Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy
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AbstractThroughout the last century, the modem welfare state has been widely considered a major source of rescue and relief for people with disabilities. By providing mechanisms of cure and care, so the common view goes, the welfare state has improved the social conditions of disabled people, rescuing them from a life of starvation and severe destitution. In this view, welfare provides a refuge, while the real responsibility for the persistent poverty of disabled people lies primarily with the structure of the market economy, with the existence of negative social attitudes, and with disability's "objective" and inherent limitations. In this Article, I challenge this view, arguing that although welfare has indeed provided some relief to people with disabilities, welfare laws and policies have also had a significant role in developing, furthering, and reinforcing the power hierarchies to which people with disabilities are subjected. Through an investigation of Israeli disability policy, I show how hierarchies of welfare benefits reflect national values and collective imageries but at the same time reinforce and re-constitute those values and modes of imagination. Although the particularities and contexts of these hierarchies differ from one country to another, the result, I contend, is the same: those at the top, usually disabled veterans and disabled workers, enjoy better compensation or social insurance schemes, but in fact suffer from similar patterns of ableism and power as other disabled persons, and these patterns eventually render them equally inferior to and of a lesser value than the non-disabled. This Article uses a critical perspective that I term Disability Legal Studies (DLS) in order to emphasize its commitment to the field of critical legal theory and its close association with disability studies. Disability studies, a relatively new academic field, investigates issues such as the social construction of disability, ableism and the power structure that supports and enhances the privileged status and conditions of non-disabled persons in relation to disabled persons, the genealogy of social categories such as normalcy, and the politics of bodily variations.2 The basic approach that all disability studies scholars share is that disability is not an inherent, immutable trait located in the disabled person, but a result of socio-cultural dynamics that occur in interactions between society and people with disabilities. Although disability studies' critique is not altogether new to some legal scholars, it has not yet gained adequate recognition in legal discourse. I maintain that the time has come to identify, introduce, and label the field of DLS, bring it to light, attend to its premises, and incorporate its lessons into legal theory and practice. I further suggest that attending to DLS would bring a shift in writing on disability and the law from a focus on doctrinal analysis or policy advocacy to a research regarding the constitutive role of law in the production of disability.