makes the capabilities approach ‘attentive’ to issues of race, gender and other sources of diversity among human beings. Nussbaum, Creating Capabilities, supra note 27 at 63.
32. Martha C Nussbaum, “The Capabilities of People with Cognitive Disabilities” (2009) 40:3/4 Metaphilosophy, Special Issue: Cognitive disability and its challenge to moral philosophy 331 at 341-42 (arguing that the capabilities approach supports affirmative measures to secure the education of children with cognitive disabilities).
33. Linda Barclay, Disability with Dignity: Justice, Human Rights and Equal Status (Routledge, 2018) at 70-75.
34. Ibid.
35. For a critique of the capabilities approach as a theory of human rights see Michael Ashley Stein, “Disability Human Rights” (2007) 95:1 Cal L Rev 75 at 101-07 [Stein, “Disability Human Rights”]. Stein criticizes Martha Nussbaum’s version of capabilities approach for excluding people with intellectual disabilities whose function falls below the minimal level of each central capability. Advocating for what he calls ‘the disability human rights paradigm’ Stein suggests focusing on cultivating individual talents, instead of universal levels of functioning, as baseline for providing resources to develop human potential.
36. Cruft, Liao & Renzo, supra note 22 at 15-16.
37. These capabilities are mentioned in Nussbaum’s list of ten central capabilities. Nussbaum, Creating Capabilities, supra note 27 at 33-34.
38. Nussbaum acknowledges that capabilities are important because they can lead to functioning, contingent on one’s choice. This is because Nussbaum’s central capabilities are grounded in the notion of dignity, which she sees as related to the basic capability of active striving. Ibid at 24-26.
39. Nevertheless, we need not reject the capabilities approach in order to accept the distinction between human rights and membership rights. In fact, the capabilities approach allows for the possibility that different rights secure the same capability. For example, the idea that people should have the capability to bodily health, grounds the right healthcare, the right to food and the right to shelter, all of which secure people’s capability to have good health. See ibid at 33-34. By the same token, the capabilities approach permits that securing certain capabilities requires rights that only people belonging to some groups hold. For example, the idea that people should have the capability to move freely from place to place grounds the human right to freedom of movement as well as the right to personal mobility, including the right to assistive devices, which only disabled people hold.
40. CRPD, supra note 9 at arts 2, 5—Equality and non-discrimination, 13—Access to justice, 14—Liberty and security of the person, 24—Education, 27—Work and employment. Compare: Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” (2008) 30:2 Hum Rts Q 494. Mégret argues that some CRPD rights reformulate, extend, and even innovate human rights based on the irreducible experience of disabled people.
41. CRPD, supra note 9 at art 24 (2)(c).
42. Compare with: Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015) at 91-116 (Khaitan holds that although currently only disabled people hold the legal right to reasonable accommodations, in the future antidiscrimination law will also recognize the right of people who are members of other groups to reasonable accommodations).
43. Raz, Morality of Freedom, supra note 15 at 168-69. For example, a person’s right to walk on his hands is a derivative right because it is grounded in the right to personal liberty.
44. Will Kymlicka, Multicultural Citizenship (Oxford University Press, 1996) [Kymlicka, Multicultural Citizenship].
45. Jones, supra note 15 at 39-41 (distinguishing between the two types of right-holders in Kymlicka’s account of group-differentiated rights).
46. Kymlicka, Multicultural Citizenship, supra note 44 at 10-33 (particularly the discussion on polytechnic rights).
47. E.g., Suzy Killmister, “Group-Differentiated Rights and the Problem of Membership” (2011) 37:2 Social Theory and Practice 227 at 227-28 (in her discussion of group identification Killmister refers to both members of religious communities and to women and gays).
48. Kymlicka, Multicultural Citizenship, supra note 44 at 11-17.
49. Ibid at 75-106.
50. Ibid at 18-19. Compare discussion above under section 1.
51. For a distinction between the right to equality and the right against discrimination see Khaitan, supra note 42. Arguing that a right to reasonable accommodations derives from the universal right against discrimination, and not from the right to equality.
52. Gideon Sapir, “Justifications for the Duty to Provide Accommodations in Employment for Persons with Disabilities” 13 Mishpat veMimshal 411. (Sapir discusses the possible justifications for the right to reasonable accommodations in employment, including the right to equality).
53. James W Nickel, Making Sense of Human Rights (Wiley-Blackwell, 2007) at 163. Nickel proposes a test for whether a Minority Right is a human right: “The Minority Right to A is a human right if it is derivable (using plausible additional premises) from a universal human right”.
54. Ibid.
55. Nickel does not examine any of the rights of disabled people in his analysis, although he draws on several international human rights treaties to inform his discussion on Minority Rights, e.g., The Genocide Convention, The International Convention on the Elimination of All Forms of Racial Discrimination, The Convention on the Elimination of All Forms of Discrimination Against Women, The Convention on the Rights of the Child, as well as the then draft declaration on the rights of indigenous peoples. Notably, Nickel does not discuss the CRPD, perhaps because the convention was adopted by the UN General Assembly at the end of 2006, shortly before the book’s second edition was published.
56. Sapir, supra note 52. (While Sapir seems to accept that it is possible to ground the right to reasonable accommodations in employment in the right to equality, as conceived in Israeli law at least, he claims that there are substantial reasons to reject that grounding, and favor instead appealing to the justification from efficiency and justice, including the interest in social and political participation and autonomy.)
57. Raz, Morality of Freedom, supra note 15 at 168-69.
58. Claiming that non-derivative membership rights are justified by their instrumental value entails that they further the interests of group members. By contrast, a justification of non-derivative membership rights that is based on group members’ moral worth or status is problematic for two reasons. First, it rests on the claim that members of the group have a different moral worth than other people, which many people strongly reject. Second, conceding that group members have a different moral status or worth derails the claim that they also hold human rights, inasmuch as human rights rely on people’s moral worth as human beings.
59. Miller, supra note 11 at 190-91.
60. Ibid.
61. See Onora O’Neill, “The Dark Side of Human Rights” (2005) 81:2 Int’l Affairs 427. O’Neill discusses the implications and complications arising from abstract universal human rights to goods and services, specifically with regards to the allocation of duties and prospect of compliance.
62. Miller, supra note 11 at 191.
63. For a pluralistic approach to the foundation of human rights, see John, Tasioulas, “On the Foundations of Human Rights” in Cruft, Rowan S, Matthew, Liao & Massimo, Renzo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015)Google Scholar.
64. Ibid at 56-63 (discussing the issue of when interests give rise to human rights).
65. Miller makes a similar distinction between human rights and group rights. See Miller, supra note 11 at 183-84.
66. Cf CRPD, art 2.
67. Miller also highlights this common mistake when considering group rights. See Miller, supra note 11 at 183-84.
68. See also Mégret, supra note 40. Explaining that some group-specific international treaties simply affirm group members’ human rights, especially when those rights have been denied in the past.
69. E.g., Maya, Sabatello, “The New Diplomacy” in Maya, Sabatello & Marianne, Schulze, eds, Human Rights and Disability Advocacy (University of Pennsylvania Press, 2014)Google Scholar at 242 (noting that non-governmental organizations who advocated for the adoption of the CRPD referenced existing international human rights treaties as a strategy to strengthen their claims).
70. For a review of cases see Anna, Lawson, “The Human Rights Act 1998 and Disabled People: The Right to Be Human?” in Colin, Harvey, ed, Human Rights in the Community (Hart, 2005)Google Scholar; more generally see Stein, “Disability Human Rights”, supra note 35 at 79-82 (on the lack of legal redress for the rights’ abuses of disabled people despite general treaties and declarations that apply, in theory, to disabled people). See also Rosemary Kayess & Phillip French, “Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities” (2008) 8:1 Human Rights L Rev 1. Reviewing developments in international law prior to the adoption of CRPD, Kayess & French note that initiatives to protect disability rights by reinterpreting and expanding existing human rights treaties had little effect in practice. Ibid at 13-14.
71. Diane Driedger, The Last Civil Rights Movement: Disabled Peoples’ International (Hurst & Co, 1989) at 45. Kayess & French, supra note 70 at 17.
72. For instance, Stein and others have expressed concern that when people think of disability rights as ‘group’ rights they are inclined to think of these rights ‘as being privileging rather than equalizing’. Stein et al, supra note 3 at 735-36.
73. Elizabeth F Emens, “Integrating Accommodation” (2008) 156:4 U Pa L Rev 839.
74. Jody Heymann, Michael Ashley Stein & Gonzalo Moreno, eds, Disability and Equity at Work (Oxford University Press, 2014). (Discussing the current challenges and possible solutions for increasing the inclusion of disabled people in the workforce in different national contexts.)
75. Stein et al, supra note 3 at 747-49.
76. Ibid.
77. Khaitan, supra note 44; Bradley A Areheart, “The Symmetry Principle” (2017) 58:4 Boston College L Rev 1085 (defending the asymmetry approach to disability rights).
78. CRPD, supra note 9 at art 19—Living independently and being included in the community, including having the opportunity to choose their place of residence, who they live with, being provided with support services to prevent isolation. Some may claim that this right is based on disabled people’s interest in social inclusion and in participating in different aspects of social life. Arguably, while these interests are not unique to disabled people, given that disabled people are frequently socially excluded and segregated from nondisabled peers, only disabled people’s interests justify holding others under a duty to include them in social life, thus giving rise to the right. Yet others may claim that the right to live independently in the community derives from disabled people’s right to equality. On this view, social exclusion and segregation generate a difference between disabled and nondisabled people, thus violating the right to equality. “States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others” [emphasis added].
79. Cf Convention on The Rights of The Child, acknowledges children’s right to receive special care and the parental responsibility to provide such care. 20 November 1989, 1577 UNTS 3 at Preamble & arts 7, 18 & 27 (entered into force 2 September 1990). See also UDHR, supra note 22 at Preamble & art 25(2) (recognizing children’s right to special care and assistance). A critic can argue that only children who have parents have the right to parental care. But, it is plausible that all children, even those with no parents, have a right to parental care, only that in the case of a right holder who has no parents the right correlates with different duty bearers, e.g. some other guardian or the state.