Liat Ben-Moshe’s Decarcerating Disability: Deinstitutionalization and Prison Abolition, and Linda Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion offer distinct critical perspectives on the law and by extension, the State. This essay offers some reflections on the implications for future research in Critical Disability Studies on the State and its relation to disability. Here it is argued that there is scope for a widened analysis of, firstly, what exactly the State is from the perspective of disability; secondly, the distinct role of the State in participating in the construction of disability as a form of social oppression; and finally, the tactical problem posed by the State, as both agent of violence against people with disability and a potential vehicle for structural change.
Just over 30 years ago Catharine A. MacKinnon
put forward the proposition that “feminism has no theory of the state” (1989:
157). In this context MacKinnon posed a problem at the level of praxis,
relating to the strategic relationship between feminism and the law:
Feminism has not confronted, on its own terms,
the relation between the state and society within a theory of social
determination specific to sex. As a result, it lacks a jurisprudence, that is,
a theory of the substance of law, its relation to society, and the relationship
between the two. Such a theory would comprehend how law works as a form of state
power in a social context in which power is gendered. It would answer the
questions: What is state power? Where, socially, does it come from? How do
women encounter it? What is the law for women? How does law work to legitimate
the state, male power, itself? Can law do anything for women? Can it do
anything about women’s status? Does how the law is used matter? (MacKinnon
1989: 159)
There is of course much we could say about
MacKinnon’s perspective in this classic text. We could certainly ask which feminism Mackinnon seeks to
represent, and whether all feminist traditions lacked a theory of the State.
For example, work in the Black feminist tradition, such as Angela Davis’ 1981
text Women, Race and Class, do indeed
advance distinct perspectives on the State, highlighting the non-neutrality of
the state, including the place of “racism in the judicial system” and “the
government’s posture of studied neglect toward Black people and other people of
color” (Davis, 1981: 201). Nevertheless, despite this
limitation, MacKinnon’s challenge remains broadly valuable for thinking about
social movements and their relation to the State. The text points to the
pressing need for movements to theorise the political terrain as part of their
praxis; and in the case of the State, both analyse its complicity in violence
and oppression, and simultaneously strategise in
relation to the opportunities and limits presented by the State as an agent of
change.
Reading both Liat
Ben-Moshe’s Decarcerating Disability, and Linda Steele’s Disability, Criminal Justice
and Law, I found myself remembering the questions asked within MacKinnon’s
text. To an extent, my own view would be that critical disability studies has been in need of more work that critically interrogates the
relationship between the State and people with disability: to understand how
the State shapes the political terrain of disability, and simultaneously
determines in what way (if at all) the State has a role in addressing injustice
experienced by people with disability
Ben-Moshe’s book takes carcerality as a focus, highlighting not only why the
history of disability institutionalisation and de-institutionalisation should
be of interest to prison abolition movements; but further arguing that radical
demands made by people with disability to end institutionalisation are also examples of decarceration
movements. The involvement of the State in the violence of incarceration – in a
range of spheres – creates tactical questions for disability movements. In this
context, Ben-Moshe explores the limitations of the legal avenues for disability
movements, arguing that “litigation and rights discourse draw on the state in
fixing social ills of its own creation” (Ben-Moshe, 2020: 7.41). These concerns overtly shape Ben-Moshe’s
suggested political approach, which downplays piecemeal reform in favour of abolition as a political rationality and
tactic (see Ben-Moshe, 2020: 3.1-24).
Steele explores court diversion as a
modality of State violence used against people with disability. As Steele
highlights, diversion is often understood as a legal pathway which ‘protects’
people with disability from forms of carceral violence in the criminal justice
system. However, diversion opens people with disability to alternative forms of
violence; in this sense, for Steele, diversion must be understood as a strategy
of legal violence which redirects people with disability towards “coercive
intervention through disability and mental health service” (Steele, 2020:1).
Like Ben-Moshe’s text, Steele’s case study of court diversion reveals a number
of different dimensions of State violence which are of importance to critical
disability studies. Firstly, relevant to contexts such as Australia, Canada and
the United States, Steele observes that the State is profoundly shaped by
imperialism and settler colonialism, which frames both the violence that is
experienced by people with disability and the tactics which are possible for
disability movements (Steele, 2020: 16). Secondly, the State is intensely
involved in forms of carcerality as a primary form of
legal violence. In unison with Ben-Moshe, Steele’s analysis of the carceral
moves beyond the sphere of the formal criminal justice system, to include, for
example, institutional forms of disability support. Thirdly, the State seeks to
legitimise its own authority. Steele’s case study of court diversion highlights
that in discursively framing the capacity for the law to appear ‘compassionate’
in protecting people from its own violence in the criminal justice system, the
State effectively legitimates its own force, and simultaneously denies its own
role as an agent of violence (Steele 2020: 18; see also 109).
Ben-Moshe and Steele’s texts are to an
extent complementary in their analyses of law’s violence and its relationship
to people with disability, offering case studies which, when placed together,
provide the reader a wide and comprehensive picture. There is a strong united
theme in both books: both texts highlight the non-neutrality of the State with
respect to people with disability. As a result, both Ben-Moshe and Steele are
suspicious of the capacity of the law to achieve positive change, and both
texts highlight the way in which even well intentioned “legal actors might be
complicit in disability injustice” (Steele 2020, 14). Ben-Moshe, for example,
draws critical attention to the way some feminist demands for policing and
criminalisation in response to violence have led to “the build
up of the prison nation” (Ben-Moshe 2020, 3.5; see also Richie 2012, 3).
Thus, the abolition approach advocated by Ben-Moshe calls for a “lens rooted in
black radical tradition that critiques the state as violent and not the arena
to seek remediation to injustice” (Ben-Moshe 2020, 3.6). Steele similarly
expresses repeated concerns about the capacity of domestic and international
law to provide justice to people with disability; for example, with reference
to the often lauded United Nations Convention on the Rights of Persons with
Disabilities (CRPD), Steele suggests the need for a “careful and strategic”
approach, warning that “an unreflective, instrumental and technical use of the
CRPD risks further legitimating and embedding carceral control and debilitation
of criminalised disabled people” (Steele 2020: 214).
Both Ben-Moshe and Steele’s important
new books have raised some further questions for me about the relationship
between the State and people with disability. These are both questions of
analysis and of praxis. Firstly, from the standpoint of disability, what is the
State? Ben-Moshe and Steele lean strongly on a Foucauldian analysis of power, carcerality and the law. But perhaps there are limits to
how far such an analysis might be able to interrogate State power. Foucault
famously distanced himself from a theory of power that revolved around the
politics of the State (Foucault 1980: 121) and sometimes treated it as a
somewhat ‘episodic’ phenomena with the terrain of power: “the state is only an
episode in government, and it is not government that is an instrument of the
state” (Foucault 2007: 248; see also Tremain 2006:
3-4 and 10-11). In this respect, Foucault’s analysis of the State is somewhat –
for me at least – under-developed. And this analysis misses that the State,
from the standpoint of disability, has a potentially radically different
meaning. What does critical disability studies have to say about the meaning of
the State, the law and government? For example, how was the evolution of the
Hobbesian state, and the monopoly of violence that is associated with it (see
Hobbes 1994), interconnected with the right of the State to use systematic
violence against people with disability to securitise, normalise and
‘immunise’, including through institutional torture and ill-treatment (see Wadiwel 2017; Puar 2017)? Further, how was the evolution of
the State also connected with contemporary conceptions of the ‘rule the law’,
and rights to security and protection which are central to contemporary human
rights claims made by disability movements? To what extent can we separate
contemporary claims for equality and security from the understandings of State
power which have evolved around its monopoly over violence?
Secondly, and related to the above,
how is the genealogy of the State intertwined with the emergence of
‘impairment’ and ‘disability’ as categories? There are different trajectories
to explore here. For example, relevant to colonial history of contemporary
state power, Nirmala Erevelles argues that racial
slavery depended upon the production of ‘black disabled bodies’ as commodities
for exchange (Erevelles 2014: 86). This ‘value
production’ underpinned the development of global capitalism. Mitchell and
Snyder track the internationalisation of eugenics, and the ways in which these
logics infiltrated the governance of the State (Mitchell and Snyder 2003).
Deborah Stone, in The Disabled State,
explores the way the administration of welfare systems gave rise to categories
of disability, which in turn produced a social and political conception of
impairment and disability (Stone 1984). These different accounts offer
histories on how the racial and bureaucratic state interacted with disability
as a form of social oppression, and intersected with other forms of structural
violence, such as race and sexuality.
Finally, there is the question of
tactics. As above, both Ben-Moshe and Steele express caution about the law and
its capacity to be utilised by disability movements as an agent of change.
However, there remains, at least in my view, some tricky issues to navigate at
the level of strategy. One problem relates to how disability movements might
respond to the problem of violence where the State is both cause and cure. In
many contexts, in relation to both institutional and interpersonal violence,
the State has completely abandoned any responsibility for protecting most
people with disability and is often directly complicit with the exercise of
force. This means that forms of violence – often State violence – are
routinised and ‘naturalised’ in the lives of many people with disability. What
should the response of disability movements to this problem be? How is it
possible to democratise a right to freedom from violence, while at the same time
avoid the problems raised by Ben-Moshe and Steele of playing into a politics
which simply authorises and extends the Hobbesian State? Can we do without the
Hobbesian state? What is its alternative?
In a different register, I wonder
broadly about the role of the State in protecting people with disability from
the encroachment of capitalism into almost every aspect of social relations.
Traditional social policy approaches have used the State, and its ability to
levy taxes and engage in fiscal expenditure, as a way to ameliorate at least
part of the violence of the capitalist economic system through forms of
‘decommodification’ (Esping-Andersen 2012: 63-95). In
many parts of the world, social policy interventions, such as income transfers
and publicly funded social support, while certainly not beyond criticism,
present as important opportunities to address the structural dimensions of
ableism. To an extent, and unless radical disability movements are actively
calling for full socialisation of the economy – an option I am not dismissing
here – the tactical utilisation of State intervention in economies to create
the conditions for social protection and support seems to remain an important
strategy to address the structural dimensions of ableism.
In all of the above, there is an
ongoing tension. On one hand, today’s colonial capitalist State, and all its
violence, has imposed itself into almost all social, political, and economic
relations; as a result, for many people on the planet, including people with
disability, everyday life is experienced through the lens of State violence and
deprivation which forms part of the fabric of ableism as a structural relation.
On the other hand, the State often appears as a ‘rational and realistic’
solution when social movements consider how to seek justice: the State, as
Ben-Moshe and Steele observe in their two books, often presents itself as the
remedy, even if it is cause and source of injury. Part of the challenge here is
the pervasiveness of the State; our social relations have, it would seem at
least, been captured by it. Gayatri Chakravorty
Spivak suggested a need for a “persistent critique of what one cannot not want”
to describe the approach challenging institutional forms of power and discourse
that we find ourselves surrounded by and which dominate our imaginations
(Danius, Jonsson and Spivak, 1993: 20). Perhaps critical disability studies faces a similar dilemma in its theorisation of the State.
How might it be possible to desire something other than what everyone says we
cannot not want?
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