Disabled Justice?

Access to Justice and the UN Convention on the Rights of Persons with Disabilities

Eilionóir Flynn

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317150039
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del lavoro e dell'impiego

Disability offers a new lens through which to view the effectiveness of access to justice, and the inclusiveness of the justice system as a whole. This book analyses the experience of people with disabilities through the entire justice system, from making a complaint, to investigation, and through the court/tribunal process. It also considers the participation of people with disabilities in a variety of roles in the justice system - as witness, defendant, complainant, plaintiff, lawyer, judge and juror. More broadly, it also critically examines the subtle barriers of access to justice which might exist in a given society - including barriers to grassroots disability advocacy, legal education and training, the right to vote and the right to stand for election which may apply to people with disabilities. The book is international and comparative in scope with a focus primarily on examples of legal practice and justice systems in common law countries. The work will be of interest to scholars working in the areas of human rights, equality and non-discrimination, disability rights activists and legal professionals who work with people with disabilities to achieve access to justice.

Chapter 1
Access to Justice and its Relevance for People with Disabilities

1. Introduction

Much scholarship has focused on the notion of ‘justice’ for people with disabilities – from legal, philosophical and sociological perspectives. However, although there is much academic dispute on what ‘justice’ requires in the context of disability (including scholars who adhere to social contract theories such as Rawls’ Theory of Justice¹ or Sen and Nussbaum’s capabilities approach²), this chapter will move beyond political theories of justice to explore whether there is any consensus on what ‘access to justice’ means for people with disabilities. In so doing, I will first consider the uniqueness of people with disabilities as a group with many different identities and experiences, and what the search for justice might mean in this specific context. Drawing on existing scholarship in the field of ‘access to justice’³ I will then consider how ‘access to justice’ might be interpreted with regard to people with disabilities, and how this might address some of the barriers to accessing justice which people with disabilities experience.

In order to fully understand the various barriers experienced by people with disabilities in accessing justice (undertaken in more detail in Chapters 3–6) this chapter will set an intersectional frame for analysis. Drawing on Fraser’s understanding of justice as recognition and redistribution, together with Crenshaw’s theory of intersectionality,⁴ I will put forward a proposed framework for examining the inclusiveness of the justice system as a whole. While the experiences of people with disabilities will be the primary standpoint from which access to justice is explored, I acknowledge that people with disabilities are not a homogeneous group – and that individuals with disabilities have many different languages, cultures, ethnicities, ages and genders, and seek to reflect this multi-faceted experience in my critiques of the justice system and proposals for reform.

Finally, I consider the work of Bahdi – who defines access to justice as comprising substantive, procedural and symbolic components – with reference to the lived experience of people with disabilities. Based on an argument developed with Lawson in a previous article, I suggest that ‘participatory’ justice must be added to Bahdi’s conceptualisation to achieve effective access to justice for people with disabilities, and consider how Bahdi’s work interacts with that of Fraser and Crenshaw to provide a framework for intersectional analysis of people with disabilities’ experiences in accessing justice before deliberating on how these theories are reflected in the human rights framework addressed in Chapter 2.

2. People with Disabilities and the Search for Justice

In philosophical scholarship on disability, justice has been one of the most prominent topics of discussion. In part, this may be because disability poses such interesting challenges to social contractarian ideas of justice, which rely primarily on deliberative processes, mutual agreement and reciprocity as the basis for determining what justice owes to individuals, and how social and political institutions should operate. Similarly, as an ‘identity’ for which equal recognition is sought, disability is a complex one – with contested definitions, models and approaches to determining who exactly ‘people with disabilities’ are – in order to ensure that principles of justice can be applied to them.

Although discourse on the definition or models of disability is often presented as quite polarised, for the purpose of this book I will use an adapted version of the social model of disability, as conceptualised by Oliver,⁵ and broadly reflected in human rights law, particularly in the UN Convention on the Rights of Persons with Disabilities (CRPD), which claims that the disadvantages experienced by people with disabilities are the product of social and environmental factors, which in interaction with the individual’s impairment, present barriers to full participation and inclusion.⁶

This approach represents a shift away from the medical or individualist conception of ‘disability’, which labelled people according to their impairment and viewed all the problems experienced by people with disabilities as a direct result of their impairment, rather than problems arising from a society which was structured according to the needs of the majority, who did not experience disability. Within the social model of disability, ‘disability’ is viewed as separate from ‘impairment’. ‘Impairment’ is the term used to describe the medical condition or functional limitation affecting a particular individual, whereas ‘disability’ is the term given to the societal barriers experienced by people with physical or mental impairments. Although many people suffer societal disadvantage due to gender, race, sexuality or poverty, the term ‘disability’ applies solely to the type of disadvantage suffered specifically by people with impairments.

Of course, this is not to state that disabled people cannot suffer multiple types of societal disadvantage due to other factors such as those outlined above; it is merely to clarify that a particular type of societal disadvantage affects individuals who have impairments and to recognise that specific redress for this disadvantage must be sought through reform of law and policy.

The approach to disability represented by the social model is one which fits well with thinking about justice and the intersection of disability with other identities, as the social model understands disability in relation to societal, political and environmental factors, just as a broad conception of ‘justice’ must acknowledge this multiplicity of factors in order to ensure equal treatment. While Oliver and other proponents of the social model, particularly in British disability studies, favour the term ‘disabled people’, the terminology used by the UN Convention on the Rights of Persons with Disabilities is ‘persons with disabilities’. Since I view the human rights model of disability contained within the Convention as one which is inspired by, and draws upon, the social model of disability, I use the terms ‘disabled people’ and ‘people with disabilities’ interchangeably throughout this book to describe the broad disability community.

As stated at the outset of this chapter, I do not propose to provide a comprehensive analysis of all theories of justice as applied to disability – but before considering what analytical framework should be applied to access to justice questions, it is important to briefly consider the purpose of seeking justice for people with disabilities. Anita Silvers addresses this core question, by asking us to consider ‘whether justice requires only that the presence of people with disabilities be recognized, or whether, in a just society, they must be equalized as well’.⁷ She perceives the dilemma of difference posed by people with disabilities as a question of equality, stating that ‘[f]irst, we must decide whether the disadvantages characteristically associated with those differences we identify as physical, sensory or cognitive impairments are artificial or natural. Second, we must come to terms with whether we are morally or politically obligated to mitigate the specific kind(s) of disadvantage occasioned by those sorts of differences – that is, whether we are required to equalize people because of their disabilities’.⁸ In her view, the disadvantages caused to people with disabilities by artificial means – i.e. stigma, discrimination, lack of opportunity to participate in society, are the only kinds that we, as a society, are morally and politically obligated to remedy – as she claims that distributive justice, particularly in the form of income or resource transfers via the welfare state, have in general, been counter-productive in terms of the claims to equality made by people with disabilities.

The question of what ‘justice’ requires for people with disabilities has been addressed by a wide range of scholars including Silvers and others – some from the perspective of social contractarian accounts such as Rawls’ Justice as Fairness, and others in the context of Sen and Nussbaum’s capabilities approach. However, in the specific context of disability, justice is often defined in relation to its opposite – as injustice seems somehow easier to recognise. Since the focus of this book is on access to justice (although broadly defined), it is not feasible or desirable to comprehensively address all the different accounts of justice, and their relevance or application to people with disabilities. Conversely, it seems inappropriate to consider how access to justice might be achieved for people with disabilities without some regard to what ‘justice’ means in this context. Therefore, I propose to base my approach to access to justice, defined further below, on a combined approach to Fraser’s approach to justice as constituting mutual claims for recognition and redistribution, and Crenshaw’s understanding of the intersectional nature of discrimination and disadvantage.

(In)Justice, Discrimination and Intersectionality

Fraser’s conception of justice⁹ as responding to the desires for recognition and redistribution is particularly relevant here – as disability has been used to critique the way in which existing theories of distributive justice operate (focusing on individual impairment without regard to social and environmental barriers). Although her seminal work on recognition and redistribution was written without reference to disability, I propose to use her frame of reference as a starting point to explore forms of injustice as experienced by people with disabilities. Her approach is particularly relevant for this task, as she acknowledges the intertwined nature of unfair economic distribution with cultural practices that fail to recognise certain groups or individuals as worthy of equal treatment – and yet, by considering cultural and economic injustices as separate, she proposes a framework for addressing both forms of injustice in a holistic and comprehensive manner.

Interestingly, she also does not require the adoption of any particular existing theory of justice as a starting point (an approach which is useful in the context of disability, considering that there are so many competing accounts, and critiques, of the application of such theories to persons with disabilities).¹⁰ Rather, she considers that any of the accounts of distributive and egalitarian justice, along with the work of critical political theorists on cultural injustice, share a common concern for both recognition and redistribution. Since her work is primarily written from the standpoint of gender and race as identities for which individuals seek recognition and redistribution, it is also particularly suited to an intersectional approach to justice, which I propose to use throughout this book.

Crenshaw also acknowledges that self-identification as a member of a minority group can be viewed both as ‘a source of strength, community, and intellectual development’ and as a source of tension with concepts of social justice which seek to empty identities such as race, gender or sexual orientation of any social significance.¹¹ Her main claim is that the shortcomings of identity politics lie in assumptions that identity categories such as gender or race represent a finite, concrete, homogeneous set of experiences, which do not account for the difference of experiences that can occur within these groups, or where individuals claim multiple, and intersecting, identities.

This risk in disability studies discourse was also identified by Morris, who contends that the experiences of women with disabilities were often omitted from both feminist writing and disability studies scholarship.¹² It is clear that people with disabilities, as expressed above, do not constitute a homogeneous group, and differences in impairment type, as well as experiences of other identities (including gender, class and race, for example) impact on individual experience, for example, in the context of the justice system, which is the focus of this work. It is clear that this intersection of experiences must be acknowledged in any critique of the justice system and proposals for reform. However, it is beyond the scope of this work to address all possible ramifications of the various identity combinations which people with disabilities may experience in terms of securing effective access to justice. Therefore, the approach taken in Chapters 3–6 will be to draw on the experiences of other groups which may be relevant in the context of disability, in providing proposals for reform.

Fraser builds on Crenshaw’s analysis of identity politics, with the aim of creating ‘a critical theory of recognition, one which identifies and defends only those versions of the cultural politics of difference that can be coherently combined with the social politics of equality’.¹³ Her work focuses on the identities of gender and race, as she views these as categories for which individuals seek both cultural recognition and social equality. Although Fraser recognises the intertwined dimensions of socio-economic and cultural injustices, her analysis proceeds by separating these two concepts and proposing distinct remedies for socio-economic injustice, on the one hand (mainly involving political economic reforms for redistribution) and cultural injustice on the other. Her proposed remedies for cultural injustices are perhaps most relevant in the context of access to justice for people with disabilities, as she suggests that remedies for this type of injustice can range from respect for the value of cultural diversity to ‘the wholesale transformation of societal patterns of representation, interpretation and communication in ways that would change everybody’s sense of self’.¹⁴

Fraser poses the ‘recognition-redistribution dilemma’ in which she argues that one set of claims can undermine the other – since recognition claims are generally based on acknow...