Beyond Disability Civil Rights

Hastings Law Journal, Vol. 58, p. 1203, 2007

William & Mary Law School Research Paper No. 09-38

39 Pages Posted: 12 Feb 2010  

Michael Ashley Stein

Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights

Penelope J. S. Stein

Harvard Law School

Date Written: 2007

Abstract

This Article argues that to be effective both domestic and international disability rights must adopt a disability human rights paradigm. Such a framework combines the type of civil and political rights provided by antidiscrimination legislation (also called negative or first-generation rights) with the full spectrum of social, cultural, and economic measures (also called positive or second-generation rights) bestowed by many human rights treaties. By acting holistically, this agenda accounts for factors normally exogenous to civil rights laws and ensures that individuals can flourish and participate in their societies. Accordingly, our intention is to share some thoughts on how to best provide disabled citizens with equal opportunity rather than “merely” equal treatment. Internationally, States and civil society organizations have been developing innovative and effective equality measures. We draw on their experiences in providing examples of how disability legislation ! and policy can be developed to implement a more holistic human rights approach. These lessons are also pertinent for invigorating the ADA.

The Article proceeds as follows: Parts I and II briefly overview the origins, moral salience, and limitations of the social model’s disability civil rights agenda. Next, Part III advocates for a more integrated, human rights-based approach to disabled empowerment based on a disability human rights paradigm as exemplified by the forthcoming UN Disability Rights Convention. Finally, Part IV briefly illustrates how international practices, in line with a disability human rights based framework can facilitate the development of more effective disability legislation and policy.

Keywords: Disability, Civil Rights, Human Rights, United Nations, Employment Law

Suggested Citation

Stein, Michael Ashley and Stein, Penelope J. S., Beyond Disability Civil Rights (2007). Hastings Law Journal, Vol. 58, p. 1203, 2007; William & Mary Law School Research Paper No. 09-38. Available at SSRN: https://ssrn.com/abstract=1552010 or http://dx.doi.org/10.2139/ssrn.1552010

Michael Ashley Stein (Contact Author)

Visiting Professor, Harvard Law School ( email )

1585 Massachussetts Avenue
Austin Hall 305
Cambridge, MA 02138
United States
617-495-1726 (Phone)

University of Pretoria Faculty of Law, Centre for Human Rights ( email )

Private Bag X20
Hatfield 0028
Pretoria
South Africa

Penelope J. S. Stein

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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