How is disability constructed? What are the mechanisms and processes by which law, economy, and society interact to produce disablement? Why are rights unlikely to be the sole answer? And, then, why are some of those categories associated with the devaluation of the individual?
My current research and theory of Ability Capitalism explores the constitutive role of law in markets that constructs dis/ability, and suggests some answers to these questions.
So, what’s the basic idea?
I’m going to start from the assumption that you are familiar with the different models of disability: individual/medical, social, human rights, and so on. If you’re not, please take a minute to check out this page which gives a great summary of the different models. We are starting from the social model as set out in UPIAS that distinguishes the social concept of disability from an underlying physical, mental, or energy impairment.
The TL;DR of Ability Capitalism is that disability is core concept central to market form and function. It is constructed at market boundaries, determining who is included and excluded, and regulates markets in the process, performing an economic function. How does it do this? Well, to fully understand how, where, when, why, and by whom disability is constructed, we need to understand that markets are legal institutions. Law constitutes markets by commodifying and ‘coding’ assets, unlocking the latent value therein and making these assets available to market transactions (Pistor, 2019; Lang, 2017). The law also predistributes rights and interests, shaping actor preferences in the process (Somers, 2022). And, in setting the foundations, structures, and preferences of markets and market actors, the law sets the stage for expectations of workers and consumers with ‘standard’ bodies and minds (that is, non-impaired people) (Russell, 2001). In other words, disability is a technology of governance whereby the dominant neoclassical economic rationalities determine processes through which bodies are coded and ranked according to their abilites and capabilities.
If you’re familiar with my previous work, you’ll be familiar with the econo-socio-legal nexus, or the intersection of economic, legal, and social spheres, as set out in my first book (there’s more about it here). The brief version is that we can, and should, see legal and economic phenomena as two sides of the same, social coin; continuously interlinked and mutually re-co-constitutive. The one cannot exist without the other, and we cannot understand one without the other. This is fairly uncontroversial, as per the work of Karl Polanyi, and the expanding canon of neo-Polanyian Economic Sociology and Economic Sociology of Law.
As I’ve previously written about, building on the works of Sabine Frerichs, Amanda Perry-Kessaris, Diamond Ashiagbor, and others, an Economic Sociology of Law (ESL) lens enquires into the economic life of the law, seeking to understand and challenge the dominance of particular ways of doing (social regimes) and thinking (social rationalities). Specifically, it notes that these dominant regimes and rationalities tend to be market-oriented, aligning with neoclassical values and principles.
But, markets are not ‘natural’, spontaneously arising, self-regulating phenomena, as mainstream theory would have us believe. The ‘natural’ market is a fallacy. Why?
Imagine yourself in a state of nature. There is another person there and you want to start trading with them. You have one object which you don’t much care for, and they have something that you want. So you arrange a deal whereby you’ll swap some of your object in exchange for some of theirs. Assuming that they also value your object more than what they are giving you in exchange for it, you have both managed to maximise your utility through this arrangement. Congratulations. A market, of sorts, has emerged. Mainstream theory would claim this market to have arisen spontaneously; naturally.
Only there’s a stumbling block here. You see, this exchange or trade could not have taken place without some pre-allocation of rights: you need to own your object, and you need to be fairly certain that the other person owns their object, otherwise the trade is meaningless. So, we need some sort of predistribution of rights (in this case, property or ownership rights over said objects) for any sort of market to establish itself. And that is where Margaret Somers’ notion of legal predistribution comes in.
I won’t go on to point out here that, for anything more complex, we also need money (legally constructed and guaranteed by the state), and systems of rights and obligations in the form of contract and tort laws, company laws, property laws, and so on.
Thus, we come to the realisation that markets are fundamentally legally constituted. They are legal constructs, and cannot emerge without the law. This goes both ways though. Law, through processes of legal coding, unlocks the latent value in assets or commodities, as per Katharina Pistor’s The Code of Capital. As Andrew Lang points out in his chapter on market ‘anti-naturalisms‘, there must be latent value in your object for those property rights to be able to ‘code’ it, or to transform it into a commodity that you can sell or trade in a marketplace. See? The legal and the economic are, necessarily, two sides of the same, social, coin.
So, then, you ask, what does all this have to do with disability?
To answer that, let’s look at one example of an econo-socio-legal nexus at the boundary of one particular market: the labour market. Recall that markets are legal phenomena, and the commodification of labour into something that you or I can sell (and that employer can buy) is done through legal technologies constructing a ‘standard employment relationship’ (Fudge, 2017). This is usually achieved through such mechanisms as the employment contract. But, the standard employment contract is just that: standard. It presupposes certain assumptions and creates certain norms about the ideal-typical worker who has, in the words of Marta Russell, a ‘standard body and mind‘.
This ideal-typical, or standard, worker is one that can produce the most surplus value for the employer. Those with non-standard bodies or minds are those for whom there might be additional costs involved, or uncertainties about our employment: are we going to need time off sick, or are we going to be late for work because the ramp on the bus wasn’t working again?. Thus, disabled people tend to be ‘last hired, first fired’, and we end up with things like the disability employment gap and the disability pay gap.
But, you say, we have rights now. Things like the Equality Act 2010 in the UK, or the Americans with Disabilities Act 1990 in the US, amongst many others. There are two main problems with what I call this ex post rights-based narrative. The first is a simple chronological issue. To enforce your rights to equal treatment, there is an expectation that some discrimination must already have occured. In other words, the disabled person must already have suffered some unequal treatment in order to bring the law, ex post, into operation and enforce their rights. (It’s also problematic to leave the disabled person as the one solely responsible for enforcing their rights to equal treatment, but, again, that’s a topic for another blog post).
Secondly, though, remember the earlier point about dominant rationalities or ways of thinking? Those dominant rationalities tend to align with neoclassical economic models and assumptions – this is how the law thinks.
Let’s take an example: the reasonable adjustment (or accommodation if you’re in the US or EU). Suppose you, a wheelchair user, are offered a job at a company based in an old building that is not accessible. You ask for a ramp or lift to be installed so that you can access the building. This is going to cost the business money. Accordingly, this will diminish the amount of surplus value that you can generate for the capitalist. We come to an efficiency calculation: what is reasonable or not is, thus, inter alia, determined by the employer’s calculus.
But, what about my rights, you say?
Well, ex post rights-based narratives aren’t much help here either. In the case of Cordell v The Foreign and Commonwealth Office [2011] Employment Appeal Tribunal UKEAT/0016/11/SM [36], the Tribunal heard of the plight of Mrs Cordell, who is profoundly deaf and who was working for the Foreign and Commonwealth Office. Mrs Cordell was due to be posted to Kazakhstan, but the costs of providing English-speaking lipspeaker support (estimated to be about £230,000 per year) were deemed unreasonable by her employer. Finding in favour of her employer, the Tribunal noted that, despite its sympathy to Mrs Cordell and the ‘great misfortune’ that her disability ‘may limit her opportunities to use her evident abilities in full’, ‘the law does not require [the employer] to compensate for that misfortunate at whatever cost’ [36].
The economic imperative, or underlying cost-benefit analysis, is not confined to the UK. At the European Court of Justice, AG Poiares Maduro in Coleman v Attridge Law [2008] ECJ C-303/06 emphasised that while equality might be the driving force, ‘the economic argument is not entirely absent’. There are myriad other examples of the law demurring to economic rationales.
In other words, what is reasonable, and what is not reasonable, comes down to, inter alia, an underlying cost-benefit analysis or consideration of efficiency. Ex post rights-based narratives rely on and reproduce the ‘natural’ market fallacy. The law demurs to economic imperatives, assuming that markets are natural phenomena and that the role of the law is to intervene and offer remedies to market failures and exclusions. In short, rights-based narratives do nothing to challenge the predistribution of legal rights and interests that assume standard workers; in fact, they affirm the approach. Employment contracts continue to assume non-impaired workers, and these assumptions continue to remain invisible. In short, ex post rights entrench market dominance.
But, there’s more. As Russell pointed out, by adjusting the definition of disability and the support available, states can manage the supply of workers to labour markets, regulating wages and inflation. Excluded from the labour market on cost grounds, disabled people comprise a pool of surplus labour that drives down wages, maximising profit for the capitalist. When more workers are needed and wages start to rise, some disabled people can be admitted to the market to increase competition for jobs and drive down wages once again. Disability, then, exercises a regulatory function within the market.
So far, this post has briefly explored disability and labour, but similar arguments can be made for property markets and debt markets. Disabled people continue to be underrepresented in both labour and property markets, and overrepresented in debt markets despite multiple sources of rights to equality. An Ability Capitalism lens can both explain and challenge this, and future posts will explore the alternative, ex ante pathways to social and economic inclusion that the theory suggests.
For now, I’ll leave a link to a longer version of this, published in the Industrial Law Journal.
References:
Lang, A. (2017) ‘Market Anti-naturalisms’, in Searching for Contemporary Legal Thought, J Desautels-Stein & T Christopher (eds),. Cambridge University Press, pp. 312–329.
Pistor, K. (2019) The Code of Capital: How the Law Creates Wealth and Inequality. New Jersey: Princeton University Press.
Polanyi, K. (1944) The Great Transformation: The Political and Economic Origins of Our Time. 2nd edition. Princeton, N.J.: Beacon Press.
Russell, M. (2001) ‘Disablement, Oppression, and the Political Economy’, Journal of Disability Policy Studies, 12(2), pp. 87–95.
Somers, M. (2022) ‘Legal Predistribution, Market Justice, and Dedemocratization: Polanyi and Piketty on Law and Political Economy’, Journal of Law and Political Economy, 3(2). Available at: https://doi.org/10.5070/LP63259631.
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