Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons wth Disabilities--Towards a Unified Field Theory of Disability

Introduction

Thank you very much. I am greatly honoured to deliver this oration in memory of G.V. Pandit. I am told he was equally passionate about literature as well as law. That is no accident as some of the great themes of literature - honour, betrayal, loyalty, friendship โ find strong echoes in law. Law is where the raw edges of human experience intersect with ethics. And the โrule of lawโ - which this great law society so diligently instills in its novice lawyers - is nothing if not connected with justice and the ulimate ethical questions that make us all human.

And the cause of humanity has been measurably advanced recently with the adoption of the United Nations Convention on the Rights of Persons with disabilities. This convention both affirms trends already underway around the world in many countries in the broad field of disability and helps to accelerate progress. Its effects will be felt across many groups including those with mental illness, intellectual disability, as well as physical and sensory disability.

My paper is an ideas paper about this convention and its implications โ it is not an expository excursion. It is not meant for the black letter man โ but will hopefully add colour to his pallete.

Let me at the outset pay tribute to the work of India in securing and negotiating this convention. Indeed, the contribution of the Indian Human Rights Commission was truly outstanding. Anuradha Mohit in particular deserves the highest praise for her wisdom and effectiveness.

Before commencing allow me to unpack some core values that you would have thought should have animated the broad disability field in the past. This is the โmyth systemโ as opposed to the actual โoperation systemโ of law.

Take dignity. Put simply this is the notion that all human life is of inestimable value and that persons are to be valued not because of the โuse valueโ they have in the economy. Logically, this animates a protective shield around personhood โ a shield that is used defensively to ward off undue encroachments and positiviely to enable oneโs own life plans to emerge. This forum internum protects both physical and pychic integrity.

Take autonomy. Put simply this is the idea that persons are, and ought to be, self-directing and that the encroachments of third parties โ even those who โknow betterโ โ are to be resisted. Through the notion of liberty this creates a bridge between the forum internum and the forum externum limited only by a like liberty in others. It is premised on personhood and a presumed capacity for moral agency.

Take equality. This acts as a side-constraint on how we are treated whether by the State or by third parties. Differential treatment is not allowed where based on distinctions that are โarbitrary from a moral point of viewโ. It is not of couse a tool that itself generates substantive rights - but it is an important control in how those rights are applied differentially among groups and individuals. As Benjamin Franklin once said โthe constitution does not guarantee happiness โ merely the right to pursue itโ.

And take solidarity. We do not exercise our freedom in isolation. It is because we are committed to freedom that we must be committed to providing the material foundations that enable freedom to become a reality for all. Otherwise our commitment to freedom is holow. This requires social investment โ and a certain assumption of a capacity for citizenship and reciprocity.

Well, we โ as lawyers - do not study enough how legal fields emerge and what accounts for the boundaries that divide them. This legal archeology is interesting because the movement of fields helps explain legal history. Now, burrowing from Ronald Dworkin, fields have their dominant ideals โ ideals that both justify and give coherence to legal doctrine within a field.

You might have thought that the ideals above (dignity, autonomy, equality, solidarity) would obtain evenly in the disability field. From the perspective of legal history at least you would be wrong.

The fields of mental health law, intellectual disability law, and equal opportunities law as it pertains to physical and mental disability run in different streams and draw on different elements of the continuum of human values.

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By: Indian Law Society
When: 7/2/2014