Social Model of Legal Disability

Disclaimer: I have not done sufficient research to see if this connection has been explored somewhere else. I put it here just to get it down on paper somewhere where I’ll remember it.

The Social Model of Disability

Disability theorists have long drawn the distinction between the medical model of disability and the social model of disability. The medical model of disability looks at disability exclusively as an individual condition, and solutions as primarily medical-technical therapies and assistive technology for that individual. The social model, while acknowledging there is some physical impairment, argues that it is the way society is organized that transforms this into a disability. For example, it may be that a person can’t climb stairs, but it is a social choice to build building that require this ability (e.g. by not having the entrance on the ground floor, not building an elevator, etc.).

Access to justice advocates could probably learn a lot by applying this theoretical model to marginalized people facing the justice system.

The Social Model of Legal Disability

It’s far more obvious that the accessibility of the justice system is the result of social decisions. Nevertheless, we still overwhelmingly favour clinical solutions that treat individualized problems to address access to justice. For instance, is a person’s lack of legal literacy solely a personal disability (e.g. their lack of legal information, education, etc.) or does it reflect something about the complexity of the system? Obviously both, and this is acknowledged by access to justice reports, but embedding this insight within a social model of disability offers a rallying framework to systematize the insight.

Is it really necessary?

I’m not sure if this already acknowledged insight really needs this theoretical framework to give it any more force. Nevertheless, an in-depth exploration of the analogy might reveal insights for both traditional accessibility advocates as well as access to justice advocates.


Poets and the Legislators of the World

“Poets are the unacknowledged legislators of the world.”

-Percy Shelley

To make their recommendations, policy makers sift through many different types of information. They look at data, reports, news article, industry submissions, academic articles, blogs, infographics, letters from ordinary submissions to name, and much more. What role should art play in all this? How should a policy maker’s analysis of an issue be affected by songs, films, television, paintings or poetry?

It seems to me ridiculous to ask Bob Dylan his opinion on any given policy issue, but it would have been equally foolish once upon a time not to listen to his songs. I think this is because a good song tells us at least as much about an issue as a good opinion editorial, it just doesn’t tell us the same kind of thing. Perhaps a more modest title for poets would be the “feel-tanks” of the world.

Like think-tanks, their appeal is their “independence” (and like think-tanks this is always worth questioning), and freedom to imagine things anew. Their methods ought to be just as rigorous in capturing the kind of feeling, both popular and concealed, of society. In releasing their “report” to the community, every artist poses the kind of question that could never fit in a scientifically valid survey. Policy makers would do well to understand both those questions and their answers.

Progress Between a Rock and a Hard Place: Bill 62, Julie Payette and the Historic Bookends of the Religiously Neutral State

Bill 62 in Quebec and the recent comments of Governor-General Julie Payette to the Canada Science Policy Conference both provoke and answer the same question:

What does it mean to have a religiously neutral state?

Despite this fact, I have yet to find an analysis that treats them together. Yet it is worthwhile to consider these two events together, particularly from the perspective of one inclined to oppose the former and support the latter. Looking at these events from this perspective, we see an inevitable tension of a progressive government caught between the Enlightenment and post-modernity.

On the one hand, the so-called “superstitious” (i.e. those who believe in astrology, the Bible, etc.) have always been the great villains of the Enlightenment. Progress since the 17th century has self-consciously been about overcoming these people, or at least protecting the public sphere from them, thus the need for a religiously neutral state, and, in the French context, an explicitly secular state. What’s more, especially in its more radical form, this has been accomplished not solely, or even primarily, by rational argument, but through satire and mockery. Both this aspiration and feeling are succinctly captured in the content and tone of the Governor-General’s comments.

On the other hand, for the post-modern, the great villains of (lower-case “p”) progress have been the mechanistic and totalizing institutions of bureaucracy, industry, and war. These institutions have both been made possible by the advances of science, and purport, whether justly or otherwise, to reflect the scientific image of the world. That is, it’s important to remember that science has not only been a method, but as a set of ideals and institutions, a crucial pillar of modern Western cultures. The victims of these processes, according to its critics nearly from the beginning to today, have included among others: the spiritual life of the individual, the physical life of the soldier and civilian, and ultimately the victims of the Holocaust and the atomic bomb (see Arendt above). But most importantly for our discussion now, the post-colonial lens has sought to make clear what this violent objectivity had been doing (and continues to do) to people with other ways of knowing and going about the world. Bill 62 is a particularly stark example of how these “Others” are treated by bureaucracies claiming to be neutral.


Now, of course, in such a short space I am oversimplifying, but when it comes to day-to-day policy making, reaction to the news, and commenting on the internet, it is not in great nuanced tomes, but in, often unarticulated, assumptions and thoughts even shorter than this that these big ideas are expressed.


Now, on the face of it, there is no conflict between these two positions. A person can agree with the Governor-General and still think it is wrong to deprive somebody of government services because of their spiritual or cultural practices. This is a conventional position of tolerance, i.e. protection without agreement or even respect. The tension lies not so much in the acts themselves but in the attitudes behind them and how these come together in the context of our current government.

Consider the following. Recently, I have attended a number of events where Indigenous Elders and other communal leaders opened with prayers. At least a few times, these prayers have been to “The Creator”. While I know little about the spirituality of the nations these Elders came from, the title “Creator” suggests some kind of involvement in the origins of life. While I don’t know enough to understand whether these statements are meant to be taken empirically or some other way, I know that making the distinction is already presupposing a certain cultural lens.

In this light, what do the comments of the Governor-General then mean for a Government committed to new nation-to-nation relationships? As I recently heard Professor Douglas Sanderson argue, the residential schools were only possible because Indigenous ways of life and knowing were not valued so it only follows that reconciliation will not be possible until those ways of life and knowing are valued.

Now, you might be inclined to say that the tension I am presenting relies on a massive, and quite frankly offensive, equivocation between groups whose political positions have not only been vastly different but directly opposed (i.e. the Churches and the spiritualities of Muslims or Indigenous peoples). But if we remember that anyone’s spirituality is not merely a political posture but a serious claim about the world, we cannot so neatly contain the implications of our statements about the world or the tone in which we share them to the groups towards which we direct them. To state something and exempt some group from its harsh implications is as disingenuous as it is condescending. Supportive relativism is as patronizing as violent objectivity is dismissive.

But so what? All this has been said before, so why is it worth repeating? However the government chooses to ultimately manage our fundamental differences, it will need to be honest with itself and for the federal government that means grappling with this tension among others. I look forward to seeing that article.


Outcomes in the Service of Process

It has been said that there are two kinds of legitimacies involved in policy making: input and output. Input legitimacy is procedural legitimacy, i.e. do the people feel like they have a real say. Output legitimacy comes with the acceptability of outcomes. There is a fundamental tension between these kinds of legitimacy insofar as the one depends on the involvement of the people and the other depends on the involvement of experts.

There is a tendency to reconcile them by arguing that the people, like the experts have valuable knowledge and information to contribute (e.g. their lived experience). This may motivate us to invest more in input, but even at its best this will be input in the service of output. That is, at the end of the day we are still only motivated to pay attention to input only insofar as output is improved.

This might seem like it isn’t such a bad thing. After all, it does produce a coherent picture of policy making and it does lead to better policies (and isn’t that the point?). To understand why inputs in the service of outputs, even at their best, are always inadequate we need to understand the difference between a harm and a wrong.

Suppose for example that you have a fatal but curable illness. The thing is that the cure must come through a needle and you are deathly afraid of needles. Your doctor, upon learning this, waits until you fall asleep and while you are asleep injects you with the cure. Has he harmed you? He saved your life. Has he wronged you? Unquestionably. Rational or not, you had a right to consent to or refuse that medical treatment and the doctor disregarded that right (making what he did assault).

Output legitimacy, broadly speaking, is concerned with improving welfare and avoiding harm. Input legitimacy, however, is fundamentally concerned with rights (i.e. all those who have a right to be included ought to be included). If we only consult a patient for example insofar as it helps their health we are not respecting their rights.

The only time we can be absolutely sure that rights are being respected is when output serves input, an idea much harder to accept. Output serving input is where the ultimate policy, regardless of its success on any metric genuinely reflects and validates the involvement of those who made it.

In Canada, perhaps the most important example of where this needs to happen is in a genuine nation-nation relationship between the federal government and the hundreds of First Nations, Métis, and Inuit. Much well intentioned colonial policy has taken all decision-making power out of the hands of the people themselves in the name of outcomes for those people. Indeed, when funding or any decision-making authority is hesitantly given over, it is with the most possible oversights, which again are geared toward the outcomes. Ironically this has produced terrible results. Output serving input means that the government is quite willing to see a policy fail if it means guaranteeing the genuine ownership over the policy by the people.

Now, ideally, you want both output to serve input and input to serve input, but since the tendency of our era is to lean very heavily to one side I think much more emphasis should be placed on output serving input.

Politics as Struggle

People like the image of struggle to describe the nature of politics, but we should be attentive to its two possible interwoven sources. On the one hand, struggle could imply the need to overcome, i.e. to eat or be eaten, etc. This gives a morbid excitement to politics and both sanctions and lauds actions with the real or imagined pressure of survival. On the other hand, struggle is equally implied by the commonality of what is being decided, i.e. it is precisely the fact that we are discussing our shared life that that our differing visions contend. The difference between these two ideas of struggle is whether it is taken for granted that at the end of the day the other is still there.

On the Necessity of an Ethics of the Meantime

Most political projects that cannot be realized immediately and do not simply seek to preserve the status quo require an “ethics of the meantime” (i.e. how shall I act before the project is realized). It is insufficient to imagine or theorize the end goal and simply say “and in the meantime we will work towards it.” It is insufficient even to theorize about how it will be realized, because carrying on any such project implies the survival of its practitioners at least for a time and therefore the day-to-day demands of life which at first glance extend beyond all but the most religious projects. If one is not attentive to this question of how to act in the meantime one will miss how much power failing to grapple with this question gives to the status quo. Descartes, for instance, makes this explicit in The Meditations (I) when he discusses, however briefly, the nature of his vacation as he pursues his project of radical doubt and reconstruction. That someone who begins from the inadequacy of the status quo and sets out to so radically revise it should so completely reproduce it in his actions is cause for note.
Descartes may be able to respond that because of the contemplative nature of his task his method need not, and indeed could not, be mirrored in his actions. For those pursuing an ethical, social, or political project, however, this explanation is not so readily available.

Between Technocracy and Populism: A Not So Modest Proposal

The Problem
I have heard it said that we are on a precipice between technocracy and populism. That is, that we are at risk of falling prey to the unaccountable discipline of “the experts” or the unchecked whims of “the people” (or at least those who claim to speak for them). If this is in the least bit true, (and to a lesser extent even it is not), what we need is a renegotiation of the relationships between various experts and “the people”.
Both extremes embody a break-down in these relationships as one group turns away from the other and denies it any place in interpersonal or collective decision-making processes. What is needed therefore at the individual, institutional, and societal levels are ways for these groups to become willing and able to turn back to each other, and maintain truly constructive relations.
My Proposal is Nothing New
The breakdown and reconciliation of these relationships are everywhere already under way to different degrees and in different ways. Examples of breakdown include UFOology and anti-vaccination movements (a turn away from scientific experts). Examples of attempts at reconciliation include the renegotiation between women and doctors that took place through the Women’s Health Book Collective (allowing the women to talk back to condescending experts), or the movement to use plain language in government (forcing experts to communicate understandably).
Where to Begin in Principle
Since these renegotiations are already underway, what I am proposing therefore is only that we self-consciously link these disparate reconciliation efforts across medicine, science, policy making, law, economics, and elsewhere and that we ground these reconciliations in common principles. I think this can be done by starting with the difference between the kind of knowledge that entitles experts and the people to a stake in the decision-making, method on the one hand and experience on the other.
Where to Begin in Practice
Andragogy, the methods and principles of teaching of adults, offers a basis for experts and people to both communicate to the other what only they can know and learn from the other what they need to know. If these principles and methods can be practiced, not simply in night schools and continuing education classes, but as a pillar of professional and democratic life everywhere, what I think will be achieved is nothing less than a relational autonomy* on a societal scale.
[If you’ll allow me a momentary grandiose flight of fancy–in so doing, we will be retrieving the promise of the Enlightenment from the clutches of both the tyranny of reason and hyper-individualism.]

More on this to come…

*relational autonomy is the idea that autonomy is not an individual characteristic or something that can be achieved by an individual acting unilaterally. Rather, it is the result of a network healthy and supportive relationships on which we all necessarily depend.

Laptops in Class

I think the phenomenon of taking class notes on laptops (issues of distraction aside) embodies quite well the development of modern social structures of knowledge. It seems that taking notes by laptop may be worse for memory. Yet it obviously lends itself to more sharing, particularly in, for example law school, where some sites are dedicated exclusively to crowd sourcing case briefs. This reflects precisely the trend of modernity in which the individual knows much less about their immediate environment (e.g. their food clothes, house, environment, etc.), but collective knowledge is exponentially more. This led Weber to make to the insight that modern man thinks he knows more not because he actually knows it but feels he could find it out if he wanted. (On why even this is deceptive, see my post “The Teenage Years of the West”)

A Post-Growth Academy?

According to a 2015 article “Prof, No One is Reading You“, the average journal article is read by no more than 10 people. The authors point out that 82% of articles in the humanities, 32% in the sciences, and 27% in the social sciences are not cited once, and even a citation is not an indication that it’s been read in full (roughly 20% of cited articles are read in full). The reason for this is simple: there’s just too much to read. Because of the “publish or perish” mantre and the valuing of output over influence, over 28,000 English-language journals publish more than an estimated 2.5 million articles every year, and this number increases by 3.5% a year. It’s just too hard for the system to digest it all.

Enter the “post-growth” idea.

Post-growth refers to an attempt to envision a prosperous society that does not depend on perpetual growth, usually in the name of living within the finite resources of the planet. Whatever the merits of this idea are for the wider economy, post-growth as an ideal speaks to the very core of the academy’s intellectual indigestion.

What would a post-growth academy look like? The Slow Professor offers an initial vision. Transforming publishing to an opt-in rather than opt-out (or, more accurately, no escape) system is a simple way to ensure that when something does get published, there was some kind of reason for it beyond external pressure. In the mean time, professors would not be idle, but be able to devote more time to non-productive activities like teaching, thinking, and making the work they do choose to publish go further, i.e., engage with the current literature in greater depth, and go farther, e.g., by spending more time speaking to the public and reaching out directly to those who could benefit from the research.

Of course, this romantic ideal is not without its dangers. Defenders of the current system can always argue that it is necessary to write 1000 obscure articles to produce even one revolutionary article and that one cannot decrease the former pool without decreasing the latter. Furthermore, an article may languish in obscurity for many years but always has the possibility of being discovered and it only takes one such meaningful discovery to justify its existence. Finally, it is very difficult to know ahead of time which articles are really “worth publishing”. There is no reason to think that authors will be better judges than editorial boards are currently.

These are potent cautions for an uncompromisingly post-growth vision of the academy. Nevertheless, we are facing a serious problem in one of society’s central institutions and some imagination is called for. The post-growth academy may not be a silver bullet but it offers a thought-provoking and focused foil for our current academy worthy at least of a little discussion.