Abstract
Perhaps then, a way forward within the inclusion space involves a shift from traditional ethical concerns over determining right and wrong conduct (however loosely we might mean that here) to a greater focus on the language of ‘rights’. It certainly seems that ‘rights’ has a significant role to play, both for structuring the lives and opportunities of people with disabilities, and for organising their relationship with educational institutions – at least in theory. If rights are ‘justified claims upon others’, what kind of claims can citizens reasonably make upon their social institutions, their communities, and their governments?
Part of the problem is that rights come in all shapes and forms. Not only can they mean different things to different people (are they protected choices? interests? trumps?), they often operate in contradictory ways … and then whose rights count? There are also ‘legal rights’ and ‘moral rights’, with a complex relationship to each other. And then when it comes to the contested notion of ‘natural rights’, can we convincingly allocate them to individuals, and from there, forge some basic human rights? And even if we can’t, can we somehow arrive at a set of basic human protections and benefits anyway?
There are a lot of questions here aren’t there. Not all of them have very good answers. As a result, discourses centring upon rights have a number of their own problems and ambiguities – particularly within the field of inclusive education. These problems often centre upon the issues of conflicting rights, the complex contexts in which rights are asked to operate, and the philosophical underpinning of the concept of rights itself. While rights provide an indispensable foundation for an ethics of inclusive education, it will be argued that these difficulties point instead in the direction of the associated concept of ‘justice’.
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References
Andre, C., & Velasquez, M. (1990). Rights stuff. Issues in Ethics, 3(1). https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/rights-stuff. Accessed 15 Dec 2018
Balingit, M. (2018). DeVos rescinds 72 guidance documents outlining rights for students with disabilities, The Washington Post, 21 October.
Bentham, J. (1921). Anarchical fallacies: Being an examination of the Declaration of Rights issued during the French Revolution. 1843. In J. Bowring (Ed.), The Works Jeremy Bentham (Vol. 2). William Tait.
Bita, N. (2015). Surge in students with disabilities linked to violence against teachers, The Australian, 17 June.
Clapham, A. (2015). Human rights: A very short introduction. Oxford University Press.
Dickson, E. (2018). The inclusion and exclusion of students with disability related problems behaviour in mainstream Australian schools. In K. Trimmer, R. Dixon, & Y. Findlay (Eds.), The Palgrave handbook of educational law for schools. Palgrave Macmillan.
Disability Discrimination Act. (1992). (Cth). Government of Australia.
Dworkin, R. (1984). Rights as trumps. In J. Waldron (Ed.), Theories of Rights. Totowa.
Freeden, M. (1991). Rights. Open University Press.
Graham, L., Proctor, H., & Dixon, R. (2016). How schools avoid enrolling children with disabilities. The Conversation, 27 January.
Green, R. (1997). Instinct of nature: Natural law, synderesis, and the moral sense. Journal of the History of Ideas, 58(2), 173–198.
Hart, H. (1982). Essays on Bentham: Studies in Jurisprudence and Political Theory. Clarendon Press.
Henley, J. (2016). Anders Breivik’s human rights violated in prison, court rules, The Guardian, 20 April.
Higher Education Funding Act (1988) (Cth). Government of Australia.
Hobbes, T. (1994). Leviathan. 1651. E. Curley (Ed.). Hackett.
Hodal, K. (2018). Humanity is on the path to self-destruction, warns UN special rapporteur, The Guardian, 10 December.
Hohfeld, W. (1919). In W. Cook (Ed.), Fundamental legal conceptions. Yale University Press.
The Indigenous Education (Targeted Assistance) Act. (2000). (Cth). Government of Australia.
Ivison, D. (2008). Rights. Acumen.
Jones, G., Cardinal, D., & Hayward, J. (2006). Moral philosophy: A guide to ethical theory. Hodder Education.
Kenny, A. (2010). A new history of western philosophy. Oxford University Press.
Kramer, M. (2001). Getting rights right. In M. Kramer (Ed.), Rights, wrongs, and responsibilities (pp. 28–95). Macmillan.
Lazarev, N. (2005). Hohfeld’s analysis of rights: An essential approach to a conceptual and practical understanding of the nature of rights. Murdoch University Electronic Journal of Law, 9, 1–15. http://classic.austlii.edu.au/au/journals/MurUEJL/2005/9.html. Accessed 15 Dec
L v Minister for Education for the State of Queensland (No. 2) [1995] 1 QADR 207.
MacCormick, N. (1977). Rights in legislation. In P. Hacker & J. Raz (Eds.), Law, morality and society: Essays in honour of H.L.A. Hart. Oxford University Press.
Matua, M. (2002). Human rights: A political and cultural critique. University of Pennsylvania Press.
Migration Act. (1958). (Cth). Government of Australia.
Nozick, R. (1974). Anarchy, state and utopia. Blackwell.
Pagden, A. (2003). Human rights, natural rights, and Europe’s imperial legacy. Political Theory, 31(2), 171–199.
People With Disabilities Australia (PWDA). (2018). Human Rights Violations. https://pwd.org.au/student-section/human-rights-violations/. Accessed 15 Dec 2018.
Purvis v State of New South Wales (Department of Education and Training) (2003) 271 CLR 92.
Raz, J. (1986a). On the nature of rights. Mind, 93(370), 194–214.
Raz, J. (1986b). The morality of freedom. Oxford University Press.
Rousseau, J. (2016). The social contract. 1762. Maxtor
Scanlon, T. (2003). The difficulty of tolerance. Cambridge University Press.
Schools Assistance Act (2008) (Cth). Government of Australia.
Slee, R. (1996). Clauses of conditionality. In L. Barton (Ed.), Disability and society: Emerging issues and insights. Longman.
Smith, G. (2012). Bentham’s attack on natural rights. Liberarianism.org. https://www.libertarianism.org/publications/essays/excursions/jeremy-benthams-attack-natural-rights. Accessed: 15 Dec 2018.
Sreenivasan, G. (2005). A hybrid theory of claim-rights. Oxford Journal of Legal Studies, 25, 257–274.
Steiner, H. (2007). Moral rights. In D. Copp (Ed.), The Oxford handbook of moral rights. Oxford University Press.
United Nations. (1948). Universal Declaration of Human Rights, (UDHR).
United Nations. (1965). Convention on the Elimination of All Forms of Racial Discrimination, (CERD).
United Nations. (1966). International Covenant on Economic, Social and Cultural Rights, (ISESCR).
United Nations. (1979). Convention on the Elimination of All Forms of Discrimination against women (CERD),
United Nations. (1989). United Nations Convention on the Rights of the Child, (UNCRC).
United Nations. (2001). A general Comment – Committee on the Rights of the Child.
United Nations Framework Convention on Climate Change (The Kyoto Protocol). (2005). (UNFCCC)
United Nations. (2006). Convention on the Rights of Persons with Disabilities. (CRPD).
United Nations Framework Convention on Climate Change (The Copenhagen Accord). (2007). (UNFCCC)
United Nations Framework Convention on Climate Change (The Paris Agreement). (2015). (UNFCCC)
Vasak, K. (1977). Human rights: A thirty-year struggle: the sustained efforts to give force of law to the Universal Declaration of Human Rights (UNESCO Courier 30(11)). UNESCO.
Walsh, T., & Thomas, K. (2018). Children with special needs and the right to education. https://espace.library.uq.edu.au/data/UQ_398625. Accessed 15 Dec 2018.
Wenar, L. (2013). The nature of claim rights. Ethics, 123(2), 202–229.
Wenar, L. (2015). Rights. In E. Zalta (Ed.), The Stanford encyclopedia of philosophy. https://plato.stanford.edu/archives/fall2015/entries/rights/. Accessed 15 Dec 2018.
Zanghellini, A. (2017). Raz on rights: Human rights, fundamental rights and balancing. Ration Juris, 30(1), 5–40.
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Slee, R., Tait, G. (2022). Disability and the Limitations of ‘Rights’. In: Ethics and Inclusive Education. Inclusive Learning and Educational Equity, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-030-97435-0_4
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