Spatialising Disability Legal Studies

In this contribution to Bulletin 26, Beverley Clough explores how disability legal studies might benefit from a more thorough theoretical engagement with spatial imaginaries.

There has been increasing engagement with spatial approaches across the social sciences and humanities. At the core of this is the recognition of how space is organised; how this impacts on subjectivity and experience; how spatial interactions create meaning; and how meaning is assigned, inscribed upon and produced through spatial imaginaries. The focus is not simply on the materiality of spatial organisation, but on the (material-discursive) processes through which the boundaries around particular spaces and spatial relations are drawn and reproduced. A spatial approach to disability is now well represented in the disability studies literature.[1] Similarly, law and legal studies have engaged productively with spatial approaches, particularly through legal geography.[2] Through this piece, I want to bring these spatial understandings of law and disability into conversation, to explore what productive insights are gained from doing so for thinking through disability justice.

Spatial approaches to disability studies have enabled a critical, complex interrogation of the interaction between individuals and their social world, and the construction of disability within this. They have responded to and built upon critiques of the social model of disability that have been bubbling away in the literature. The social model of disability—the idea that it is societal barriers, rather than impairments, that cause disability—has been heavily influential in disability activism and scholarship. It has, importantly, had an enduring influence in disability politics and law, being central to a range of arguments for recognition, rights and legal change. At the same time, and as with any central theory in a given field, it has not been without criticism.[3]

It has been recognised for some time now by some critical disability scholars that rethinking ontology through theories of vulnerability, new materialisms and post-humanism can disrupt current entrenched ideas of subjectivity as well as moving us beyond a strictly polarised view of materialism and more discursive or constructivist approaches.[4] Scholars such as Erevelles were particularly keen to challenge the humanist norm that the social model may be seen as reinforcing through the focus on barrier removal.[5] The subject of the social model, or the norm to be actualised, was critiqued as reinforcing liberal ideals such as autonomy, self-determination, rationality and independence. Such ideals are seen as problematic in creating and maintaining a disabled ‘other’, with Campbell frequently drawing attention to the ableism which is foundational to such liberal approaches and which has the effect of excluding difference from the very outset.[6] In essence, if the social model is simply focused on removing barriers to achieve this (ableist) norm then this norm becomes reinforced without question of its foundation presuppositions. As Shakespeare suggested in his earlier work, “perhaps the maintenance of a non-disabled identity…is a more useful problem with which to be concerned; rather than interrogating the other, let us deconstruct the normality-which-is-to-be-assumed”.[7] The humanist logics thus structuring the social model have gradually become seen by critical disability scholars as an important target for critique. Erevelles has questioned this tendency, asking “[w]hat happens when the very essence of the liberal humanist self is necessarily predicated on the construction of the disabled Other as the embodiment of inalienable difference?”[8] Spatial approaches have been instrumental in exploring the construction and (re)production of boundaries that entrench difference and the problematic norms that shape these, avoiding a static and linear account of disability and instead focusing on the processes and relations creating it.

Hall and Wilton, writing from a critical geography perspective, have drawn on new materialist theorists such as Barad and Braidotti, and the notion of assemblage, to advance an understanding of “complex and emergent geographies of disability, but also to unsettle broader assumptions about the nature of the ‘able-body’”.[9] Unseating the norm of the autonomous, rational, individual subject and rethinking subjectivity through and with impairment, interdependence, difference and relationality enables us to then see the “sheer diversity of embodied experiences that overwhelm any binary opposition between a normative ‘able-body’ and its disabled other”.[10] Difference is seen as an emergent and contingent state which is implicated in various webs of material and discursive relations. As such, differential embodied experiences are not erased or ignored—instead the question shifts to how such experiences and embodied forms come to matter.

Whilst there has been longstanding recognition of the need to bring disability studies and law into conversation[11] narrow understandings of law have impeded progress. Despite the important developments in critical disability studies, some of which have been outlined above, there has been surprisingly little engagement with law as a part of the assemblages which have otherwise warranted critical analysis. We see reflected in some of the disability studies debates the idea that law is a positivist phenomenon. For example, Oliver and Barnes in their later work advocated essentially for a turn away from law in a paper which argued that legislation and rights were being captured by certain powerful professions and interest groups.[12] Whilst this is undoubtedly true and resonates with a long standing argument against relying upon rights or law to solve issues of social justice, what is missing here is a more critical analysis of how law itself could be changed. Moreover, this betrays a view that law is something which can somehow be escaped in activism, a position which Lobel has critiqued in her argument that the legal and the social are not separate but instead permeate each other.[13] This turn away from law, as Munro suggests, still allows these power relations and norms to persist, albeit unchecked.[14] A static, ordered and positivist approach to law is taken without recognition of the ways in which law itself is a dynamic, ongoing process with shifting boundaries.

This is not necessarily a criticism of these scholars as it is an approach echoed across many fields, including in some more mainstream legal analysis. As Philippopolous-Mihalopolous suggests, “law presents itself as immaterial, abstract, universal, non-geographical. This is of course one of law’s greatest tricks”.[15] There is real scope for productive engagements between critical disability studies and socio-legal theorists in order to more carefully expose the intra-actions between legal processes and the problematic concepts which critical disability studies has grappled with and to challenge their given-ness. It is suggested here that law and legal processes occupy an important role within the spatial dynamics of disability: they help to define and solidify difference; they help to create, cement or dismantle roles and relations; and they define the boundaries of responsibility and appropriate response.

David Delaney has written about the importance of the spatial imaginary engaging not just with the material but also the social, discursive and performative aspects of space.[16] Indeed, the very distinction between the material and discursive here would be questioned. Delaney suggests the need to consider that “social space is continuously reproduced and transformed through how it is performed”[17] and that this encompasses the performative aspects of material-discursive spaces. It is crucial for socio-legal scholarship to rethink both the legal and the spatial. In terms of the spatial, this rethinking entails a concern with discursive organising and performance, but also “spatialisation of difference and the pragmatic effacement, denial or recalibration of difference”.[18] As well as reconceptualising space,

the legal must also be treated as consisting of and implicating the dynamic, reciprocal intertwinements of social imaginaries, with performative and material aspects of sociality…The legal is continuously performed, re-enacted. The legal is continuously and creatively done and redone. The legal is always happening.[19]

This provides a useful framework for challenging the static and ‘given’ boundaries of law. A recent attempt to fundamentally rethink law, and in turn to expose the processes of boundary formation in law, is evident in the work of Margaret Davies. In Law Unlimited, Davies seeks to ask the what, where, how and when of law and the who and why in order to ‘unlimit’ it—“to suspend the conceptual, doctrinal and institutional boundaries to imagine different modalities for understanding law”.[20] In doing so, she challenges the theoretical, political, doctrinal and geographical boundaries which are drawn, and which are perceived by both mainstream legal scholars and those ‘outside’ of this, as static and fixed. As she goes on to suggest, this vision sees law not as a static entity, but as a “material-social dialogue in process” whose “boundaries and limits do not work in isolation, but create a web of insides and outsides, together with all of the exclusory and identity-forming characteristics of such spaces”.[21] Through this reconceptualisation, then, we see a challenge to positivist ideas of law as a closed system or structure with predefined boundaries, and an effort to understand law instead as an ongoing process through which boundaries are created, reproduced and negotiated. The institutional relations, and particular domains of law including the public and the private, become seen as more porous, and subject to constant maintenance (and potential disruption). Law is seen as much more diffuse, with the ‘where?’ of law becoming more complex and as sited at a number of scales and locations including in the shaping of (as opposed to a reaction to) everyday interactions. Moreover, law becomes a more pluralistic force, not limited to law in the books or as practiced by legal professions, or even as various legal forces acting within a particular space, but as various, multiple, interacting forces having legal impacts. This important shift in approaches to law enabled by engaging with the spatial imaginary shifts attention to how meaning is produced in and through law, and how the boundaries of the legal subject, the state, institutions and society are drawn. One way in which this interaction is evident is in the structuring of disabled and non-disabled identity, or the creation of the ‘Other’. In mental capacity law, for example, this occurs through the designation of individuals as capacitous or incapacitous, with incapacity being inextricably linked to the existence of an impairment or disorder of the mind or brain. As I discuss in my book The Spaces of Mental Capacity Law,[22] this legal framework has lent legitimacy (and with it, perceived objectivity and political neutrality) to a system of ‘othering’ disabled people, positioning them as different to those who are rational and autonomous and embodying the liberal legal subject. Engaging with this interaction between law and the norms that critical disability studies scholarship has critiqued through a spatial lens helps to understand the processes through which these norms come to be entrenched and reproduced. This enables us to be attentive to how such space is performed, as well as to the “social spatialisation of difference and the pragmatic effacement, denial or recalibration of difference”.[23] Importantly, this spatialisation of difference has material and discursive effects which include the drawing of boundaries of state and institutional responsibility, of delineating the public/private, and bounding the self/other. Recognising their contingency and reliance upon a range of legal, political, societal and historical processes for affirmation opens up the space to reimagine alternative processes and to map out sites for change.

[1] See, for example, E. Hall and R. Wilton, ‘Towards a Relational Geography of Disability’, Progress in Human Geography 41, no. 6 (2016): 727–744; A. Power and R. Bartlett, ‘“I shouldn’t be living there because I am a sponger”: negotiating everyday geographies by people with learning disabilities’, Disability & Society 33, no. 4 (2018): 562–578.

[2] D. Delaney, Nomospheric Investigations: The Spatial, the Legal and the Pragmatics of World-making (Abingdon 2010: Routledge); N. Blomley, D. Delaney, and R. Ford (eds.), The Legal Geographies Reader: Law, Power, Space (Toronto, ON 2000: Wiley); I. Braverman, N. Blomley, D. Delaney, and A. Kedar (eds.), The Expanding Spaces of Law: A Timely Legal Geography (Stanford, CA 2004: Stanford Law Books); M. Valverde, ‘Jurisdiction and Scale: Legal “Technicalities” As Resources For Theory’, Social and Legal Studies 18, no. 2 (2009): 139–157; M. Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Abingdon 2015: Routledge).

[3] L. Crow, ‘Including All Our Lives: Renewing the Social Model of Disability’, in: C. Barnes and G. Mercer (eds.), Exploring the Divide: Illness and Disability (Leeds 1996: The Disability Press); T. Shakespeare and N. Watson, ‘The Social Model of Disability: An Outdated Ideology?’ Research in Social Science and Disability 2 (2002): 9–28; N. Erevelles, ‘Disability and the Dialectics of Difference’ Disability & Society 11, no. 4 (1996): 519–538.

[4] D. Goodley, R. Lawthom, and K. Runswick Cole, ‘Posthuman Disability Studies’, Subjectivity 7, no. 4 (2014): 342–361.

[5] Erevelles, ‘Disability and the Dialectics of Difference’.

[6] F.K. Campbell, Contours of Ableism: The Production of Disability and Abledness (Basingstoke 2009: Palgrave Macmillan).

[7] T. Shakespeare, ‘What is a Disabled Person?’, in: M. Jones and L. Basser Marks (eds.), Disability, Divers-Ability and Legal Change (The Hague 1999: Matinus Nijhoff): 25–34, 28.

[8] N. Erevelles, ‘Cognitive Disability, Race and the Politics of Citizenship’, Disability, Culture and Education 1, no. 1 (2002): 5–25, 11.

[9] Hall and Wilton, ‘Towards a Relational Geography of Disability’, 727.

[10] Ibid.,741.

[11] A. Lawson, ‘Disability Law as an Academic Discipline: Towards Cohesion and Mainstreaming?’, Journal of Law and Society 47, no. 4 (2020): 558–587; A. Kanter, ‘The Law: What’s Disability Studies Got to Do with It or An Introduction to Disability Legal Studies’, Columbia Human Rights Law Review, 42, no. 2 (2011): 403–479; S. Mor, ‘Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy’ Yale Journal of Law and the Humanities 18, no. 2 (2005): 63–137.

[12] M. Oliver and C. Barnes, ‘Disability politics and disability movement in Britain: Where did it all go wrong?’, Magazine of Greater Manchester Coalition of Disabled People (2006): 1–13.

[13] O. Lobel, ‘The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics’ Harvard Law Review 120, no. 4 (2007): 937–988.

[14] V. Munro, Law and Politics at the Perimeter: Re-evaluating Key Debates in Feminist Theory (Oxford 2007: Hart), 68.

[15] A. Philippopoulos-Mihalopoulos, ‘Critical Autopoiesis and the Materiality of Law’, International Journal of the Semiotics of Law 27 (2014): 389–418, 410.

[16] Delaney, Nomospheric Investigations, 17.

[17] Ibid.,15.

[18] Ibid.,18.

[19] Ibid.,19.

[20] M. Davies, Law Unlimited (Abingdon 2014: Routledge), i.

[21] Ibid., 2,137.

[22] B. Clough, The Spaces of Mental Capacity Law (Abingdon 2021: Routledge).

[23] Delaney, Nomospheric Investigations, 18.

Beverley Clough

Beverley Clough is currently Associate Professor in Law and Social Justice at the University of Leeds. In January 2023, she will be joining the Manchester Law School at Manchester Metropolitan University as Professor of Law.