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Constructing a legal theory of disability

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Anita Joseph

on 18 March 2014

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Transcript of Constructing a legal theory of disability

Constructing a legal theory of disability

“the elusive nature of impairment, particularly when lived out in a social context, and the problematical difficulties in some instances of forecasting prognosis do not easily fit with the law`s focus on rules, formulae and predictability.”

Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
The "ambivalent" attitude of law towards people with disabilities
key ideas
1. The language of disability studies and representations of
disability and how they impact on law
2. The law's "ambivalent" attitude towards people with disabilities
3. Disability as a negative state in law
4. Vulnerability and achieving equality
5. The interaction between disability studies and law
6. Relevance of disability to studying and practicing law
• “Law has traditionally had an ambivalent attitude towards disabled people, restricting itself to being an arbiter of rules and policies about care and protection. The rule of law and its enactment in common law, constitutions focus on the rights of individuals as enforced by courts.”
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
• “Law is uneasy with bodies that ooze or are leaky, especially those that are fat, distressed, sick, dying, addicted and appear impermanent”
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
• "Law reflects a broader desire to drive down disability thus ensuring that this class of enumerated persons remains problematically in a state of exceptionality, defined by law rather than being a significant part of a country’s population. The state of exceptionality refuses to conceive of disability as a form of difference within the population. "
Examples of law "driving down" disability
• "The role of biomedicalism coupled with regulative aspects of the law can be found in many legal definitions of disability….. The legal enactment of purification zones attempts to settle the matter of disability by way of enumerative exactness and reduction of disability to a medical model”
We can see this in the Australian Institute of Health and Welfare definition:

A disability is defined as 'o
ne or more of 17 limitations
, restrictions or impairments which have lasted or are likely to last, for a period of six months or more, and which restrict a person's everyday activities'.



•"Biomedical fabrications of ontologies of disability as tragic are policed by law, that has the authorizing power to say what disability is and is not. By showing that a story achieves its meaning and persuasiveness by burying and discounting relevant facts and often by restricting and fixing the spatial scope of a narrative, dominant legal narratives fail to correspond with material reality"
Disability as a negative state in law
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
Disability as a negative state in law
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
• "The inscription of certain figurations of legal disability
requires that disabled people's 'experiences' be regulated within the
confines of juridical formations, ultimately foreclosing any alternative
perspectives. Interestingly, the delimitation and marking of certain bodies
as 'disabled' or 'injured' bears little resemblance to the views of
impaired people and is ostensibly 'imposed through policies of repression
and coercion' (Emecke, 2000, p. 494). Legal rendering of disability
through statutory definitions and case law can produce a dissonance
between those 'official' and private realities."

Disability as a negative state in law
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
"Recent studies have suggested the emergence of a paradox, wherein the application for disability benefits and compensation can generate feelings of despondency as the disabled person engages in a process of altered perceptions and puts on the 'clothes of a disabled identity' (Holloway, 1994;
Sayer et al., 2004). Throughout these processes, the disabled litigant is
required to 'identify' with the disabled person before even commencing
the process of articulating a breach of rights or securing protective
remedies. The litigant needs to draw on a wellspring of suffering and future damage."

Disability as a negative state in law
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
Disability as a negative state in law
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
The person is required to adopt a victim identity, which may not only be in conflict with her own sense of self but reinforces the very negative figuring of disablement (as weak, passive, suffering victims) that the ADA purports to challenge (Rovner, 2001, pp. 252-253). This negative clothing of disablement remains even after the litigation has ended and is difficult to shake off.
Disability as a negative state in law
Disability as tentative

Narrative of suffering

Mitigation of disability

Mitigation of disability and the law
• The trend in courts of narrowing the definition of disability by reframing disablement in terms of mitigation has already occurred in the US and is likely to have international implications…. The notion of mitigation will transform civic understandings of disablement as something that is provisional and tentative.
Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
Mitigation of disability and the law
Should a woman without arms be required to wear a prosthesis or
have a hand transplant in order to be considered 'disabled'?

Is a person who is legally blind without glasses disabled?



The concept of vulnerability and achieving equality through law
Problems with the current legal understanding of equality

How does the concept of vulnerability help us to understand how equality may be achieved

"An impoverished sense of equality is embedded in our current legal doctrine. We understand equality in terms that are formal, focused on discrimination, and inattentive to underlying societal inequities"

Martha A Fineman “The Vulnerable Subject: Anchoring Equality in the Human Condition” Yale Journal of Law and Feminism Vol 20 No. 1 2008
The general tendency under a sameness of treatment equality framework is to focus on individuals and individual actions. The task under this approach is to identify the victims and the perpetrators of discrimination, as well as to define what were the prohibited activities, the individual injury, and the specific intent involved in each occurrence. Unless they are tied to individuals and discrimination, systemic aspects of existing societal arrangements are left out of the picture
Martha A Fineman “The Vulnerable Subject: Anchoring Equality in the Human Condition” Yale Journal of Law and Feminism Vol 20 No. 1 2008
"Vulnerability ...is a powerful conceptual tool with the potential to define an obligation for the state to ensure a richer and more robust guarantee of equality"

"Vulnerability initially should be understood as arising from our embodiment, which carries with it the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise. Individuals can attempt to lessen the risk or mitigate the impact of such events, but they cannot eliminate their possibility"


Martha A Fineman “The Vulnerable Subject: Anchoring Equality in the Human Condition” Yale Journal of Law and Feminism Vol 20 No. 1 2008
The concept of vulnerability
State should play a greater role in addressing inequality

Asset-conferring institutions can enable individuals to move past disadvantages typically associated with ourexisting discrimination categories. The various systems and institutions these individuals encounter provide them with the accumulated assets they needed to succeed.


"The vulnerability paradigm calls on courts to look beyond the identity of the disadvantaged developed over the past few decades under a discrimination paradigm. While the old identity categories-gender, race, sexuality, and so on-should not be totally removed from consideration, we must reframe our concerns in order to reveal and address things about the organization of society that are otherwise missed"
Martha A Fineman “The Vulnerable Subject: Anchoring Equality in the Human Condition” Yale Journal of Law and Feminism Vol 20 No. 1 2008
The interaction between disability studies and law
Disability studies:
Is multidisciplinary
Refers to the examination of disability as a social, cultural and political phenomenon which counters the notion of disability as an inherent, immutable trait located in the person
Sees disability as the result of socio-cultural dynamics that occur in interactions between society and people with disabilities
Places the responsibility for reexamining and repositioning the place of disability within society not on the individual, but on society itself
Challenges normalcy in society
Sees people with disabilities not as patients or charitable cases but rather as human beings who exist as an important part of the social fabric
Defines “disabled” subjectively


Arlene S Kanter “The Law: What’s Disability Studies Got to Do With It or An Introduction to Disability Legal Studies” 42 Columbia Human Rights Law Review 403 (2010-2011)
What is disability studies?
Vulnerability and equality


Embodies values based on viewing the person with a disability not as a victim of pathology but as one who is limited more by social attitudes and environmental barriers than any inherent defect or deficiency within the person that must be remedied
Uses perspectives and experiences of people with disabilities as foundations for research and training
Considers disability as a natural part of the human condition, not a defect or impairment of the person that must be eliminated, treated or cured
Rejects the perception of disability as a functional impairment that limits a persons activities and instead encourages the re-imagination of the place of disability within society
Aims to fix systems to be accessible and usable by people with disabilities in contrast to the traditional paradigm that focuses on fixing the individual so that he or she can better fit into existing systems
Seeks to portray people with disabilities as individuals with dignity who are capable of contributing to society, albeit in their own different ways





Arlene S Kanter “The Law: What’s Disability Studies Got to Do With It or An Introduction to Disability Legal Studies” 42 Columbia Human Rights Law Review 403 (2010-2011)
What is disability studies?
Research is not limited to empirical research or statistics- empirical research may be criticized for using disability as a category for comparison that focuses on people with disabilities in their particularity, which does not empower people with disabilities and ignores their voice or viewpoint. However, empirical research may be useful where it challenges the meaning of disability, the identity of the individual charged with defining disability and the ways in which society creates and perpetuates the category of disability.
Views people with disabilities themselves as experts in addition to professionals
Challenges the view of disability as tragic or pitiable. People with disabilities do not necessarily see their lives as tragic.
Affirms the value of life with a disability. A person with a disability is not a victim of charity case, but a participant in the world, limited by the social, legal, environmental and attitudinal barriers created by the society in which they live.
Scope and breadth of research is expansive and interdisciplinary
Recasts disability as a set of relations that determines a persons place in society and reframes the study of disability by focusing on it as a social phenomenon, social construct, metaphor and culture. The fundamental issue then becomes not one of the individuals inabilities or limitations, but rather, a hostile and unadpative society.
Scholars agree that viewing disability solely through the medical model is no longer acceptable





What is disability studies?
Currently, dominant political and legal theories are built around a universal human subject defined in the liberal tradition. These theories presume the liberal subject is a competent social actor capable of playing multiple and concurrent societal roles: the employee, the employer, the spouse, the parent, the consumer, the manufacturer, the citizen, the taxpayer, and so on

•Vulnerability analysis questions the idea of a liberal subject, suggesting that the vulnerable subject is a more accurate and complete universal figure to place at the heart of social policy.



Martha A Fineman “The Vulnerable Subject: Anchoring Equality in the Human Condition” Yale Journal of Law and Feminism Vol 20 No. 1 2008
The concept of vulnerability
What is disability studies
How does disability studies teach us about law
How does the law inform disability studies


"Disability Studies help us to see disability as part of the human experience and to understand how the law, and society, in general, views difference as a deviation from an "unstated norm."

"Since law itself is in the business of deciding how to recognize, legitimate, and allocate differences-different rights, responsibilities, resources, and even justice within society-Disability Studies offers an appropriate lens through which we can view the legal profession, and the meaning of difference within the legal system, and society."

By infusing a Disability Studies perspective into the law, we may shed light on complex lessons about our culture, society, minority rights, power, authority, and the role of law in changing society just as issues of race, ethnicity, gender, and sexual identity have recently informed our understanding of society and power





Arlene S Kanter “The Law: What’s Disability Studies Got to Do With It or An Introduction to Disability Legal Studies” 42 Columbia Human Rights Law Review 403 (2010-2011)
The interaction between disability studies and law
representations of disability- victim identity
Relevance of disability to studying and practicing law
Curb Your Enthusiasm- "Handicapped" Toilet
"Retard"
Language used to describe disability
"Gimp"
"Lunatic"
"Person with intellectual disability"
"Dumb luck"
"Lame idea"
"Falling on deaf ears"
"good for a person who is blind/deaf/has no legs"
"attractive"
"smart"
"so normal"
Medical/Individual model
Minority Group Model
Social Model
Cultural Model
Relevance of models of disability
The 20 point impairment requirement for the disability support
pension


http://www.comlaw.gov.au/Details/F2011L02716
• "The necessity to embrace the narrative of suffering signifies disability as a negative state. The burden of negative formulations of disablement means that the disabled litigant would have difficulty if she wished to present an affirmative approach to living with an impairment coloured, by a mixture of joy and despair. Such a representation is diametrically opposed to dominant cultural narratives of disablement as catastrophe and therefore as Rovner (2001, p. 277) observed 'law's constraints make it impossible for [those] stories ... to be heard and recognized'."

Fiona Kumari Campbell “Tentative Disability Mitigation and Its Discontents” in Contours of Ableism: The Production of Disability and Abledness (2009) Palgrave, Macmillan
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