Routledge Handbook of Disability Law and Human Rights

Peter Blanck, Eilionóir Flynn, Peter Blanck, Eilionóir Flynn

• Publisher: Taylor & Francis
• Year: 2016
• eBook ISBN: 9781317043683
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

This handbook provides a comprehensive and authoritative state-of-the-art review of the current and emerging research and policy on disability law.

Bringing together a team of respected and experienced experts, the handbook offers a range of jurisdictional and multidisciplinary perspectives. The authors consider historical and contemporary, as well as comparative perspectives of disability law. Divided into three parts, the contributors provide a comprehensive reference to the theoretical underpinnings, ongoing debates and emerging fields within the subject. The study provides a strong basis for consideration of contemporary disability law, its research foundations, and progressive developments in the area. The book incorporates interdisciplinary and comparative country perspectives to capture the breadth of current discourse on disability law.

This handbook provides a valuable resource for a wide range of scholars, public and private researchers, NGOs, and practitioners working in the area of disability law, and across national and transnational disability schemes. The work will be of important interest to those in the fields of sociology, history, psychology, economics, political science, rehabilitation sciences, medicine, technology, and law, among others.

Part I
Theoretical underpinnings of disability law

1
The Social Model of Disability

Questions for law and legal scholarship?

Anna Lawson and Mark Priestley

Introduction

The powerful influence of the social model of disability over international and regional law and policy has, in recent years, often been recognised. At the international level for instance, the committee which monitors the implementation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has observed that the treaty ‘establishes’ the social model approach to disability. ¹ It has also been described as the ‘knowledge base which has informed’ ² the CRPD and an idea which has exercised an ‘enormous influence in the development of the CRPD’. ³ At a regional level, for well over a decade the European Commission has explicitly pledged commitment to the social model of disability as a key driver of EU disability-related law and policy initiatives. Thus, in its 2003 Disability Action Plan, the Commission stated that:

The EU… sees disability as a social construct. The EU social model of disability stresses the environmental barriers in society which prevent the full participation of people with disabilities in society. ⁴

Claims such as these suggest that social model thinking can play a powerful role in stimulating legal reform. This chapter aims to introduce the idea of the social model and to identify the key questions it poses for law and legal scholarship. It will be divided into two main sections. In the first, we will introduce the social model, outlining its history and some of the key debates which have surrounded it. In the second, we will focus on the key questions which the social model poses for law and legal scholarship – a subject which to date has received surprisingly little attention. ⁵

The social model of disability

Emergence of the model

The term ‘social model of disability’, which has been described as the ‘big idea’ of the UK disabled people’s movement, ⁶ dates back to the writing of Mike Oliver in the early 1980s. ⁷ For these purposes, Oliver drew directly on the distinction between ‘impairment’ and ‘disability’, made in 1976 by the Union of Physically Impaired Against Segregation (UPIAS). According to this:

In our view, it is society which disables physically impaired people. Disability is something imposed on top of our impairments, by the way we are unnecessarily isolated and excluded from full participation in society. ⁸

This distinction, which lies at the heart of this social model, ⁹ was also adopted by other disabled peoples organisations, including at the international level. Thus, in 1982, Disabled People’s International (DPI) defined ‘impairment’ as ‘the functional limitation within the individual caused by physical, mental or sensory impairment’ and ‘disability’ as the ‘loss or limitation of opportunities to take part in the normal life of the community due to physical and social barriers’. ¹⁰

In the academic setting, the implications of this distinction and the social model of disability which rests upon it were then explored in a body of work (by Oliver and others) ¹¹ which laid the foundations of the interdisciplinary field of disability studies. Alongside the idea of the social model of disability, a theory of disability as oppression was developed, which sought to explain ‘disability’ in terms of structural causes. Considerable emphasis was thus given to understanding the processes of disablement to which people with impairments are subject – particularly through the operation of disabling barriers and the operation of the material relationships of power associated with capitalism that have historically operated to exclude many people with impairments from paid work.

It is ‘disability’ in the sense conveyed by the quotations from UPIAS and DPI, set out above, that forms the basis of the social model of disability. Thus, it does not include the functional limitations which are inherent to a particular biological trait or ‘impairment’. Disability is not caused by impairment, nor constructed by society – it is created by society. It is the exclusion and disadvantage that result from social structures and systems. In Oliver’s own words:

In the broadest sense, the social model of disability is about nothing more complicated than a clear focus on the economic, environmental and cultural barriers encountered by people who are viewed by others as having some form of impairment – whether physical, mental or intellectual. The barriers disabled people encounter include inaccessible education systems, working environments, inadequate disability benefits, discriminatory health and social support services, inaccessible transport, houses and public buildings and amenities, and the devaluing of disabled people through negative images in the media – films and television, and newspapers. ¹²

The UPIAS/Oliver origination of the social model in Britain is not the only socially oriented approach to disability that has influenced the development and reform of law and public policy. Indeed, the term ‘social model’ has become used rather widely in recent years. As Rannveig Traustadóttir has noted, it is now often used to refer to a range of social-contextual approaches which all recognise that ‘disability’ is, at least to some extent, a socio-political construct. ¹³ Amongst these are, for example, the kinds of ‘normalisation’ approaches prominent in Scandinavian writing; the ‘minority rights’ approach strongly associated with US disability politics; as well as the social interpretation of disability that provided the basis for its origin in the British ‘social model’. Although these approaches differ considerably in some respects, common to all of them is the view that people who are perceived to have some form of physical, sensory, psychosocial, cognitive or other ‘impairment’ are subjected to unnecessary disadvantage and marginalisation by social factors external to themselves. ‘Disability’, viewed through the lens of the social model, is produced by social structures and processes and is not an inevitable result of individual difference or biology. Moreover, oppressive social relations can be challenged and disabling barriers removed.

The political power of the social model

Oliver contrasts the social model of disability with ‘individual model’ approaches to disability. These locate the causes of social inequality and disadvantage in the body or mind of individuals with impairments. From an individual model perspective impairments are likely to be regarded as intrinsic ‘abnormalities’ or ‘deficits’ which prevent an individual from performing everyday tasks, which in turn prevents them from fulfilling valued social roles in society. In the traditional view then, ‘disability’ may be seen as an inevitable consequence of embodied difference and consequently associated with personal tragedy. The natural challenge for law and public policy in this model tends towards ensuring provision for responsible care or cure. The political power of the social model of disability lies in its reorientation to the challenge of disability – turning the focus away from the limitations arising from individual biology and toward the limitations created by social structures, processes and attitudes.

By locating the source of the disadvantages experienced by disabled people in their bodies or minds, individual approaches look for responses to these inequalities which focus only on changing or treating the individual. The responsibility and authority for such treatment rests primarily with medicine and its allied professions, including biomedical research and physical therapy. Locating the source of the disadvantage in social structures and systems, by contrast, calls for responses which entail changing society. Social problems call for social and not biomedical solutions. Thus, by focusing on disadvantage that is socially created, it directs attention to avoidable disadvantage and lays the foundation for the carving out of a series of identifiable barriers which are ripe for social change. The evident basis this provides for political action is strengthened by the fact that a focus on the disadvantage created by social, economic and environmental factors has the potential to emphasise connections between people with different types of ‘impairment’ or biological difference and thus provides a basis for commonality and combined political action.

The political and strategic potential of the UPIAS impairment-disability distinction that inspired the social model developed by Oliver has recently been thought-provokingly explored as an ‘oppositional device’ by Beckett and Campbell. ¹⁴ Their analysis helps to shed light on why this model became the ‘big idea’ of the UK disabled people’s movement and provided such a powerful basis for resistance practices and strategies. The political potency of the social model is perhaps to be expected, given that the idea was itself rooted in the activism of the 1970s, which focused on campaigns for independent living and for an end to the exclusion of disabled people from mainstream society and an end to systems in which medical and allied professionals assumed undue control over various aspects of the lives of disabled people, including issues unconnected with healthcare (such as education or employment). ¹⁵

The social model and its terminology

This UPIAS/Oliver version of the social model of disability, unlike some other social-contextual approaches, distinguished quite categorically between notions of ‘impairment’ and ‘disability’ and was inspired explicitly by the foundational definitions offered by UPIAS in the 1970s. Acceptance of this social model understanding of disability has implications for the terminology we use. The logical consequence is that the term ‘disability’ should be reserved for the collective disadvantage caused to people with impairments by externally imposed social barriers. Many of those who adopt a social model approach (particularly in the UK) therefore favour the language of ‘people with impairments’ and ‘disabled people’. This is because in social model terms, while it makes sense to speak of people becoming ‘disabled’ by social barriers, it is illogical to refer to people as having ‘disabilities’. The term ‘people with disabilities’, however, is favoured by many disability campaigners outside the United Kingdom (including those influential in the drafting of international human rights instruments) because it positions ‘people’ before disability or impairment. ¹⁶ In this chapter we adopt the former terminology to emphasise the significance of the original social model framing.

Impairment-based critique of the social model

The social model, based on the impairment-disability distinction, has long been the subject of lively academic debate. A significant amount of this has focused ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• Notes on contributors
• Acknowledgements
• Introduction
• PART I Theoretical underpinnings of disability law
• PART II Ongoing debates in disability law Introduction
• PART III Emerging fields in disability law Introduction
• Index