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Dworkin on Disablement and Resources

Published online by Cambridge University Press:  09 June 2015

Shelley Tremain
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In “Why Should Liberals Care about Equality?,” Ronald Dworkin distinguishes between two forms of liberalism, one form based on neutrality, and the other one based on equality. As Dworkin explains it, proponents of both forms argue against legal incursion into private morality, and argue in favour of increased sexual, political, racial, and economic equality; however, they disagree about which of these traditionally liberal values is the fundamental one, and which is its derivative. Liberalism based on neutrality takes as its fundamental value that one which holds that government must remain neutral with respect to moral issues, and it supports egalitarian measures only insofar as they can be shown to derive from that constitutive principle. For liberalism based on equality, the fundamental value is that one which holds that government must treat each of its citizens as an equal; egalitarian liberalism insists upon moral neutrality only to the extent that equality requires it.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 9 , Issue 2 , July 1996 , pp. 343 - 359
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1996

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References

I would like to thank Les Green and Lesley Jacobs for their provocative criticisms and suggestions on earlier drafts of this paper. A grant from The Social Sciences and Humanities Research Council for the period from 1993 to 1995 afforded me the opportunity to conduct this research.

1. Dworkin, Ronald M., “Why Should Liberals Care about Equality?” in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 205–13.Google Scholar

2. Ibid, at 205.

3. Jacobs, Lesley A., Rights and Deprivation (Oxford: Oxford University Press, 1993) at 86.Google Scholar According to the authoritative International Classification of Impairments, Disabilities, and Handicaps Relating to the Consequences of Disease (“ICIDH”), impairments and disabilities are the ‘biomedical’ dimensions of disablement, and handicaps are the ‘social’ disadvantages that accrue to one who has either, or both, of those supposedly prediscursive ‘pathological’ phenomena. See World Health Organization, International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease (Geneva: WHO, 1980).Google Scholar

Many contemporary disability theorists and activists endorse these terms and distinctions. 1 do not. In my work elsewhere, I argue that these distinctions ought not to be accepted. Although that discussion is tangential to my central argument in this paper, below 1 suggest another stance which ought to be taken with respect to these classifications. Since 1 will employ terms in my argument here which are not the conventional ones, I should take this opportunity to explain here the way in which I use them.

I use the term ‘disablement’ in order to denote the socio-political process through which certain persons’ bodily appearances, structures, as well as their gestures, movements and forms of communication are signified as disabled ones. I use the term ‘disabled’ to refer to one who has been marked (viz. disciplined) by this process. Finally, although many contemporary disability theorists use the term ‘handicaps’ in order to denote the social disadvantages that accrue to one who is claimed to “have” a disability, I regard the term as a pejorative one. Etymologically speaking, the term derives from the phrase “cap-in-hand” (c. 1850, OED at 1073) which referred to persons who ‘begged for hand-outs’. For an interesting introduction to issues surrounding disability and language, see Connors, Debra, “Disability, Sexism and the Social Order” in Brown, Susan E., Connors, Debra & Stern, Nanci, eds., With the Power of Each Breath: A Disabled Women’s Anthology (Pittsburgh, PA: Cleis Press, 1985) at 93–107.Google Scholar

4. Jacobs, supra note 3 at 86. Jacobs credits Dworkin with posing the problem in this way. See Dworkin, Ronald M., “What is Equality? Part 2: Equality of Resources” (1981) 10 Phil. & Publ. Affairs 4 at 288n4.Google Scholar

5. For reasons which I explain below, I self-consciously use the term “disabled person” rather than the increasingly-accepted term “person with a disability.”

6. Dworkin, “Equality of Resources”, supra note 4 at 311.

7. Ibid, at 296 and passim.

8. Ibid, at 307.

9. Dworkin, Ronald M., “What Is Equality? Part I: Equality of Welfare” (1981) 10 Phil. & Publ. Affairs 3 at 186.Google Scholar

10. Dworkin, “Equality of Resources”, supra note 4 at 300.

11. Ibid, at 309.

12. Ibid, at 307.

13. Ibid, at 311.

14. Ibid, at 289.

15. Ibid, at 286–87.

16. Ibid, at 300.

17. Ibid.

18. Ibid.

19. Ibid, at 301.

20. In order to facilitate my argument against Dworkin’s hypothetical insurance market, I do not consider here the way in which he associates ‘handicaps’ with lack of talent. I take up that discussion below.

21. Dworkin, “Equality of Resources”, supra note 4 at 297. In this context, Dworkin further argues that “Even handicaps that develop later in life, against which people do have the opportunity to insure, are not randomly distributed through the population, but follow genetic tracks, so that sophisticated insurers would charge some people higher premiums for the same coverage before the event. Nevertheless the idea of a market in insurance provides a counterfactual guide through which equality of resources might face the problem of handicaps in the real world.“

Unfortunately, for Dworkin, he misunderstands the ‘causes’ of disablement. According to the Final Report on Human Rights and Disability, of the estimated 500 million disabled persons in the world. 100 million are disabled as a result of malnutrition, chronic infections of the pelvis, iron deficiency, and anaemia. These are the major ‘causes’ of disablement in women in poor countries, and an estimated 100,000 Cambodians have been disabled as a result of landmines (Please see, The United Nations Economic and Social Council’s, Final Report on Human Rights and Disability, July 1991). As I argue below, Dworkin’s discussion is skewed insofar as it neglects the ways in which contingent socio-political factors constitute “disability.” If political theorists were to adopt the stance on disablement that I recommend below, then they could enquire into the ways in which disablement is interdependent with a host of seemingly unrelated phenomena including, military interventions, ecological contamination, poverty, global genocide of indigenous peoples, racism, homophobia, and sexism.

22. Dworkin writes: “If (contrary to fact) everyone had at the appropriate age the same risk of developing physical or mental handicaps in the future (which assumes that no one has developed these yet) but that the total number of handicaps remained what it is, how much insurance coverage against these handicaps would the average member of the community purchase?”. See Dworkin, “Equality of Resources”, supra note 4 at 297.

23. Kymlicka, Will, Contemporary Political Philosophy: An Introduction (Oxford: Clarendon Press, 1990) at 79.I would argue that Rawls’s counterfactual also fails in this respect.Google Scholar

24. See J. Sterba’s “Introduction” to Sterba, James, ed., Justice: Alternative Political Perspectives (Belmont, CA: Wadsworth Publishing Co., 2nd ed. 1992) at 11–12.Google Scholar

25. Dworkin, “Equality of Resources”, supra note 4 at 297.

26. As he puts it, “in order to decide how much insurance [a person who is disabled from birth, or who becomes disabled in childhood] would have bought without the handicap we must decide what sort of life he would have planned in that case.” See ibid, at 298.

27. Ibid, at 316.

28. Ibid.

29. Ibid, at 299.

30. Ibid.

31. Jacobs, Rights and Deprivation, supra note 3 at 97.

32. Ibid.

33. Dworkin, “Equality of Resources”, supra note 4 at 313.

34. Ibid. at 316.

35. Dworkin explains it in this way: “There are several ways in which we might construct a hypothetical or imaginary insurance market of that sort. We might try to imagine, for example, that people are ignorant of the skills they actually have, though they know how many people will turn out to have each skill, and therefore what their own chances are. People might then be supposed to insure against turning out to lack some particular skill at some particular level, either a very precise skill like the ability to capture September light at dusk in oil, or a more general skill, like a very good memory or a quick way with numbers.” See ibid, at 315.

36. Ibid, at 315–16. Above 1 show that Kymlicka is misguided insofar as he claims that Dworkin’s hypothetical insurance market against ‘handicaps’ resembles Rawls’ original position. As Dworkin’s remarks here indicate, Kymlicka’s claim also fails to describe the way in which the former proposes to ‘neutralize the effects’ of differential talents and skills. See Kymlicka, Contemporary Political Philosophy: An Introduction, supra note 23.

37. See Dworkin, “Equality of Resources”, supra note 4 at 315.

38. Ibid, at 316.

39. Ibid, at 315.

40. In order to ‘equalize’ differential talents, Dworkin constructs an insurance market against lack of talent, the specific details of which are tangential to my argument in this paper. But sec ibid. at 316–23.

41. Ibid, at 316.

42. Cf. Jerome Bickenbach’s remarks with respect to the relation between talents (skills) and disability. Bickenbach writes: “Dworkin’s account of resource equality is worth the time to outline because it represents one of the few treatments of disabilities that recognize them as interactional phenomena. Dworkin is willing to extend the notion of disability so that, in effect, it merges with an unnamed notion that does not distinguish between disabilities and abilities at all.” As my remarks below indicate, although Dworkin appears to have in mind this sort of construal of disability, he does not seriously entertain it. But see Bickenbach, , Physical Disability and Social Policy (Toronto, ON: University of Toronto Press, 1993) at 264.Google Scholar

43. Dworkin. “Equality of Resources”, supra note 4 at 313.

44. Ibid.

45. Ibid, at 315.

46. Ibid.

47. I make this claim a qualified one in order to allow that the degree to which one’s disablement would be written into one’s life-history would depend upon factors such as, whether one is a member of a disability community, whether one has disabled parents, siblings, or other family members, is disabled from birth or at some time thereafter, the degree to which one’s everyday environment is an accessible one, and so on.

48. This is precisely the systemic attitude that has motivated most disability theorists, activists policymakers, and so on to endorse the phrase “person with a disability” rather than the terms ‘handicapped.’ or ‘disabled person’ (see, for instance, the 1CIDH, supra note 3 at 28). According to these writers and activists, there are two reasons why the phrase ‘person with a disability’ is the preferable one. First, on their view, the phrase ‘person with a disability’ emphasizes that one’s disability is but an aspect of one, that is, the disability does not engulf one. Second, they claim that the very sequence of words in the phrase suggests that one’s “being” a person is ontologically prior to one’s “being” disabled.

Although I can understand the rhetorical force of the phrase ‘person with a disability.’ 1 selfconsciously use the last of the three terms (i.e., ‘disabled person’) for reasons that 1 articulate below. But see also, supra note 2.

49. Below, I suggest that disabled persons have far fewer resources of opportunity available to them than do non-disabled persons; one should expect this disparity of accessible opportunities to have consequences for the ambitions of disabled persons vis-à-vis the ambitions of non-disabled persons.

50. Dworkin obscures the fact that the ways in which people disabled from birth or shortly thereafter, and those who become disabled, say, in their adult years, would probably hold very different outlooks on living as a disabled person than would one who has recently become disabled.

51. Dworkin, “Equality of Resources“, supra note 4 at 299.

52. To be sure, Dworkin acknowledges that “there may be no answer, even in principle, to that question.” However he seems to think that if he constructs a counterfactual that is not too “personalized,” he will avoid this problematic. See ibid, at 298.

53. I attribute this phrase to feminist epistemologist Lorraine Code who poses the question, ‘Is the sex of the knower epistemologically significant?’ See Code, Lorraine, What Can She Know? (Ithaca, NY: Cornell University Press, 1991), especially ch. 1.Google Scholar

54. For feminist arguments with respect to the situated, partial, perspectival, and value-laden character of knowledge-claims, see Code, ibid.; Collins, Patricia Hill, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (Boston: Unwin Hyman, 1990)Google Scholar, and Haraway, Donna J., “Situated Knowledges” in Haraway, Donna J., ed., Simians, Cyborgs, and Women: The Reinvention of Nature (London: Free Association Books, 1991).Google Scholar

55. Dworkin, supra note I at 205.

56. Ibid.

57. Ibid, at 205–06.

58. Dworkin, “Equality of Resources”, supra note 4 at 299.

59. In Martha McCluskey’s discussion of ableist discrimination in access to public transportation, she writes: “in terming the physical needs of people with disabilities ‘different,’ ‘special,’ and in need of ‘accommodation,’ society implies that able-bodied people are the norm, and that people with disabilities are the deviations. Able-bodied people are not considered ‘different’.” See McCluskey, Martha T., “Rethinking Equality and Difference: Disability Discrimination in Public Transportation” (1988) 97 Yale L. J. 863. The ableist assumptions to which McCluskey refers are implicit everywhere in Dworkin’s discussion of ‘handicaps’.CrossRefGoogle Scholar

60. Recall that although Dworkin does distinguish equality-based forms of liberalism from ones which are based on neutrality, he does note that liberalism based on equality insists that government must recognize moral neutrality as a value to the degree that equality requires it. See his “Why Should Liberals Care About Equality?”, supra note 1 at 205.

61. I want to suggest that here, again, Dworkin underestimates the degree to which his claims are epistemically indeterminate. My argument is that if a given disabled person could choose to insure against various states of affairs, one of which is that person’s disablement, it is not as clear as Dworkin suggests it is which one of those states of affairs that disabled person would choose to insure against.

In tennis champion Arthur Ashe’s memoirs, for instance, Ashe (who died of AlDS-related illnesses) states unequivocally that “AIDS is not the heaviest burden [that he had] to bear”. For Ashe, the greatest burden he was forced to carry was ‘race’, that is, the systemic racism he confronted throughout his life, beginning with his childhood in the segregated southern United States. See “The Burden of Race” in Ashe, Arthur with Rampersad, Arnold, Days of Grace: A Memoir (New York: Ballantine Books, 1993) at 139–86.Google Scholar

62. I owe this suggestion to Les Green.

63. Dworkin, R.M., “Liberalism” in Mailer of Principle (Cambridge, MA: Harvard University Press. 1985) at 190.Google Scholar

64. In order to justify the way in which he limits his redistributional scheme to privately-owned, individually-held resources, Dworkin writes: “From the standpoint of any sophisticated economic theory, an individual’s command over public resources forms part of his private resources…In the present essay, however, I shall for the most part assume that the general dimensions of ownership are sufficiently well understood so that the question of what pattern of private ownership constitutes an equal division of private resources can be discussed independently of these complications.” See “Equality of Resources”, supra note 4 at 284; emphasis added. Below 1 show how Dworkin’s stance here renders inadequate his redistributional scheme with which to “compensate for handicaps”; moreover, I suggest that his stance obfuscates the systemic barriers to resources of opportunity that numerous constituencies confront.

65. Rioux, Marcia H., “Towards a Concept of Equality of Weil-Being: Overcoming the Social and Legal Construction of Inequality” (1994) 7 Can. J. L. and Juris. 127 at 131.CrossRefGoogle Scholar

66. Peter S., Cane, ed., Atiyah ’s Accidents, Compensation and the Law, 4th ed. (London: Weidenfeld and Nicolson, 1987) at 472–83.Google Scholar

67. Ibid, at 472–76.

68. Zola, Irving with Hafferty, Fred, “In Memory” (1995) 15 Disability Stud. Quart. 1 at 5.Google Scholar

69. Ibid.

70. Cane, ed., supra note 66 at 476.

71. Cf. Bickenbach’s remarks of his Physical Disability and Social Policy with respect to the sort of compensatory mechanisms which 1 suggest here. Bickenbach dismisses compensatory schemes as a basis for disablement policy; he maintains that “the principle of compensation only applies to those impairments and disabilities that are directly caused by the wrongful acts of others.” As he explains it, in order for compensatory schemes to be used as the mechanism with which to eliminate the persistent inequalities that disabled persons face, an “irrational distinction between human-created and non-human-created impairments” would need to be drawn.

I wish to point out however that here, and elsewhere in his discussion of the ‘inappropriateness’ of compensatory schemes as a basis for disablement policy, Bickenbach confuses forms of equalization compensation with equivalence compensation. For instance, he writes:

…a more telling objection to the status of equivalence compensation as a form of compensatory justice is that it is really a form of distributive justice. The injustice of social disadvantages that are burdens not equally borne by all is an injustice of distribution, not compensation. Equivalence compensation, it would appear, is really a corollary of the distributive justice principle of egalitarianism (see supra note 42 at 209– 11).

First of all, equivalence compensation (as well as, substitution compensation) is a form of tort law, not a form of distributive justice. As my arguments above indicate, equalization compensation ought to be regarded as a form of distributive justice (see Cane, supra note 66). If, as 1 recommend, equalization compensation were used as a strategy for equalizing the situations of disabled persons, the “irrational distinction” that worries Bickenbach would be a red herring. In fact, the only reason Bickenbach seems to offer in order to justify the way in which he rejects equalization compensation is that one in which he claims that this form of compensation would not make disability policy “coherent”. But, in my view, this is a poor reason, one which seems to privilege bureaucratic expedience over the dignity of disabled persons. However, I do wish to draw attention to remarks which Marcia Rioux has made. Rioux indicates the ways in which affirmative action policies are inappropriate ones with which to equalize the social positions of intellectually disabled persons. See Rioux, “Toward a Concept of Equality of Well-Being” supra note 65 at 139-42 and passim.

72. Foucault, Michel, The History of Sexuality, Volume I: An Introduction, trans. Hurley, Robert (New York: Pantheon Books) at 144.Google Scholar

73. Starr, Paul, “Social Categories and Claims in the Liberal State” in Douglas, Mary, ed., How Classification Works: Nelson Goodman among the Social Sciences (Edinburgh: Edinburgh University Press, 1992) at 176.Google Scholar

74. The following are examples of the sort of politicized model of disablement that I have in mind: Hahn, Harlan, “Civil Rights for Disabled Americans: The Foundation of a Political Agenda” in Gartner, Alan & Joe, Tom, eds., Images of the Disabled, Disabling Images (New York: Praeger Publishers, 1987);Google Scholar Hahn, Harlan, “Towards a Politics of Disability: Definitions, Disciplines, and Policies” (1985) 22 The Social Sciences J. 4 at 87;Google Scholar Oliver, Mike, The Politics of Disablement: A Sociological Approach (New York: St. Martin’s Press, 1990);CrossRefGoogle Scholar Morris, Jenny, Pride Against Prejudice: Transforming Attitudes Toward Disability (London: Women’s Press, 1991);Google Scholar the essays in Fine, Michelle & Asch, Adrienne, eds. Women with Disabilities: Essays in Psychology, Culture and Politics (Philadelphia: Temple University Press, 1988);Google Scholar as well as various essays in Tremain, Shelley, ed., Bodies of Knowledge: Critical Perspectives on Disablement & Disabled Women (Toronto, ON: Women’s Press, forthcoming).Google Scholar

75. This is Evelyn Kallen’s term. See Kallen, Evelyn, Label Me Human: Minority Rights of Stigmatized Canadians (Toronto, ON: University of Toronto Press, 1989).Google Scholar

76. Rioux makes a similar point with regard to Dworkin’s maxim of “equal concern and respect”. See supra note 65.