«VULNERABILITY» OF THE INDIVIDUAL AND EFFECTIVENESS OF HUMAN RIGHTS: A QUESTION OF POTENTIALITY?

Abstract

Problem setting. The question of the vulnerability t is discussed here in a multitude of contexts: from our attitudes and understandings about what lives in different groups and categories in society is alike, from the socio-psychological and social-ecological meaning of being vulnerable, to the existential, mental and emotional meanings at the level of the individual. Recent research and publication analysis. The author focuses very strictly on the vulnerability of the individual and recuses the use of moral doctrines to understand individual vulnerability and he also recuses the huge literature which has focused so strongly on it. He situates himself more in line with Jean Piaget and Lawrence Kohlberg, experimental behaviour psychology and clinical psychology, where «moral» is both situated within, and constitutive of, the individual. Paper objective: The objective of the author is to give us a plurality of points of reference to understand and appreciate the vulnerability of the individual whilst giving simultaneously an account of this understand within legal philosophy. Paper main body. The author insists that we should understand the vulnerability of the individual in a broad and complex way. The article does not attempt to do so from any specific philosophical tradition nor cultural setting as the author insists that only from a situated understanding of the vulnerability of the individual can we meet the exigency of universality. The individual - and the human condition, are always vulnerable and can no more escape their vulnerability than the individual can escape their shadow. It is from this standpoint that the perspectives of human rights, their effectiveness and potentiality, introduce themselves! If human rights are also a right to do ’stupid things’, to be ’left alone’, then they could also legitimise the right of others to protect the individual from doing stupid things: a Good-Samaritan paradigm; but also a question about legitimisation, and about the questionability of using «vulnerability» to police human behaviour! And still, vulnerability used in this way can be beneficial to the individual, as we can see in the case of children, young adults, and even elderly persons with cognitive deficits, who we should protect because of their vulnerability. We should however exclude ’moral considerations ’ as a principle in our examination of vulnerability, to better understand and identify what we consider a threat to the vulnerability of the individual. In legal science, such an understanding of the «vulnerability of the individual» enables us to focus on any predatory, rapaciously, or destructive behaviour. The author therefore insists that we both need and need not, protect the individual. Examining the question of the vulnerability of the individual should give us a better insight in this ambiguity and help us better understand some aspects of predatory and criminal behaviour directed against individuals. Conclusions of the research. The author firmly insists that we should always accept the individual as their present themselves. A perfectionist stand in moral and legal philosophy is therefore firmly excluded. It is also firmly stated that protecting human vulnerability can only be done by accepting the freedom of others in their integrity.

Keywords

• уразливість
• права людини
• ефективність права
• кримінальне право
• цивільне право
• патерналізм