Legal Niches

Policing the borders of the rights-bearing community

By joel

American culture has basically accepted the concept of human rights. This concept was expressed in the Declaration of Independence as the idea that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Since then, the basic concept has formed the underpinning of numerous national and international laws.

From the beginning, though expressed in universals, this concept has included implicit exclusions. The borders of the community that is covered by this concept has changed dramatically over time to fit the changing norms of the society, the most dramatic being women and non-whites, though there have been many others (including the mentally ill or disabled).

The exclusion has always been justified by putative differences in kind. The question in such border disputes is always when is a difference a distinction.

Part of the fierceness of these border disputes comes from the way the heterogeneity of the community of rights-holders interfaces with the concept of “equality” to suggest limits on what kinds of protections can sensibly fit within this unalienable rights framework. In other words, the less the members of the community of rights-holders have in common, the smaller the scope of the features that can be coherently considered “equal rights.” For example, how can free speech be an unalienable right if the majority of the rights bearing community cannot speak? Thus the vehemence of those against the chimp seeking human rights.

Full post as published by Animal Blawg on January 17, 2008 (boomark / email).