Rights Are Still Right: The Case for Disability Rights

Abstract

A growing philosophical backlash suggests that rights may not be right. For those of us within whose earlier lifetimes patients had no rights, and women only, sharply curtailed ones, this prospect is worrisome. Of even more concern to me, as a person with a disability, is the related thought that we should abandon extending rights to the disabled before people like me can be fully caught up. For without having recourse to rights, how are we to rectify the neglect and exclusion people like us have suffered because we are intellectually, physically, or emotionally impaired? Proponents of feminist care and communitarian theories have argued that relying on rights fails precisely in the case of the disabled. Communitarians, for example, believe that, in general, people's acquisition of virtuous dispositions offers more collective benefit than their exercise of rights. They hold that disabled people do better when non-disabled people are motivated by other-related virtues because rights derive from and therefore ultimately cannot overcome--self-interested concerns. In a related argument, feminist care theorists point out that, while rights theories treat individuals as independent, some disabled people--and especially people with intellectual disabilities--could not survive independently. These theorists argue that for people who do not have the ability to claim or exercise them, rights are of little value. In this theoretical context, the case of disability, and intellectual disability in particular, is advanced to demonstrate the shortcomings of pursuing moral and political progress by expanding rights. The editors of The Human Rights of Persons with Intellectual Disabilities: Different but Equal appear not to have heard that rights may not be right. This is good, for the essays collected here offer important insights into the practical aspects of bringing about the liberation of people with intellectual disabilities worldwide. Most of the volume's nineteen essays attempt to place disability rights in the larger context of the international human rights movement. Generally speaking, the essays explore how the thesis of Article I of the Universal Declaration of Human Rights, namely, that all humans have equal and inalienable claims to dignity and freedom, offers people with intellectual disabilities equality of respect and treatment that is not merely homogeneous treatment. The relevant principle, different but equal, challenges governmental as well as nongovernmental organizations not only to develop legislation, but also to implement practices that result in genuine, concretely experienced improvements in disabled people's lives. This means that human rights advocates must learn to think of the disadvantages of disability not in medical terms, but in terms of a political power problem that can be solved by giving the disabled some control. But how do intellectually disabled people get and take control? The human rights approach to achieving this goal begins by launching a transnational program to expose biased and inhumane treatment of people with intellectual disabilities. The next step is to articulate an international standard of their rights and to have it ratified by treaty, while pursuing whatever constitutional or statutory protection of them can be invoked in litigation, nation by nation. Some chapters report on how these latter efforts have fared in differing venues, while others hypothesize about how they should fare. There are five sections to the volume, covering, in turn, what people with intellectual disabilities need in terms of their rights as human beings, how international and comparative law may be applied to redress violations of intellectually disabled people's human rights, national approaches to nondiscrimination protection for the disabled, integration of equality and difference in social policy, and the assumptions and ambitions of the intellectual disabilities rights movement. …