Ability Capitalism, or law’s constitutive role in market constructions of disability, is a new theory that explores how disability is produced under capitalism. I’ve added a separate site page setting out some of the core concepts of the theory, and while I’ll include a brief recap here, I want to explore some of the applications of the theory and my plans to develop it further.
What is Ability Capitalism?
Ability Capitalism unpicks the complex and nuanced ways in which disability has emerged as a core concept or rationality that is central to the effective and efficient function of markets. The proposition that markets disable is not new, and there’s an emerging body of research in the political economy of disability exploring this. What is lacking, so far, is a nuanced account of the constitutive role of law in commodifying and coding assets (Pistor, 2019), and how the tacit and invisible assumptions in these legal technologies set the foundations for market expectations of (and preferences for) workers and consumers with ‘standard’ bodies and minds (Russell, 2001).
As such, Ability Capitalism brings together Law and Political Economy insights with an Economic Sociology of Law lens to understand how the law commodifies assets to unlock their latent value – be this labour, property, or money. These are the three core areas that the theory is currently exploring, speaking to the seemingly intractable disability employment and pay gaps, homeownership and private rentals gaps, and the disability debt gaps and price tag. In short, disabled people* continue to be underrepresented in labour and property markets and overrepresented in debt markets, and despite myriad rights to equality, these gaps persist. Why?
Law’s constitutive role in markets
Most mainstream theories in both law and economics assume that markets are ‘natural’ phenomena; that they emerge spontaneously and self-regulate, structuring social relationships according to their own internal logics. This leads to two propositions in relation to the role of the law. Firstly, that law should generally get out of the way and leave markets as free as possible from intervention or regulation. Secondly, that where market failures and exclusions arise, the law should generally step in ex post, or after the discrimination has occurred, to offer remedies (although there is an anticipatory duty to make reasonable adjustments).
However, far from being ‘natural’ phenomena, markets are in fact specifically legal constructs (Lang, 2017). Bartering, trading, and so on, cannot emerge without some predistribution of legal rights and interests (Somers, 2022). In other words, an allocation of rights to ownership, for example, is necessary before anything can be bought and sold. But this means that, in predistributing rights and interests, the law plays a significant role in shaping market actor preferences. If you own a lot, you are likely to have different interests and motivations upon entering a market than if you own very little.
However, this legal predistribution is typically invisible. Let’s take an example.
Legal Predistribution: an example
Say you want to sell your labour. Labour is commodified (that is, transformed into something that can be bought and sold) by the legal concept of the ‘standard employment relationship’, usually seen in the form of the standard employment contract (Fudge, 2017).
Employment contracts typically set out, among other things, where and when work tasks will be performed, the remuneration offered, and how the contract can be terminated. Employment contracts, however, usually do not overtly specify that the worker can get themselves up and dressed independently, that they can get to the place of work on time and navigate an exclusionary built environment, or that the worker can get through the day without needing rest breaks for medication, etc. In other words, there are myriad unspoken assumptions that make the standard employment contract possible, but which disadvantage those with ‘non-standard’ bodies and minds.
As these assumptions are invisible, they are not typically available to either negotiation or legal challenge. Yet they perpetuate disadvantage, contributing to the disability employment and pay gaps.
Similar examples exist throughout labour, property, and debt markets, and I will be exploring some of these in future blog posts.
So, what does an Ability Capitalism lens propose?
For the example above, an Ability Capitalism lens would suggest that, to fully understand the ways in which the law sets the foundations for market constructions of disability, we need to make visible and tangible the ways in which disadvantage is coded into the system.
In the case of the standard employment relationship, that might entail a detailed mapping of the assumptions and preferences arising from processes of legal predistribution. In short, how, where, when and why do labour market preferences for ‘standard’ workers manifest?
Then, drawing on a legal design methodology such as visual contracts, how can we make these assumptions visible so that they are available to negotiation and challenge?
One upshot of combining a historical materialist account of disability with insights from law’s constitutive role is that enhanced social care provision and support that reduces the costs of the reproduction of disabled labour might offer one pathway to challenge the disability employment gap.
What’s next?
I’ve explored the potential of Ability Capitalism in the context of the labour market here, and am extending this analysis to property and capital/debt markets (aligning with Karl Polanyi’s three fictitious commodities). However, it is likely that there are many more examples of the ways in which law plays a constitutive role in market constructions of disability.
And, once constructed, disability then plays a crucial regulatory role in the management of markets, emerging as a technology of governance not only for those classified as disabled/non-disabled, but acting as a tool to manage supply and demand, market function, and (indirectly), inflation and the wider economy.
For these reasons, while an Ability Capitalism lens suggests that equality rights are necessary, it proposes that they are not sufficient to realise full substantive equality or inclusion. As such, we need combined approaches that include rights, but which also explore decommodification (or, more accurately, recommodification) strategies that address ex ante distributions of rights and interests.
Stay tuned for further explorations.
*I use language throughout that aligns with the British social model of disability; that is, an understanding that people are disabled by inadequate built or social environments rather than any underlying physical, mental, or energy impairment. For more, see UPIAS.
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