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Disability and The Law

Time Distribution :2011-11-10 13:43:22author:admin source: view count:0 Friend Comments 0 strip

Professor William P. Alford, Vice Dean, Harvard Law School

It is an honor to be at this conference jointly sponsored by Renmin University and the CDPF. My ties with Renda go back 25 years and I am privileged to be an honorary professor here. My links to CDPF are newer but I’ve greatly enjoy getting to know many in it through my work as a board member of SO which now provides athletic, educational, health and other programs for more than 2.2 million individuals worldwide, including more than 500,000 here in China. I also want to thank Ford Foundation and Ms. Titi Liu for making this event possible.

I am here principally as a comparative law specialist and will structure my remarks as a commentary on the fine papers of my foreign colleagues. I have five points

The first concerns history or, as Kongzi said, 温 古 而 知 新(learn from the old to understand the new). Unfortunately, that history is a sad one – everywhere. The treatment of persons with disabilities – and especially intellectual disabilities – was disgraceful until fairly recently. In the United States, we condoned the involuntary sterilization of persons with intellectual disabilities until the middle of the 20th century. Indeed, Oliver Wendell Holmes, who may have been the most eminent American Supreme Court Justice of the 20th century went so far in 1927 as to uphold the legality of those sterilizations, writing “Three generations of imbeciles are enough.”

I mention this not to subject my own country to undue criticism. Nor do I offer this as an excuse for others, but rather to stress that the challenges we face are shared by all of humanity. When I first approached wealthy foreign friends a decade ago to contribute money to help disabled children in China some told that I was wasting my time – that such people had been treated poorly here and always would be. I refused to believe that then and I was right, as demonstrated by China’s extraordinary progress with regard to persons with disabilities over the past decade. Appreciating our common history is vital because all of us must make considerable additional progress if we are to live up to our obligations under the new United Nations Convention which was approved in December by the General Assembly.

A second point I would make concerns our conception of disability. Just as we now know that no society can afford to limit its treatment of people with disabilities to whatever was the norm historically, so, too, we must realize that conceptions – and definitions – of what constitutes disability ought not to be static but should change to meet changing circumstances. At least in my country, there are individuals who a few years ago we might not have thought of as having a disability who we now recognize as having a significant disability that warrants the provision of services and other assistance. And vice versa. The crucial point here is that we ought not to take a static or rigid view of what constitutes disability. This has changed constantly over time throughout the world and seem certain to continue to change further – most likely in the direction of being increasingly inclusive – that as nations have experienced greater prosperity, the definitions of what constitutes a disability – and with them, the number of people classified as having a disability – has grown. Contrary to what some friends assume, it is nations such as the Scandanavian states and Canada that tend to have the largest proportion of disabled persons in their population.

By my attention to commonalities, I do not mean to suggest that there is a single model for all states. Indeed – and this is my third point – there are a variety of models that one might pursue, each with strengths and limitations. Allow me to lay out what I see as some of the principal features and assumptions of two principal models, realizing we have real experts on them presenting here.

What might be described as the rights oriented model is, as Professors Stein and Gerard Quinn have observed, focuses around the individual. It sees individuals as endowed with rights and imposes principal responsibility on them to vindicate their rights, although it is important to note that, at least in the US, the state still has considerable social welfare obligations. Alternatively, in what might be termed the social welfare model, the state assumes far greater responsibility to set a framework through which the needs of persons of disabilities will be addressed, although it is also important here to note that, at least in Europe, the individual is increasingly seen as a locus of rights.

The advantages of one of these systems point out the limitations of the other, and vice versa. When it works as intended, the rights oriented approach has the advantage of being responsive both to the changing nature of society and to the particular and diverse needs of individuals who it endows with the capacity to initiate the relief that they need by invoking their rights. That might take the form of litigation but it might take other simpler forms – as in using the language of rights to encourage one’s fellow citizens to treat the disabled better or in pursuing administrative remedies.

The rights based model also has the potential to be very satisfying to citizens with disabilities. The creation of rights sends a powerful legitimating message both from and to the whole nation. It serves as a reminder to persons with disabilities that they are not alone – that they are not simply wards of the state or objects to be acted on by others

As I have seen in my pro bono work, this can have enormous benefit in giving individuals a sense of belonging to society and in helping people more fully realize their own individual potential. It also has the benefit of immediacy and specificity. In a large and busy country like my own, individuals who suffer discrimination can realize the problems they are suffering and envision what kind of solutions may be workable and satisfying far more rapidly than any bureaucracy – leading to greater citizen contentment and through that, greater social stability. And, of course, the rights based approach also sends a message to other (i.e., non disabled) citizens that their fellow citizens deserve are as entitled to the benefits of citizenship as anyone else (at least in theory).

The rights oriented model, of course, also has limitations. It places considerable responsibility on the individual to vindicate his rights. If the individual is capable, informed, aggressive and/or able to secure assistance, that is one thing, but if he/she is not, then there is a danger that the rights may go unrealized. For this reason – it is especially important in this model that active efforts be made to keep citizens informed of their rights and that both legal professionals and non governmental groups be available to help citizens in understanding what their rights are and in knowing how to seek real redress. The challenge of vindicating one’s rights – and the question of what constitutes adequate representation – is more acute for persons having intellectual disabilities – although I should also say that my experience with the Special Olympics (which includes persons with intellectual disabilities on our board of directors) indicates that we should not underestimate the talent, judgment and potential of people with intellectual disabilities.

The rights model is also less likely to have a systemic impact than the social welfare model. This has three elements. The first is the flip side of one of the strengths -- that by its very nature, litigation tends to be more particular than legislation -- often responding to a specific problem or person rather than setting out a comprehensive agenda. The second is that the jurisdictional reach of courts generally is narrower than that of legislative or executive bodies. And third, courts – even in the US – lack real enforcement powers of their own and so, ultimately are reliant on popular respect for law or on moral suasion or on the power of the executive to ensure that their decisions are followed

Let me turn to the social welfare model briefly. First, on the positive side, it is evident to me that there is far less likelihood of leaving people behind than in a rights oriented model, although we should realize that to be well functioning, the social welfare model needs far sighted legislators, caring officials, active NGOs, and an informed citizenry. On the less positive side, it seems to me that in addition to being less dynamic, a social welfare system more readily leads to institutionalized solutions, quotas and the like because one is, after all, dealing with bureaucracies and bureaucratic habits of mind. These tend to have their problems. The trend in the US, for instance, has been to de-institutionalize because a great number of individuals thrive much better in more mainstream settings.

Of course, neither of these approaches operates in isolation. As Professors Quinn and Degener note in their papers, the influence of the rights oriented model is increasingly felt in Europe which has embraced its own counterpart to the US’s pioneering legislation as have many other nations. And less sanguinely, some political figures in Europe are endeavoring to pare the costs of their social welfare model, partially in response to the perception that the American rights oriented model is less costly – although my own view is that the comparison is, in fact, a very difficult one to make as the costs from the public treasury of the social welfare model are much easier to discern and calculate than are the costs of the American model leaving some citizens without a basic social safety net.

The preceding comments on these models and their increasing convergence suggests what I would like to label as my fourth observation – namely, that nations crafting their own disability laws need simultaneously to be mindful both of their own peculiar circumstances and of undeniable world trends. The rights oriented and social welfare models each grow out of particular historical settings and mirror important values of their originating societies. As Professor Stein has written, the Americans with Disabilities Act clearly was influenced by the larger civil rights movement. Similarly, the social welfare model bears the imprint of the deep western European belief that the life of every citizen is diminished if any citizen goes uncared for. And whatever success each model is enjoying in its originating nations clearly is tied to the existence of other institutions that go beyond disability. So, for instance, the ADA presumes and depends for its functioning on the existence of a robust legal system with a large and entreprenurial bar. And as Ms. Anuradha Mohit’s paper demonstrates, states outside the West will need to make appropriate adaptations to their own circumstances for either of these models to work smoothly.

This leads me to my fifth and concluding point – which is that, even as we acknowledge the need for nations to reflect their differing national circumstances as they develop their legal protections for persons with disabilities, there are certain unmistakable universal trends. This is best borne out by the recently concluded United Nations Convention on the Rights of Persons with Disabilities which is a triumph not only for its target audience but for all of humanity -- if we can make its protections a reality. That treaty – as only the seventh major human rights agreement of the UN and as the first of the new millennium – makes it clear that every society has profound obligations to persons with disabilities. Each of our other four foreign guests has played a role in the shaping of this agreement, as have the representatives of China.

There are other trends that are important to observe – perhaps none more appropriate for concluding this short paper than to be appreciative of the growing importance of civil society in helping each society understand and discharge its obligations to persons with disabilities. As Professor Quinn observes in his paper, the traditional social welfare model is no longer fully sustainable “in terms of cost…Europe needs more active citizens and workers in its labor markets.” As his comments suggest, a vibrant civil society has the potential to ease some of the burdens that otherwise some might think too daunting for the state alone to bear. As the experience of many nations illustrates, in both the rights oriented and social welfare models, an engaged citizenry is needed to ensure that persons with disabilities receive their full legal protections and welfare benefits. As my own experience working with persons with intellectual disabilities confirms, the creation of greater vehicles for persons with disabilities to be fully productive members of society benefits not only them but also society. But, again, the benefit is not just for persons with disabilities.

I thank you for considering these thoughts and welcome your questions now and in the future.

Note: Professor William P. Alford, Vice Dean, Harvard Law School