Hostname: page-component-74656f9884-2dmjx Total loading time: 0 Render date: 2026-11-07T20:37:10.862Z Has data issue: false hasContentIssue false
  • English
  • Français

Membership Rights: The Individual Rights of Group Members

Published online by Cambridge University Press:  20 August 2019

Adi Goldiner

Abstract

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.

Keywords

Disability rightshuman rightsgroup rightsmembership rightsreasonable accommodationsderivative rights

Information

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 2 , August 2019 , pp. 343 - 364
Copyright
© Canadian Journal of Law & Jurisprudence 2019 

To back up political claims and advocate for legal rights, individuals often invoke the moral rights that they hold as members of certain groups or social categories. Yet, despite this, little theoretical work has been done to clarify the nature of those individual rights of group members. This paper develops a descriptive account of these rights, as a distinct category of group-related rights which I will call ‘membership rights’.Footnote 1

To explore the paper’s broader contention, I use the right of persons with disabilities, or disabled people,Footnote 2 to reasonable accommodations as a paradigmatic example of membership rights. This right involves entitlements to modifications in one’s surroundings ensuring the exercise of other rights and freedoms.

Disabled people’s right to reasonable accommodations was first enacted in the American Rehabilitation Act of 1973.Footnote 3 It was later adopted almost verbatim in the Americans with Disabilities Act of 1990, which requires reasonable accommodations for disabled people in employment, government services and places of public accommodations.Footnote 4 The Act stipulates that a denial of reasonable accommodations is a form of unlawful discrimination against disabled people.Footnote 5

The right to reasonable accommodations may involve a myriad of entitlements and correlating duties depending on its specific context. For example, in employment it requires employers to provide alterations in the workplace in connection with a particular job to meet the specific needs of an employee or job seeker who is disabled.Footnote 6 Accommodations can involve alteration of the physical work environment, such as ramping stairs, adjusting sink height, or widening entryways; or alterations to the way jobs are structured, such as revising job requirements, reassigning employee responsibilities, allowing flexible working hours, or allowing work from home.Footnote 7

Reasonable accommodations provisions have since become a regular feature of contemporary disability rights law in other national and transnational contexts.Footnote 8 Importantly, the Convention on the Rights of Persons with Disabilities defines reasonable accommodations as the “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.Footnote 9 It is thus understood as requiring changes to social and structural conditions that exclude disabled people from full participation in social, economic and political life.

The legal articulations of membership rights serve as a good starting point for my analysis, although the latter focuses primarily on moral membership rights not legal membership rights. The drafters of legal membership rights typically draw inspiration from group members’ moral rights, and strive to reflect the latter in the law.Footnote 10 Given this close relation between moral and legal rights, especially in this context, my discussion is both informed by and has significant implications for the law.

My account focuses on three features that distinguish membership rights from other categories of rights. Beginning with identifying who holds membership rights, membership rights are distinguished from typical group rights (section 1) and from human rights (section 2). Unlike other categories of rights, the grounding of membership rights is inextricably linked to a group member’s ‘special circumstances’ (section 3), or ‘special interests’ (section 4). Thirdly, membership rights have a distinct content that distinguishes them from rights in other categories (section 5). I conclude by considering some of the practical benefits that may arise from recognizing the distinctness of membership rights (section 6).

1. Membership Rights and Group Rights

Membership rights are rights that only individual members of certain groups or social categories hold. I use the terms ‘group’ and ‘social category’ interchangeably, taking both to denote a number of people with shared interests, typically giving rise to a shared sense of identity.Footnote 11

In the first instance, based on this definition of a ‘group’, it should be clear why the category of membership rights does not include the rights that people hold as members of some group, whereby group members do not typically have a shared sense of identity. This is because not every interest that people have in common gives rise to a shared sense of identity. Consider, for example, people’s rights as shareholders. Shareholders have a shared interest that the company they jointly own does well. But, given that having some shared interest as a shareholder does not, typically, give rise to a shared sense of identity, shareholders do not, on my account, comprise a group or social category. Therefore, shareholders’ rights are not membership rights.

While group members’ shared sense of identity is a typical feature of people holding membership rights, it is important to clarify that self-identifying as members of the group is not a precondition for holding membership rights.Footnote 12 This is because what grounds membership rights are the special interests and circumstances that members of the group have as individuals. The crucial point is that the interests that people share with other members of the group do, typically, give rise to a sense of shared identity, but they need not give rise to a sense of shared identity for each and every member of the group.

Consider disabled people’s right to reasonable accommodations. Disabled people arguably share certain circumstances, such as facing social, economic and political exclusion due to inaccessible public accommodations and services. These circumstances give rise to a shared sense of identity as members of the disability community, or a minority group.Footnote 13 Yet, not all people who are subject to the same circumstances identify as disabled. For example, some people may want to differentiate themselves from other disabled people in order to sustain an appearance of nondisabled.Footnote 14 Still, regardless of the way they perceive themselves in relation to the group, people still hold membership rights as disabled people, insofar as they have the special circumstances that ground these rights.

Secondly, only rights that are held by individual members of the group are membership rights. Thus, membership rights differ from group rights, which are held by groups as groups, that is as collectives.Footnote 15 As typically discussed, group rights include the right to self-determination, language rights, rights of cultural preservation, and special representation rights. These are rights that groups hold as collectives. By comparison, the right to reasonable accommodations is a right that every disabled person holds, not disabled people as a group, and accordingly it is not a group right, but a membership right.

Relatedly, people holding membership rights do not necessarily comprise a group with some shared culture, which is a typical feature of groups holding group rights. In fact, group rights are often grounded in group members’ interests in protecting their shared culture. The group right to cultural preservation, including, for example, a minority group’s right to preserve its language, clearly demonstrates this point. But membership rights are not based on some group’s shared culture. So, for example, disabled people—who do not necessarily have a shared culture and thus might not hold rights as a group—can hold membership rights.Footnote 16

Although people hold membership rights individually, belonging to the group still plays a role in the concept of membership rights. Firstly, due to the general nature of rights, group membership enables identifying who the right holders are.Footnote 17 Appealing to some category that delimits who holds the right makes it unnecessary to examine the interests and circumstances of each putative right holder to determine whether one in fact holds that right. As long as the putative right holder falls within the relevant category—one possesses the right. Thus, for example, human rights are held by all human beings; it is unnecessary to examine the interests and circumstances of each human being to determine whether one holds human rights. In the same manner, all disabled people hold disability rights, which may vary according to the particular context. Simply put: all members of the group hold membership rights.

It is important to clarify that membership in some group does not, in and of itself, give rise to membership rights. When one holds a right in virtue of one’s membership it is an ‘institutional right’: it is held by individuals because of their membership in some institution. That is, their membership is the basis of the right, not some other feature.Footnote 18 This type of institutional rights is best illustrated by the rights of members in clubs or unions. For example, one’s right to use the rehearsal room in the club derives from one’s club membership, so the right exists in virtue of one’s membership.

By contrast, one does not hold membership rights in virtue of one’s membership in some social category. For example, one does not hold the right to reasonable accommodations in virtue of his membership in the group of disabled people. Rather, it is one’s special interests as a disabled person that ground the right. In other words, group membership does not ground membership rights but is a feature of those holding membership rights.

Group membership delimits those who hold membership rights. Practically speaking, this epistemic role of membership can boost efforts to secure membership rights by facilitating the mobilization of people to claim their rights. Delimiting those who hold the right allows people to self-identify as right holders in virtue of their group membership, and it also enables overcoming possible coordination problems between them. Furthermore, clarifying whose interests are at stake can bolster political support from group members and their allies. Finally, policy makers can deploy the category of right holders to allocate resources needed to protect specific membership rights.

Moreover, group membership underpins solidarity among its members. I take solidarity, in this context, to denote shared interests in and commitment to securing the rights of group members.Footnote 19 This kind of solidarity is clearly evident in practice: group members who advocate for the legal and political recognition of membership rights often work under the premise that securing the rights of all group members is a shared interest. For example, the disability rights movement arguably grew from disabled people’s realization that they had common experiences and shared goals.Footnote 20 Disabled activists have championed political unity, setting aside medical diagnoses that divide disabled people into subgroups, while emphasizing the links between different sorts of oppression against disabled people.Footnote 21 More broadly, the disability rights movement famously adopted the slogan: ‘nothing about us without us’, which reflects the belief that group members are committed to securing the collective interests of group members, and can speak on their behalf.

But again, having a sense of solidarity is not a precondition for individuals to hold membership rights. Solidarity typically exists between some members of the group, underlying the group’s political and legal struggle to secure the rights of all group members. And yet, individual members of the group who deny having solidarity with other group members still hold membership rights. For example, a disabled person who denies having solidarity with other disabled people still holds the disability right to reasonable accommodations. This is because membership rights are fundamentally individually held rights. Thus, solidarity is a feature of the group, not necessarily of its individual members.

2. Membership Rights and Human Rights

As membership rights are only held by people who belong to some defined group, these rights differ from the common conception of human rights, as rights that all human beings hold.Footnote 22 For instance, unlike the rights to liberty, privacy, and housing—rights that all people hold—the right to reasonable accommodations—is a type of right that only members of some defined group, such as disabled people, hold.

Still, people often mistakenly refer to the rights I call membership rights as ‘human rights’. This conflation might be driven by one of two conceptions of human rights: the conditional view or the capabilities approach. However, as I will explain, the distinction between human rights and membership rights holds: the conditional view does not override the difference between the two types of rights while the capabilities approach simply cannot account for all membership rights.

The conditional view of human rights holds that while some human rights apply to all people at all times, other human rights are conditional, applying only when certain circumstances obtain. On this view, whether or not the circumstances stipulated in the content of the right obtain—people nevertheless hold the right. When the right does not apply, it does not confer entitlements onto the right holders nor duties on others. For example, the right to a fair trial is a conditional human right: all people hold the right that only applies when a person is charged with a crime. Only when one is charged with a crime, the right confers entitlements upon him, for example, to adequate legal representation, or duties upon others, for example, to hold a public trial.

Deploying the conditional view, some might claim that the rights I call membership rights are simply instances of conditional human rights, and accordingly object to the distinction I draw between the two types of rights. For example, much like the human right to a fair trial, they might claim that the right to reasonable accommodations is a human right that all people hold, but it only applies when circumstances of disability obtain.

My response to the objection from the conditional view is threefold. Firstly, the conditional view does not, in itself, undermine the distinction between membership rights and conditional human rights. Recall that on the conditional view, all people hold both types of rights, yet membership rights only apply when circumstances unique to group members obtain. This leads to an odd outcome whereby people hold rights that do not vest entitlements or duties. Thus, for example, on the conditional view all people hold disability rights, yet these rights only apply once a person becomes disabled. If we accept the premise that one may hold a right that does not apply to her, then the distinction between membership rights and human rights stands, only it revolves not around the question of holding a right but around the question of rights’ applicability, that is, when do duties and entitlements vest.

Secondly, the objection from the conditional view should be rejected for it disregards a fundamental difference in the nature of the qualifying circumstances on each category of rights. Qualifying circumstances in the context of membership rights are neither incidental nor isolated, rather they are comprehensive with regards to the right holder’s life. When the qualifying circumstances obtain, they are exhibited in different aspects of group members’ existence, shaping a range of experiences they have in common, and accordingly often going to the heart of who group members are.Footnote 23 For example, disability affects different aspect of one’s life and therefore many—albeit not all—disabled people perceive it as an essential part of the self.Footnote 24

Conversely, qualifying circumstances stipulated in the content of conditional human rights might not bear on right holders’ identities. Being charged with a crime, for example, may affect certain aspects of one’s life, such as one’s reputation and freedom of movement for a limited time. But, by and large, other important aspects such as one’s bodily integrity, experience of pain, or access to social and economic life can remain unchanged. Therefore, being charged with a crime is presumably not a defining feature of the self.

Finally, the objection from the conditional view of human rights is based on a view incapable of distinguishing human rights from other types of rights, not just membership rights. In fact, the conditional view, insofar as this view does not stipulate other necessary features of human rights, generates an endless list of human rights even when these rights are clearly context dependent. For instance, the conditional view of human rights allows for a human right to a PhD stipend, as follows: all persons are entitled to a PhD stipend, when admitted to a PhD programme with funding.Footnote 25 But a right to a PhD stipend is clearly a contractual right, not a human right. Thus, the conditional view is an over-inclusive account of human right.Footnote 26 The objection that the conditional view generates should therefore be rejected, as it rests on a view that cannot account for any meaningful distinction between human rights and other categories of rights.

A second possible objection to my formulation of membership rights as rights that only people who belong to a particular group hold may arise from the capabilities approach to human rights.Footnote 27 On that approach, justice requires that all persons should have certain capabilities, that is “the opportunity to achieve valuable combinations of human functioning: what a person is able to do or be”.Footnote 28 Human rights, then, secure the human capabilities justice requires. For example, the human right to education secures, inter alia, the human capability to “use the senses, to imagine, think, and reason”.Footnote 29

The capabilities approach focuses on people’s pragmatic lives, and the actual opportunities that are available to them in realizing their personal choices. For example, other things being equal, on the capabilities approach, a disabled person using a wheelchair has less actual opportunities in realizing his personal choices than a nondisabled person with the exact same income (assuming the disabled person incurs more expenses relating to his disability).Footnote 30

Therefore, proponents of the capabilities approach may claim that the rights I call membership rights simply reflect people’s actual opportunities, which are a feature of their human rights. Arguably, the mere fact that some people have different actual opportunities and therefore require additional resources in order to secure their capabilities, does not make their rights conceptually distinct.Footnote 31 For instance, on the capabilities approach, affirmative measures designed to accommodate children with cognitive disabilities in the education system is a feature of their human right to education.Footnote 32

However, the capabilities approach faces substantial criticism as a theory of justice and as a theory of human rights, particularly vis-à-vis disabled people. The capabilities approach focuses on attaining a minimum threshold of functioning for each capability as a requirement for living a ‘life of human dignity’. Therefore, it implies that those who cannot reach the minimum threshold of functioning, such as people with severe mental disabilities, are not living dignified ‘truly human’ lives.Footnote 33 This is a troubling implication, even in the eyes of proponents of the capabilities approach, for it suggests that some disabled people are not of equal moral status.Footnote 34

Furthermore, the capabilities approach faces difficulties as a theory of human rights. If rights are grounded in the idea that people should have certain capabilities, as the capabilities approach suggests, then there is no justification for the rights of people who have no prospect of reaching even a minimum threshold of functioning.Footnote 35 For example, on the capabilities approach, there is no justification for the rights of people in a permanent vegetative state or anencephalic, children who will not mature to adulthood,Footnote 36 or severely disabled persons who are not likely to ever reach the minimum of the capability to have good health or to avoid non-beneficial pain.Footnote 37 Importantly, this is not because they cannot completely fulfil the right, but rather because they arguably lack the features that ground these rights, namely the potential of functioning beyond a certain threshold.Footnote 38 Given that all people hold human rights, even those who lack potential for reaching the minimum threshold of capability, the capability approach provides an insufficient account of human rights. More to the point, the capabilities approach fails to account for all membership rights, in particular those rights held by group members, such as disabled people, who cannot reach the minimum threshold of functioning.Footnote 39

3. Derivative Membership Rights

Although membership rights are distinct from human rights, human rights can ground membership rights in some circumstances. A membership right is thus conceived, when ‘special circumstances’—that is, circumstances that are unique to group members—are such that securing some right that they hold requires a right distinct to the members of that group, that is—it requires a membership right.

The right of disabled people to reasonable accommodations demonstrates this type of grounding.Footnote 40 Under the circumstances of disability, securing certain human rights, that is rights people hold as human beings, requires accommodations. For example, securing disabled people’s right to education requires accommodations in educational services such as wheelchair-accessible classrooms or audio recordings of textbooks.Footnote 41 The grounding of disabled people’s right to reasonable accommodations thus has two parts: a) some human right is held by disabled people as human beings, and b) the special circumstances of disabled people are so that securing the right requires additional protections. Thus, the right to reasonable accommodations is a membership right grounded in human rights, under the special circumstances of disability.Footnote 42

When a right is grounded in another right in the way illustrated above, the former is what Joseph Raz calls a ‘derivative right’—namely a right that is grounded in another right, which provides a justification for the derivative right.Footnote 43 For instance, when some human right grounds disabled people’s right to reasonable accommodations, this right derives from the human right. As a derivative right, the right to reasonable accommodations draws its normative force from the right that grounds it.

When membership rights are grounded in other rights, they are a particular type of derivative rights. These rights arise from other rights under some set of circumstances that is unique to members of the group. For example, the circumstances unique to disabled people are such that many aspects of the education system are inaccessible to them. For instance, schools and classrooms are often physically inaccessible to wheelchair users, and textbooks are often in a format inaccessible to people with sensory or cognitive impairments. Securing disabled people’s right to education requires certain adjustments, as mentioned above. Thus, disabled people’s right to education gives rise to their membership right to reasonable accommodations in education.

The idea that human rights ground certain rights that only people who belong to some defined group hold, is found in Will Kymlicka’s well-known account of group-differentiated rights.Footnote 44 Kymlicka claims that individual freedoms ground certain group-differentiated rights for particular groups within the larger society. Under the umbrella of ‘group-differentiated rights’ Kymlicka discusses rights that are held by groups as groups, and rights that are held by members of groups, call it individual group-differentiated rights.Footnote 45

Kymlicka’s conceptualization of individual group-differentiated rights has a similar structure to my conceptualization of membership rights as derivative rights. In particular, Kymlicka discusses a right to exemption from laws that disadvantage members of the group due to their religious practices.Footnote 46 In both concepts, only people who belong to a defined group hold the right, not all people. In addition, some human rights that people have as human beings ground individual group-differentiated rights as well as membership rights.

Nevertheless, Kymlicka’s account of individual group-differentiated rights does not include all membership rights, as some seem to suggest.Footnote 47 Rather, the individual group-differentiated rights Kymlicka discusses are a particular instance of derivative membership rights. Kymlicka examines the rights of national and ethnic minorities, and draws upon the features of such minority groups to ground group-differentiated rights.Footnote 48 In his view, groups’ distinct cultures—that encompass both public and private spheres—give rise to group-differentiated rights because the ability to exercise individual freedoms depends on the existence of a culture.Footnote 49 Stated differently, Kymlicka holds that individual freedoms require group-differentiated rights under the special circumstances of belonging to a group with a distinct culture. For example, on Kymlicka’s account, the right to individual freedom grounds the right of Jews and Muslims to exemptions from Sunday closing legislation. For members of a Jewish or Muslim minority group, exemptions from Sunday closing laws enable group members to make meaningful choices regarding their day of rest, or, more generally, religious observance and cultural practices.

By contrast, those who belong to social categories, such as disabled people, cut across ethnic and national lines and do not, necessarily, have a shared culture.Footnote 50 As Kymlicka takes having a shared culture to be the basis of group-differentiated rights, his category of rights does not include the rights of those who belong to social categories that are not also ethnic or national minority groups. Therefore, Kymlicka’s account of group-differentiated rights does not capture the full range of membership rights, but it is a particular instance of derivative membership rights based on individual freedoms, under the circumstances of a group’s distinct culture.

In the same way that Kymlicka’s individual group-differentiated rights derive from the value of individual freedom, other membership rights may derive from other rights. Most notably, the right to equality and the right against discrimination are often perceived as giving rise to many of the rights that may fall within the category of membership rights.Footnote 51 A membership right derives from the right to equality when it is grounded in the difference between the right holder and someone else. For instance, disabled people’s right to reasonable accommodations is often perceived as deriving from disabled people’s right to equality of opportunities in social, economic and political life.Footnote 52

My characterization of membership rights as derivative rights grounded in other rights may strike some as redundant. James Nickel, for example, argues that the rights I call membership rights are only superficially group-differentiated. Instead he claims that these rights are universal rights applied to minorities, calling them ‘Minority Rights’.Footnote 53 For example, Nickel claims that the right of women to prenatal care is an instance of the universal right to healthcare, applied to women. Stated differently, according to Nickel, the rights that I call membership rights simply “spell out the implications of universal rights for people who face distinct problems”.Footnote 54

However, Nickel’s scepticism regarding the group-differentiated aspect of the rights I call derivative membership rights rests on his downplaying the common nature of these rights. As mentioned above, membership rights derive from other rights when group members are subject to a set of special circumstances that is unique to them, as well as often comprehensive with regards to their lives and often their sense of self.Footnote 55 In addition, group members’ shared set of circumstances, oftentimes gives rise to a host of derivative rights, which, again, all members of the group hold.

Moreover, Nickel’s formulation of the rights I call membership rights as universally held human rights applied to minorities, cannot account for group members’ rights, which do not derive from human rights.

4. Non-Derivative Membership Rights

Unlike membership rights that derive from other rights, some membership rights might be based directly on the ‘special interests’ of group members. That is, the grounding of such rights does not appeal to other rights. Rather, the interests that only group members have, or that only group members have to a sufficient extent, ground the right.

Ascertaining what grounds a particular membership right—whether it is a derivative or non-derivative membership right—is not always straightforward. For instance, some may claim that the right to reasonable accommodations in employment, which has been described above as a derivative right, is best understood as grounded in disabled people’s interest in social inclusion and in political participation.Footnote 56 Given that disabled people are systematically excluded from the workforce, their interests arguably justify holding employers under the duty to modify certain aspects of the workplace and job requirements. Despite this occasional ambiguity regarding the specific grounding of a particular membership right, the important point is that the grounding of membership rights is inextricably linked to the distinct features of group members, be it their special interests or special circumstances.

Notably, people outside the group may have interests of the same kind, but not to a sufficient extent. For example, people outside the group of disabled people have an interest in participating in social and economic life. Yet only in the case of group members are these interests sufficiently strong to justify holding others under certain duties. Thus, for example, only disabled people’s interest in social inclusion and participating in economic life is sufficient to ground correlating duties on employers, due to systematic exclusion they face.

When a membership right does not derive from another right, it is, in Raz’s terms, a core right, namely—a right based on an interest that “figures essentially” in the justification of the right.Footnote 57 In other words, it is a right that follows directly from the interest of some right-holder.Footnote 58

David Miller raises two problems with regards to those rights I call non-derivative membership rights.Footnote 59 In the first instance, Miller claims that when a right is based on some interest that only group members have, the content of that right is indeterminate.Footnote 60 On Miller’s view, when only members of some group hold a certain right, the principle of equality determines the content of the right. For example, the content of disabled people’s right to reasonable accommodations in education is determined by the difference between nondisabled people’s entitlements in education on the one hand, and disabled people’s special circumstances, which require adjustments to secure the same entitlements, on the other hand. If nondisabled people are entitled to attend state funded elementary public schools, then the right to reasonable accommodations in education consists in state funded adjustments in elementary schools’ infrastructure and practices, to enable disabled people to attend these schools. By contrast, if a right is based on interests that only group members have, Miller claims that it is unclear what content the right consists of; what the right requires, which duties correlate to the right, and who bears them. Thus, Miller argues, the rights I call non-derivative membership rights are indeterminate and therefore problematic.

The first problem Miller points out presents a conceptual difficulty, but it is not unique to membership rights. The problem of indeterminacy turns on the ambiguity of some rights, primarily with regards to the content of their correlating duties, and to the identity of the bearers of those duties. Without specifications on such matters, it is unclear what a right requires, of whom it is required, and when it is violated. Therefore, in those cases, it is unclear whether a moral right exists at all. But this problem presents itself in connection with certain human rights as well, for example, the right to education and the right to health. Arguably, both rights are rights to receive goods and services, yet neither right requires any specific good or service. These rights are therefore indeterminate (or at the very least they are under-determinate as they necessarily require services that secure right holders’ access to education and health respectively).Footnote 61 Given that the problem of indeterminacy is common to some membership rights and some human rights, it does not undermine non-derivative membership rights per se as moral rights.

Secondly, Miller holds that if a right is based on some interest that only members of the group have, it will be difficult to persuade people outside the group that the right exists. Due to this difficulty, Miller claims, it might be impossible to agree on the right.Footnote 62 Writing on the rights of citizens, Miller seems to argue that an ability to justify a right to all members of the political community, in order to agree on the right, is fundamental to the legitimacy of citizenship rights.

Miller’s second point depicts a practical difficulty, which seems overstated in relation to other claims for rights. Persuading people outside the group that members of the group have certain rights is often a challenging task, regardless of what grounds the claimed rights. What eventually brings people to agree on certain rights, whether they share the interest that gives rise to the right or not, is their ability to relate and to empathise, without having to experience the interest first-hand. Moreover, even if it were impossible to persuade people outside the group to accept that some membership right exists, this may pose a practical problem in enacting non-derivative legal rights, but from this it does not follow that there is no moral right in play.

Accepting that some membership rights are based directly on the interests of right holders may lead some to criticize my account of membership rights for being too broad, arguing that it encompasses all individually held rights, even human rights. Some view human rights as based on the interests of individuals who are members of the category of human beings, and accordingly may claim that human rights are simply an instance of what I call membership rights. If this is correct, then what is the difference between human rights and membership rights?

My response to this charge is twofold. First, some human rights theorists would object to the conceptualizing human rights as membership rights for this categorization cannot account for the special moral status, or human dignity, which grounds human rights.Footnote 63 Indeed, membership rights are not grounded in some special moral status or dignity that only group members have. If membership rights were grounded in some special moral status, this would suggest that group members have some moral status or dignity that differentiates them from other people, namely—from those who do not hold membership rights. As people holding membership rights have the same moral status and dignity as other human beings, their rights as members of the group cannot be based on these.

Second, even if one conceives human rights as based solely on human interests, and therefore considers human rights as an instance of non-derivative membership rights, it does not follow that my account of membership rights is redundant. Specifically, the conceptualization of membership rights summons a host of theoretical questions, which also arise in relation to human rights. For example, the question of who belongs to the group of right holders is central to holding membership rights, and it is also fundamental in connection with human rights. In addition, on an interest-based account of human rights, both membership rights and human rights invite the question of when people’s interests give rise to rights.Footnote 64 Exploring such questions in the broader context of membership rights can inform the way we think about them in relation to human rights, and vice versa.

5. The Distinct Content of Membership Rights

Thus far, I have argued that membership rights differ from other types of rights in two respects. Firstly, only people who belong to some group or social category—wherein members have some shared interest and, to some extent, a shared sense of identity and solidarity—hold membership rights. Secondly, membership rights are based on the special interests and circumstances of group members. If, under the special circumstances of group members, securing some right requires additional protections, it gives rise to derivative membership rights. But, when some special interest gives rise to the membership right, the latter is a non-derivative right.

A third feature of membership rights is their distinct content: membership rights include entitlements and correlating duties that are distinct from those included in other types of rights, such as group rights or human rights. Thus, group rights, human rights—or any combination thereof—do not secure membership rights.Footnote 65

Where a membership right seems to derive from some other right, it is often hard to discern between the content of the membership right and that of its grounding right. This is because a violation of the membership right typically amounts to a violation of the grounding right too. Thus, disabled people’s right to reasonable accommodations is arguably a derivative membership right, correlating with duties to provide modification to ensure right holders’ human rights.Footnote 66 Typically, a violation of the right to reasonable accommodations amounts to a violation of the human right that grounds it, because without modifications and adjustments disabled people’s human rights are not secured.

However, this overlap need not lead us astray. A derivative membership right is not simply a concrete instance of the grounding right, rather it is a distinct right that is justified by the grounding right. Even if a violation of the derivative right typically amounts to a violation of the grounding right, the grounding right does not seem to include all the entitlements and correlating duties that a derivative membership right includes. For example, the right to education does not include as its correlative a duty to provide modifications in education to all right holders. Only those with special circumstances or special interests, such as disabled people, are entitled to modifications in education as their right to reasonable accommodations requires.

In addition, membership rights may even consist in entitlements and duties that extend beyond the content of their grounding human right. Failure to comply with these duties can amount to a violation of the membership right, but does not necessarily amount to a violation of the grounding human rights. For instance, one can argue that the right to reasonable accommodations not only grounds duties to provide modifications to secure disabled people’s human rights, but it may also include right holder’s privilege to choose among different types of modifications. Sometimes, the suggested modifications can overburden the disabled person and thus affects his preference to use them. Therefore, not providing a disabled person the modification of choice can amount, on some circumstances, to a violation of one’s right to reasonable accommodations, even where an alternative modification secures the grounding human right.

Consider, for example, the different types of modifications that can secure a wheelchair user’s access to public buildings. To overcome stairs barrier, one can build a ramp, install a lift, install a small vertical lift, or assign people to carry wheelchair users up the stairs. However, many disabled people feel that being carried up the stairs is dangerous as well as degrading. On such circumstances, the wheelchair user arguably has the right to refuse to be carried up the stairs and to choose one of the other options for accommodations. This is so even if being carried up the stairs will, in practice, allow access to the public building.

To take another example, consider the various types of modifications available to secure disabled people’s right to education. Textbooks, for instance, can be made accessible to visually impaired disabled people through either braille or audio recordings. Providing either one of these modifications secures a particular aspect of a disabled person’s right to education. However, providing only one type of modification may not secure the right to reasonable accommodations unless it is the modification that the right holder chooses. For example, for a disabled person not trained in braille, audio books might be significantly easier to access and thus preferable. Obtaining braille proficiency might be too burdensome on the right holder. Thus, the right to reasonable accommodations in education arguably includes the right holder’s privilege to choose between different types of modifications that make textbooks accessible. Accordingly, only providing textbooks in braille may amount to a violation of the right to reasonable accommodations, insofar as the right holder prefers a different type of modification.

Relatedly, rights without distinct content are not membership rights.Footnote 67 While this might seem like an obvious point, some nevertheless conflate certain human rights with rights that only members of certain groups or social categories hold. This is particularly common when people mention the special circumstances of group members, usually to denote some past injustice, when describing group members’ human rights.Footnote 68 Consider, for example, women’s human right to own property. Women hold this right as human beings. Still, given that in some societies women have been deprived of their property rights, some people make a point of saying that women hold the right to own property, regardless of their gender. Thus, the statement of the right refers to women’s special circumstances—their gender. This may lead to regarding women’s property rights as what I call membership right. However, women’s right to own property arguably does not have distinct content, neither in its entitlements nor in its correlating duties. Without distinct content, rights, like women’s right to own property, are not membership rights.

6. The Benefits of Recognizing the Category of Membership Rights

Some believe that identifying group members’ rights as human rights is politically appealing, as the identification utilizes the distinct importance ascribed to human rights.Footnote 69 However, in light of membership rights’ distinct content, advocating for legal and political protection of membership rights by identifying them as human rights has limited utility. Indeed, in practice, there has been little success in attempts to secure certain disability rights by appealing to human rights law.Footnote 70

By contrast, recognizing the category of membership rights can empower advocates in their efforts to secure the individual rights of group members. For one, the concept of membership rights opens up the possibility that membership rights are immune to charges typically made against human rights. For instance, human rights notably face the charge of parochialism, namely—they are criticized for being western, rather than universal, moral concepts. Conversely, membership rights might be less susceptible to the charge of parochialism, as people have been invoking their rights as members of certain groups not only in the western world. For instance, the first global conference on the rights of disabled people was held in Singapore, and states of what is often referred to as ‘the global south’ were the ones sponsoring the United Nations’ General Assembly’s Resolution to initiate a group-specific convention on the rights of persons with disabilities.Footnote 71 Thus, distinguishing between the two types of rights can empower advocates in claiming membership rights.

Another advantage of the category of membership rights is over group rights. Group rights are sometimes criticized for overriding the individual rights of group members. Given that group members hold membership rights individually, not collectively, membership rights might be immune to this charge. In addition, group rights are sometimes perceived as unjustifiably privileging certain social groups over others.Footnote 72 But, as membership rights are grounded in the special interests and circumstances of each and every member of the group, they are immune to the latter charge as well. Therefore, group members claiming their rights can utilize the distinction between group rights and membership rights in order to strengthen their claims.

In addition, drawing on a developed account of membership rights, advocacy groups can develop a distinct rhetoric to discuss membership rights, one that will better support their practice, instead of only deferring to human rights discourse. For example, they could develop nuanced vocabulary to captures group members’ common interest in securing membership rights, thereby underlining the importance of securing these rights for all group members, not just for some. They can also form political alliances by pushing forward the idea that membership rights also benefit members outside the group. For instance, they can demonstrate the ways in which reasonable accommodations made for disabled people also benefit nondisabled third parties.Footnote 73

More concretely, deploying the concept of membership rights allows group members to track their special interests and special circumstances in order to devise nuanced approaches to resolve the distinct challenges they face. For instance, disabled people can devise distinct approaches to resolve the persistent problem of group members’ workplace exclusion.Footnote 74 In addition, recognizing the category of membership rights can inform debates about proposed legal reforms pertaining to group members’ rights. For instance, some argue that the right to reasonable accommodations in employment should be reconstructed as a universal right that all people who are capable of working hold, not only disabled people or other members of defined groups.Footnote 75 The proposed reconstruction arguably conceptualizes the membership right as a human right. This reconceptualization may entail advantages, especially if it can enable the inclusion of more people in the active workforce, generating both economic and social benefits.Footnote 76 But it may also bring with it disadvantages for disabled people who currently hold the right, for example, by diluting the resources available to secure the right. Such a debate on the future of the right to reasonable accommodations can benefit from a clearer grasp of the conceptual differences between the two types of rights.

Finally, to the extent that moral rights play a role in shaping public policy, a clearer understanding of membership rights can inform the design of public policy in relevant fields. Policy makers can hone in on the special interests and circumstances of group members to identify who the right holders are and to better serve their needs. For example, crystalizing the circumstances giving rise to disabled children’s membership rights in education will enable obtaining a better estimate of the number of deserving children and the costs of securing their rights.

7. Conclusion

There is considerable ambiguity in both terminology and theorizing surrounding the rights of members of groups and social categories. Focusing on the paradigmatic case of disabled people’s right to reasonable accommodations, this paper brought more clarity to our understanding of the nature, grounding and content of membership rights.

In particular, I have identified three features distinguishing membership rights from other types of rights: Firstly, membership rights neither fit the concept of human rights, as not all people hold them, nor are they group rights, as they are held by members of some group as individuals, not by groups collectively. Secondly, membership rights are grounded either in a universally held human right under the particular circumstances of group members or in the unique interests of group members. Thirdly, the content of membership rights is not reducible neither to group rights nor human rights, in the sense that membership rights include distinct entitlements and correlating duties.

The concept of membership rights invites further exploration. It facilitates an analysis of claims to extend particular membership right to include members of other social groups as right holders. For example, claims—which have been accepted in some jurisdictions—that women and older persons also hold the right to reasonable accommodations.

Moreover, the concept of membership rights can foster exploration towards identifying additional rights as membership rights. As can be expected, other rights that only disabled people hold are plausible candidates for qualifying as membership rights. Thus, the right not to be discriminated against based on disability may qualify as a membership right, as it is typically only held by disabled people.Footnote 77 Another putative membership right is the right of disabled people to live independently in the community, which includes having the opportunity to choose one’s place of residence, who to live with, as well as being provided with support services to prevent isolation.Footnote 78

Children’s rights are plausibly also membership rights as they are only held by children.Footnote 79 Specifically, children’s right to parental care—the right to special care, assistance and emotional development, seems to involve distinct content that is irreducible to children’s human rights to health or life. Recognizing children’s rights as membership rights may turn on the question of whether solidarity and a shared sense of identity exist between some children as members of a group.

Other putative membership rights include women’s rights to prenatal care, some racial ethnic and religious minorities’ rights, some LGBTQ rights, intersex rights, some older persons’ rights, some rights of the poor, and other rights of members of groups and social categories that we are yet to find.

Footnotes

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.

References

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.