Disability rights, social rights, and freedom
| Published date | 01 February 2016 |
| DOI | 10.1177/1755088215613627 |
| Date | 01 February 2016 |
| Author | Nancy J Hirschmann |
Journal of International Political Theory
2016, Vol. 12(1) 42 –57
© The Author(s) 2015
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DOI: 10.1177/1755088215613627
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Disability rights, social
rights, and freedom
Nancy J Hirschmann
The University of Pennsylvania, USA
Abstract
In this essay, I seek to problematize the notion of rights as they have often been applied
to persons with disabilities, and particularly in the framework of “social rights.” Although
social rights have been important in articulating demands by and for disabled persons,
they also have fallen prey to a problem with “rights discourse” more generally, which
is that they are thought of in terms of justice rather than freedom. Such a framing has
led to inadequate implementation of the concept of rights to disabled persons and has
unforeseen consequences, including the ways in which the Americans with Disabilities
Act and other disability rights have been conceived along terms of US “welfare reform”
rather than those of civil rights.
Keywords
ADA, disability, freedom, rights, social rights, welfare
In this essay, I seek to problematize the notion of rights as they have often been applied
to persons with disabilities. My central claim is that a major problem with “rights dis-
course” from a disability perspective is that it is often framed by a philosophical and ethi-
cal concern with justice. Such a framing has led to inadequate implementation of the
concept of rights to disabled persons. Instead, I argue that rethinking rights from the
perspective of freedom will produce a more robust implementation of the ideal in policy
and practice. My focus here is specifically on the problems raised by situating disability
rights in the framework of “social rights,” although I believe that my critique of justice
extends beyond that framework.1
Disability rights is not a new direction in rights discourse per se; it has been around
since the latter half of the twentieth century when disability activists started agitating for
disability rights. In the United States,2 Social Security Disability Insurance (SSDI) was
Corresponding author:
Nancy J Hirschmann, Department of Political Science, The University of Pennsylvania, Stiteler Hall, 208 S.
37th Street, Philadelphia, PA 19104, USA.
Email: njh@sas.upenn.edu
613627IPT0010.1177/1755088215613627Journal of International Political TheoryHirschmann
research-article2015
Article
Hirschmann 43
enacted in 1956, which enables workers who develop disabilities making them unable to
work to collect benefits, much like Social Security (SS). This was followed by
Supplemental Security Insurance (SSI), which was passed in 1969 as part of Richard
Nixon’s expansion of welfare policies in the United States, which disabled people who
are unable to work are eligible for (tenBroek, 1966: 844). Then, starting out as an amend-
ment to the Vocational Rehabilitation Act, which was
to provide the physically and mentally disabled persons of this Nation an improved and
expanded program of services which will result in greater opportunities for them to more fully
enter into the life of our country as active participating citizens (tenBroek, 1966: 849)
the renamed Rehabilitation Act of 1973 mandated response to the needs of individuals
with severe disabilities (Department of Human Services of the State of Michigan, 2014;
see also Berkowitz 1987). In 1975, the Education of Handicapped Children Act was
passed, which provided public educational access for disabled children, but was sup-
planted by the Individuals with Disabilities Education Act (IDEA), which mandated the
inclusion of disabled children in public schools. That same year (1990), the Americans
with Disabilities Act (ADA) passed, providing rights against employment discrimination
for disabled persons; after frustrating repeated court interpretation of the act, including
by the Supreme Court, in 2009 Congress passed the Americans with Disabilities Act
Amendment Act (ADAAA), which has clarified the intention of the original act and
strengthened employment rights for disabled persons.
I offer this overview of US-specific policies because I will draw on them as examples
to illustrate my theoretical argument. But internationally, disability did become a “new
direction in human rights” when the United Nations Conventions on the Rights of
Persons with Disabilities (UNCRPD) moved disability rights onto the human rights stage
for the twenty-first century (United Nations, 2006). Although many countries have rati-
fied this convention, the United States has not (Steinhauer, 2012).
But the reasoning for not doing so—that the convention would put the United Nations
in a position to overturn disability laws in various specific states, as well as “infringe on
American sovereignty” more generally—highlights a problem with rights discourse
more broadly: namely, its philosophical foundations. For what the ADAAA highlighted
was that up to that point, and indeed still today under many disability policies in the
United States and United Kingdom in particular, disability rights seemed to have a dif-
ferent standing than other kinds of human rights. I believe that this is in part because, at
least in the Anglo-American context, these rights are located in, and motivated by, a
concern for justice when in fact they should be motivated by a concern for freedom. In
this essay, I suggest that ethical thinking about justice works against disability rights and
undercuts them; it is part of the reason why the rights on paper for disabled persons end
up in practice being so difficult to access and unevenly applied. But they also reflect a
tension within the idea of “social rights” in which disability is often couched. I argue that
conceptualizing disability rights in terms of social rights is problematic and results in
their being undermined.
My focus in this essay is the United States primarily, because that is where this dis-
course is particularly troubling. In a country that claims to provide among the strongest
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