In today’s blog, and in some more entries to follow, I want to explore some aspects of ‘human rights law and personal identity’. My new book,Human Rights Law and Personal Identity, published by Routledge explores these issues in much greater detail. In this entry, I explain briefly what this esoteric phrase actually means.
Article 22 of the Universal Declaration of Human Rights 1948 states that everyone is entitled to the realisation of the rights needed for one’s dignity and the free development of their personality. Article 29 states that ‘everyone has duties to the community in which alone the free and full development of his personality is possible.’ It is therefore clear that the existence of a personality does not ‘just happen’ or take place in a vacuum, without assistance, or support from, or interconnection with, other people. The realisation of one’s dignity and freedom of personality formation takes place in a social setting. Although the position taken in my new book is that personality, or personal identity, is created with and through others in our environments, it is argued that it is still your life and no one else’s. This is meant in the sense that no one else can live it, ‘from the inside’, for you: it is possible for you to interpret what happens to you and make decisions and take responsibility for them.
It is often considered that what makes us who we are involves a mixture of elements. These can be categorized as: (1) those we all have in common with others, (2) those we share with only certain others, and (3) those unique to that person.
(1) In terms of elements we share with all humans, these are often described as universal, in some sense pre-social or forming the essence of all persons. These include being a member of the human species, having the potential for rational thought, having a soul or spirit. Yet such views have been criticised for causing problems if a person does not seem to fit into these categories easily. These have historically been used to exclude certain members of the human species from acquiring full legal rights: for example, black people and women.
(2) Certain characteristics, such as sex, race, nationality or religion, are shared in common with others often grouped together socially or politically. The tensions in formulating some idea of personal identity for legal purposes can be seen in the way ‘Identity Politics’ has developed. There are claims for equality, but these are then made on the basis of differences among groups of people with defining characteristics, such as race or sex. Those people are ‘grouped’ together for the purposes of political action yet fractures soon become visible. Arranging people into groups can re-enforce stereotypes. Yet for many, these groups are inherently part of who we are, not seen as an arrangement or a choice.
We do not live alone. Who and what we are involves identification with, in the sense of finding something in common with, or being similar to, other human beings. It also almost invariably entails un-identification from others, in the sense of being different and distinct from, those others. This universal belonging, yet difference from, forms a crucial tension in our consideration of who we are: of our personal identity. The juxtaposition of belonging through similarity and difference is evident in human rights law seeking to enshrine ideas of the human; both as an individual, including as a member of certain groups or cultures, and as a member of the human species to be accorded dignity, freedom and equality. As Amartya Sen observes ‘identity can be a complicated matter…When we shift our attention from the notion of being identical to oneself to that of sharing an identity with others of a particular group the complexity increases further.’ (Sen at xi-xii)
(3) What makes a particular person unique includes ideas of continuity in his or her life, projects and choices, knowledge and understanding of their parentage, origins and past experiences, commitments to their family, intellectual capacity and talents. This description illustrates a network of values and convictions that structure and give meaning to a person’s life, making them who they are.
Jennifer Rosner states that:
‘there is nothing simple about being a self …[o]ur feelings clash, our wills waver, our desires are incompatible…We are only partly rational…Even as we doubt and deceive ourselves, we are creative, evaluative, and self-interpreting. And, always, we live with the possibility of falling apart’….
‘The ancients recognised interior conflict, but it was the moderns who squarely acknowledged the disorder, the irrationality, and the disharmony at humanity’s heart.’ (Rosner at p xv)
This ‘messy’ version of our identity, of who we are or our personality is too rarely captured in law. In law, including in human rights law, we need some sort of unity of the self or a ‘tidy self.’ However, we may have to acknowledge that, although this may be reassuring, it may also be false and encourage reducing who we are to one characteristic. This can lead to an impoverished life of narrowing aspirations, stunting creativity. However, this doesn’t need to happen.
We can seek new ideals and conceptions of the self that can accommodate the ambivalence, incoherence, and irrationality that mark our human experience in our ‘messy lives.’ Looking at the way our environment shapes our personalities can provide insights into this.
Jill continues this discussion in her blog ‘Who does the law think we are?‘. 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)
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.
