Law And Disability Research Paper

1. The Scope And Function Of Law

Laws targeting people with disabilities include antidiscrimination law, laws relating to competence, laws relating to the provision of services, guardianship law, and the regulation of mental health. They also include laws of general application which are relevant to people with disabilities such as family law, criminal law, social security law, and international human rights law. In each case the law may play a role in the lives of people with disabilities by defining disability, by excluding people with disabilities, by regulating activities relating to disability, or by providing remedies for wrongs suffered by people with disabilities. Law also has the potential to promote an inclusive society by articulating the rights of people with disabilities and by constructing a legal framework for the achievement of substantive equality (Jones and Marks 1999).

2. Approaching Disability

The inconsistency in the values contained in law is a reflection of the different views held about disability at any given point in time, as well as over time. For many years the dominant approach to disability centered around what has become known as the ‘medical model’ of disability. More recently the social model has come to the fore, with minority rights and identity politics being adopted as strategies for change. A human rights model related, but not identical, to the universal approach to disability is beginning to emerge as an alternative mechanism for improving the position of people with disabilities. These models coexist and each model has different implications for the relationship between law and disability.

The ‘medical model’ of disability invokes a ‘common-sense’ definition of disability (Bickenbach 1993; Shakespeare 1999). Disability is conflated with impairment and incapacity and is seen as an individual deficit. Disability is therefore viewed as a personal tragedy and people with disabilities are to be regarded with pity and concern. Medicine, rehabilitation, and social welfare are mobilized to overcome or alleviate the consequences of impairment and to provide a basis for identifying those in need of support. Adopting a negative view of disability and of people with disabilities legitimizes strategies such as recommending abortion of disabled fetuses, relegating people with disabilities to institutions, sterilizing them for eugenic purposes, or denying them citizenship rights.

The 1980 World Health Organization International Classification of Impairment, Disability, and Handicap (ICIDH) exemplifies the medical approach to disability. Although it attempts to separate the person from the biomedical condition by defining impairment as ‘any loss or abnormality of psychological, physiological, or anatomical structure or function,’ disability as ‘any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being,’ and handicap as ‘a disadvantage for a given individual, resulting from impairment or a disability, that limits the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual,’ it nonetheless fails to locate any aspect of disability in the social and political environment. It is recognition of the limitations of the medical approach that has led to the current revision of the classification schema.

The challenge to the medical model has come from those claiming that reducing the person to their ‘abnormality’ has the effect of legitimizing the exclusion of people with disabilities from the benefits of society. The social model of disability (Oliver 1990) assumes that disability is not internal to the individual, but is the external response of society to bodily or behavioral difference. As such, disability is considered to be socially produced and what is disabling is not so much the impairment as the complex array of conditions, activities, and relationships created by the social and political environment. Disempowerment and exclusion of people with disabilities are therefore viewed as the direct result of the exercise of power, through political and cultural practices, which bears little relationship to the reality of physical or intellectual difference (Barnes 1998, cf. Shakespeare 1999). The politics of disablement locates the source of the disadvantage in the failure of the social environment to accommodate difference rather than in the failure of the body (Thompson 1997).

While the medical model of disability focuses solely on the impaired body and ignores the barriers to participation arising from legal, social, economic, and political forces, the social model suggests that it is these forces alone which are responsible for the disadvantage arising from disability. This has led to a call for theorists to rethink the social model so as to ‘include all of our lives’ (Crow 1996, Wendell 1996). While the social model discloses the barriers to full participation, it offers no insight into the means of resistance to exclusion, nor strategies for change. The minority rights approach to disability (Zola 1994), on the other hand, provides a framework for social action.

Drawing on the experience of the civil rights movement, disability activists have invoked identity politics in order to encourage people with disabilities to see themselves as members of a minority social group (Hahn 1987). His civil rights strategy encourages people with disabilities to work together to challenge their common experience of oppression and recommends legal strategies similar to those used in other civil rights movements. Antidiscrimination laws are seen as an appropriate response to discrimination experienced, while the role of education in achieving equality is not ignored. However, the minority rights model is problematic because it attempts to equate all disabilities impairments with each other. Yet the experience of those, for example, with visual impairments is not the same as the experience of a person with mental illness or an intellectual disability. Further, the historical treatment of different disability types has been inconsistent. Hence, the analogy between people with disabilities and women or racial minorities does not hold (Rioux 1994). Moreover the minority rights model ignores the reality of multiple identities and suggests that people need to focus on their difference in order to achieve equality and the difference to be demonstrated is ‘abnormality’ (Corker 1999).

The human rights model starts from the point of view of the universal entitlement of all people to rights, equality, and justice (Rioux 2000). People with dis- abilities, like all other people, are entitled to have their rights recognized and to be treated with dignity and respect. An inclusive theory of human rights takes the celebration of diversity and difference to be fundamental and equality to relate to both the process itself and the outcome of that process. An inclusive human rights model does not accept formal equality as an appropriate standard, nor does it accept that equalization of opportunity will result in inclusion. People with disabilities can only have their human rights respected when society makes accommodations for difference, not just when asked to do so, but at every step along the way. This model does not elevate people with disabilities to a special status nor require that the primary identity of the person be that of a person with a disability. Rather, the human rights model proposes a fluidity of treatment and a flexibility in policy and practice. The needs of all people are to be equally acknowledged and respected such that accommodations will be made independent of status of the person.

3. Legal Responses To Disability

There is more than one perspective of the relationship between law and disability. One view is that law has the potential to empower people with disabilities by fostering an inclusive society. This is the objective for law sought by people with disabilities who see law as an important strategy for achieving justice and equality. Another perspective focuses on the way in which law is implicated in the construction of values around disability. Law is a significant institution of state power and has a hegemonic force. The reflection of values in law has a legitimating effect over and beyond the particularities of the legal issue in question (Jones and Marks 1999).

Two examples of the importance of interrogating law’s relationship with disability will suffice. First, while the medical model is considered to be disempowering by social theorists, it is the model most frequently adopted in law. Where the law provides goods and services to people with disabilities, including pensions and other financial support, it will usually be contingent upon classifying the person with a disability. In this way, the law has a gate-keeping function and is designed to ensure that only specified individuals benefit. The process adopted by law will often be disempowering to the individual concerned, as he or she will be required over and again to prove ‘abnormality’ and to focus negatively upon his her difference before any support will be forthcoming. In many circumstances medical practitioners will be called as experts to provide evidence about the disability.

The second example of the role of law in constructing disability relates to the many ways in which law imports ideas of competency in order to include or exclude individuals. Rules of competency come into play in matters as diverse as voting rights, access to justice, rules of evidence, medical treatment, criminal responsibility, rules relating to sexuality, the age of consent, and the care and custody of children. A true understanding of the relationship between law and disability requires a thorough analysis of the operation of law in these areas. Further, attitudes toward people with disabilities and the role of the law in determining values in relation to disability can be seen through an assessment of competency in areas such as mental health law and the rules relating to guardianship of people with disabilities.

These two examples are indicative of the analysis that needs to be undertaken if we are better to understand the relationship between law and disability. It would be possible to do the same sort of analysis focusing on the way in which people with disabilities are differentiated from those without disabilities, such as with respect to education, or areas of law where people with disabilities are simply left out of the equation. Further, the differential impact of supposedly neutral rules on people with disabilities is largely hidden. Evidence of the way in which law values or devalues people with disabilities can also be found in an analysis of any law which, consciously or unconsciously, excludes a disability perspective.

There are two basic strategies invoked by those who believe that law has the potential to achieve equality for people with disabilities. The first of these is the antidiscrimination model, which is tied closely to the civil rights minority rights perspective on disability. The alternate approach can be found in international law. This latter approach has the potential to be interpreted in line with the human rights model.

4. Antidiscrimination Law

Antidiscrimination law is designed to redress historic social and economic disadvantage of certain groups in the society. It has been used as a strategy to achieve equality with respect to race and gender, and more and more jurisdictions are adopting antidiscrimination law with respect to disability. Antidiscrimination law is an individual complaints based law, where action to challenge the discrimination may be brought in a court of law or, in many jurisdictions, to an administrative body which may have the power to use alternative dispute resolution techniques of arbitration conciliation and mediation. The assumption of antidiscrimination law is that it is possible to level the playing field by outlawing discriminatory practices. The focus is on equalization of opportunity in the hope that, once historic disadvantage has been remedied, the status of the individual will cease to be relevant in the application of law.

Each piece of antidiscrimination legislation outlaws certain types of discrimination, but in no case is all discrimination considered unlawful. The legislation is always limited to a specified target group, in the case of disability law to those defined by the legislation to be ‘people with disabilities.’ Antidiscrimination laws involve the action of an individual complainant (and in the case of some laws, groups of complainants) who brings an action against a specified alleged discriminator. The sorts of discrimination covered by legislation include both direct and indirect discrimination, as well as harassment. Direct discrimination involves a situation where a complainant is discriminated against because of his or her disability and can be understood in terms of a ‘but for’ test. Direct discrimination, then, occurs in circumstances where, if not for the status of disability, the person would have been treated differently. The concept of indirect discrimination, sometimes referred to as ‘disparate impact,’ involves discrimination where an apparently neutral law has a differential impact on people with disabilities. Indirect discrimination, then, is an attempt to respond to systemic discrimination which poses barriers to full inclusion. The prohibition of harassment is an important addition to direct and indirect discrimination, for the actions of an harasser may not constitute discrimination per se but may create an environment in which a person with a disability is unable to function. Some legislation also includes provision for affirmative action.

While a number of jurisdictions have introduced antidiscrimination law, the contrast between the United States and Australian legislation is perhaps the most telling (Quinn et al. 1993). The Americans with Disabilities Act (ADA) is based on the minority rights approach to disability and is designed to respond to the needs of a class of qualified individuals. In most cases under the ADA, court decisions revolve around the question of whether or not the applicant fits within the class of people with disabilities protected by the legislation. As a result, there is little jurisprudence on the question of what constitutes discrimination and when discrimination is unlawful. The Australian Disability Discrimination Act (DDA) approaches the question of disability discrimination from an entirely different standpoint. More in line with the human rights approach than the minority rights model, the Australian legislation defines disability so broadly that almost any member of the community could qualify as a person with a disability. This has allowed the courts to focus on the action of the alleged discriminator and to consider whether or not the discriminatory conduct is unlawful. As a result of the broad definition of disability in the DDA, there is no need to focus on the

‘abnormality’ of the applicant, or to prove that he or she falls within a particular classification. What is important is the action of the alleged discriminator (Jones and Marks in press).

Whatever form the antidiscrimination law takes, this approach to empowering people with disabilities is limited. First of all, antidiscrimination law perpetuates the status quo and assumes that the primary form of disadvantage confronting people with disabilities is discrimination. However, antidiscrimination law can neither deal with systemic issues nor bring about the fundamental change in values and attitudes which is required for a truly equal society. This is the case even where affirmative action is encouraged through the use of, for example, taxation law. Further, the technical requirements of antidiscrimination law limit its ability and potential success (Redman and O’Connell 2000). Antidiscrimination law depends upon there being an individual complainant and a named alleged discriminator. As such, many instances of discrimination are unable to be challenged by antidiscrimination law. The limitations of antidiscrimination law are well known and the issues for people with disabilities are the same as those experienced by other disadvantaged groups.

5. Human Rights Law

Human rights law provides an alternative legal approach for achieving equality for people with disabilities. The rights-based approach is found in international law and sometimes is incorporated into constitutions or statutes. For example, the Canadian Constitution specifically guarantees the equality rights of people with disabilities. Section 15 of the Constitution Act 1982 provides

(1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and in particular without discrimination based on … physical or mental disabilities

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of … or physical disability.

This guarantee applies to all Canadian law, at all levels, and covers both substantive and procedural rights and provides for affirmative action. The Canadian Supreme Court has recognized that section 15 provides protection against discriminatory impact as well as intent. In Andrews vs. Law Society of British Columbia 1989 154, the Supreme Court takes a contextual, effects-based approach which recognizes disadvantage as central to the analysis of discrimination. In addition, in Canada there is a federal Human Rights Act as well as provincial and territorial Human Rights Codes, which provide protection from discrimination, harassment, and reprisal, and extend into all realms of public and private activity (Rioux and Frazee 1999). The advantage of adopting a human rights approach is that any disadvantage, whether or not it takes the form of discrimination, can be addressed.

The international community has developed a number of international human rights instruments which have relevance for people with disabilities. People with disabilities can make claims under the International Bill of Rights—the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and the Convention on Economic, Social and Cultural Rights. Equally, people with disabilities may take advantage of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination against Women, the Refugee Convention, and the Convention on the Rights of the Child (Degener and Koster-Dreese 1995). While each of these international law instruments is said to have universal application, none but the last convention makes any specific reference to its applicability to people with disabilities. However, each of the treaties contains a nondiscrimination provision which requires the human rights instruments to be applied independent of the ‘status’ of the individual concerned and there is jurisprudence to the effect that ‘disability’ is included within the category ‘other status’ (e.g., Vienna Declaration and Programme of Action, para 63 (A/CONF.157/24, 25 June 1993)).

International covenants have greater legal force than other instruments of international law. Instruments such as General Assembly resolutions, declarations, and statements of human rights bodies are nonetheless important both for their support for people with disabilities and for their value in the interpretation of the treaties themselves. There are a range of ‘soft’ international instruments including the Declaration on the Rights of Disabled Persons, Declaration on the Rights of Mentally Retarded Persons, and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. The last mentioned resolution of the United Nations General Assembly is by far the most significant and far reaching international instrument regarding the rights of people with disabilities. The Standard Rules adopt a social constructionist perspective of disability and call upon governments to provide for the equalization of opportunity for people with disabilities in all aspects of their lives. However, the Standard Rules do not fully incorporate a rights perspective as they are not directed at resolving systemic disadvantage.

There is no specific convention or treaty dealing with the rights of people with disabilities. There is some dispute about whether a convention on the rights of people with disabilities is strategically appropriate, for it is argued that by separating people with disabilities from the mainstream one falls into the trap of differentiating between people when the primary objective of a rights perspective is to include outsiders, rather than to treat their needs as distinct from the needs of all other members of the community. However, in the absence of a convention on the rights of people with disabilities, it has been extremely difficult to ensure that these rights are included on the general human rights agenda and to develop mechanisms to ensure a disability perspective is maintained with respect to the operation of rights in practice. A disability convention would not guarantee, in itself, the implementation of rights for people with disabilities. Such a convention would, however, offer a starting point for those seeking equality for all members of the community.

6. Conclusion

On one level, international law could be considered to be only as valuable as its enforcement mechanisms and the implementation measures of ratifying States. This could equally be the case with respect to domestic law. Even where enforcement and implementation measures are less than ideal, it could be argued that the very existence of law sets standards for the treatment and inclusion of people with disabilities in the community. Aspirational instruments have the strategic possibility of empowering people with disabilities. They can be used as leverage in negotiation, both with governments and with service providers, and can be held up as a blueprint for acceptable behavior. International law, on its own, cannot bring about equality for people with disabilities. Equally, the possibilities of domestic law are limited, but adopting a human rights approach creates the greatest opportunity for moving towards an inclusive society. While law has a part to play in providing rights for people with disabilities, it must not be forgotten that law also may be implicated in the creation of disadvantage. An appreciation of the relationship between law and disability therefore is essential before confidence can be placed in any legal strategy and before law should be invoked as a solution for the problems associated with disability.

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