This article is not intended as an extended lecture on law and the possibilities of law. We know that law is not a panacea and that recourse to law often reveals failure and not success. But sometimes—perhaps often—litigation is the only open avenue of recourse. It is incumbent on all of us—lawyers included—to work toward a situation where the conflict that is inherent in litigation is reserved to handle genuinely intractable matters of principle rather than to take over as the motor force of policy and reform. Better a system that reacts naturally to principle than to have principle foisted on a reluctant system.
Our republic was born on the promise of justice for all and not just for some. Justice is, of course, primarily a matter of principle. It should be a reflex built into any political system. But of course justice also depends on politics—on number, votes, arguments, bargains, the visibility or invisibility of the person before the apparatus. On both of these scores, disability issues appear severely disadvantaged. Why?
Justice as principle
To me, there are three problems at the level of justice as principle. First, there is the inevitable gap between a state’s ‘myth system’ and its ‘operation system’. The myth system tells us that the legitimacy of our political system depends on the extent to which it honours the individual, that no person is insignificant and that all are created equal. Yet every culture seems to carve out exceptions or no-go areas where the myth does not hold true and is not expected to hold true. The phenomenon of ‘invisible citizenship’ has been used in the debate about the status of persons with disabilities in society. Every culture (Ireland included) faces challenges in opening up the system of freedom for all groups, including those who did not even appear on the radar screen. The challenge is to honestly acknowledge the gap between the myth system and the reality, and to work towards closing that gap. This requires an attitude change, from top to bottom.
Secondly, even when principles apply, they seem to apply differently in the context of disability. The right to liberty is one of the most treasured of rights in a liberal democracy. Yet the myriad of substantive and procedural rights available to a suspect in the criminal process greatly outweighs the comparable protections in the civil commitment field. The system appears to be saying that the normal legal protections are only for normal people. In this there is an implicit segregation of citizens—some with first-class status and others with no class status. Again, if true, this is not peculiar to Ireland. Indeed, Ireland is in the midst of an interesting reform process in the whole civil commitment field.
It is possible, and largely desirable, to see the intellectual disability and mental disability issue as an equality issue because it goes to the equal enjoyment of the benefits of the rule of law. The issue of equality provides the bridge between mental and physical disability and other disadvantaged groups in our society.
Thirdly, the principles embedded in our legal order are of little use when our Western system does not place a high value on distributive justice. Strange isn’t it, that the very thing disability groups prize most is conspicuous by its absence in our system. What is required is not only elaborate protections against entry into mental hospital, but a substantive, reviewable and ultimately enforceable right to care and treatment and appropriate services. Our forefathers pledged themselves in the first Dáil to abolish ‘the present odious, degrading and foreign Poor Law system, substituting therefor a sympathetic native scheme for the care of the nation’s infirm’ (Democratic Programme of the First Dail, 1919). Regrettably their egalitarian principles were not strongly enshrined in either the Free State Constitution or the Constitution of 1937. Our system pronounces eloquently and then acts conservatively. Even the recent 1997 report of the Constitution Review Group argued against the inclusion of economic, social and cultural rights in the Constitution. The net result is that the achievement of these rights is purely a matter of pressure politics and not of principle.
Justice as politics
The democratic marketplace is a tumultuous place. Ignorant armies do clash by night and interest groups vie for advantage. There is nothing inherently wrong in this and, by and large, it serves us well. But there are problems here which complicate the issue of mental health and learning disability.
First there is the standing danger that the ‘public interest’ might simply be defined as the lowest common denominator—the sum of competing vectors. Principle can be seen as something to be bargained on or for—especially if it is not anchored strongly in the legal order. Right depends on might.
Secondly, the political marketplace tends to favour those with most voice—or whose issues connect with either the passing priorities of the day or with the permanent priority of maintaining the economic viability of the nation. But what of those who lack voice or whose voice is feeble, or those whose issues do not connect with the permanent priority of economic viability or with other passing policy priorities? They lack purchase power in the political market. There is little supply to meet their demands. There is, in a sense, no obvious corrective to that market failure, unless one views the courts as that corrective. (Interestingly, the finding that a group is ‘discrete and insular’ sometimes motivates the US courts to be more active in protecting their rights—a similar judicial doctrine is needed here.)
Intellectual disability is no different from other socially excluded and voiceless groups—although some of the people we represent are literally voiceless. No mechanism exists to amplify that voice, although the new Mental Health Commission may yet perform a very valuable role in this regard. It seems to be difficult for a culture to fully respect and welcome human difference and the diversity of the human family. To a certain extent this voicelessness helps to cement the tendency of every culture to construct a common space which excludes others. The loss is everyone’s and is not morally sustainable in a republic worthy of the title.
Relinking justice with politics
If the realm of principle offers much but delivers little, and the world of politics seems generally indifferent to persons with disabilities—then what? We need to bring principle back into politics. The purest expression of these principles is often found in international and European law and policy. Ireland is now firmly a part of the international community. We have affirmed our commitment to friendly cooperation between nations, as founded on international justice and morality (Article 29.1 of the Irish Constitution). We have signed up to a web of international legal obligations, many of which have either direct or indirect effect in the field of disability. International law may not provide clear answers, but at least it tends to provide a more neutral language within which to conduct meaningful dialogue about change.
Some factors have traditionally inhibited us from taking full advantage of this cosmopolitan legal order. First of all there seems to be a historical disconnect between what we sign up to internationally and how or whether that is translated into domestic law and policy. Although this disconnect is present in nearly every country, I am confident it can be overcome. There are strong signs that it is being diminished. We are about to incorporate into Irish law the European Convention on Human Rights. Leaving aside how this is being done and what its potential effects might be, what is important is the overall trend whereby Irish law and policy are being brought into alignment with international law.
Secondly we in civil society seem unprepared to capitalise on this new alignment. If we make an appeal to an international treaty body—as was done some two or three years ago on behalf of persons with mental disabilities—we have to be prepared to follow through and to put a strategy in place to exploit the results. It is not enough to win hearts and minds in Strasbourg or Geneva—we have to find a way to exploit the authoritative findings of world bodies in the domestic political arena here at home. This calls for new capacities in advocacy groups. It calls for the capacity to argue about principle, not in an abstract sense but from international law and policy—in the Irish political arena.
Toward a new kind of politics
There is a need to connect principle with politics in another sense. Many interest groups are making the paradigm shift from naked self-interest to rights. This is partly because rights-talk comprises the new argot of our times (a bad reason to switch), but also because they sense that an appeal to justice provides a more neutral way of putting forward the best possible case for change.
Alliances should be forged among groups that similarly agitate for justice. Many people in our prisons (indeed in most prison systems) have intellectual or mental disabilities. This suggests the need for alliances with prisoners’ rights organisations. We need to get away from seeing categories of persons with disabilities as competitors for scarce resources and to begin to work together in questioning why those resources are scarce, and to work out a more equitable form of distribution. The issues of principle are the same for all those who are excluded to the fringes of our society.
We must join with other general human rights organisations in common cause. New human rights institutions have been established on both sides of the border in Ireland. In a way they provide the institutional response to the clamour of justice and rationality. Their powers are considerable and include advising the respective governments on draft legislation, holding enquiries, supporting litigation and bringing cases in their own right. Our new politics requires a well-organised strategy on how best to utilise these new bodies, which complement others which already follow a human rights agenda. The Law Reform Commission, known in the past as being concerned mainly with the review of technocratic issues, has undergone a paradigm shift recently. Its very impressive new programme for law reform (2000–2007) now includes a heading on vulnerable people and the law. This specifically includes a review of the law ‘affecting persons with … mental and learning disabilities, including issues of capacity, guardianship and the right to marry.’
These issues are indeed important and we need to engage with the Law Reform Commission and similar bodies which have the capacity to add to the impetus for change. They are hungry for our input.
Abstract talk about justice can seem a long way from a daily struggle for better services, better legislation and better outcomes for persons with disability and their carers. The task can appear beyond us after years of arguing and re-arguing the case, and perhaps there is a degree of cynicism about our political system and its capacity to respond. There may also be a healthy scepticism toward fancy ideas and woolly-jumpered or woolly-minded academics. As a father of a child with a disability, I share that scepticism.
However, we must raise our sights to the bigger picture which is connected to justice. This can enable us to make arguments that have more resonance in the political system. Systems tend to have a language and value-code of their own. One has to crack that code in order to use it. Secondly, it can enable us to forge more meaningful alliances with a broad spectrum of groups. In numbers there is strength—a critical mass that the system cannot ignore. This is also the right thing to do, because many other groups are engaged in the very same struggle.