| Summary: | Disabled people constitute a historically disadvantaged and marginalized group that
experiences discrimination in the workplace among other socio-economic sectors. In
this thesis, my focus is on searching for an inclusive type of equality that could
inform the interpretation and application the equality clause in the South African
Constitution. My aim is neither to arrive at a mathematically constructed abstract
type of equality, nor to produce a blueprint of equality that puts finality on the
debate on equality. Rather, it is to engage with equality discursively with a view to
contributing towards an ongoing development of a juridical as well as philosophical
path for constructing the normative architecture of a type of equality that is more
responsive to the equality needs of disabled people. The spotlight is on developing a
type of equality that is normatively inclusive and transformative as to be capable of
sufficiently meeting the quest for political, and more crucially, economic recognition
of disabled people.
I use a repertoire of analytical techniques to explore and appraise the inclusiveness
and responsiveness of contemporary approaches to equality. At a more general
level, the discourse employs comparative analysis. However, whilst comparative
analysis in this thesis includes comparing and contrasting the equality jurisprudence
of different jurisdictions, and in this instance, comparing and contrasting South
Africa with Canada and the United States, it is, nonetheless, a relatively small part of
my comparative discourse. It is not the primary sense in which the thesis develops a
comparative discourse. The greater part of my discourse employs a comparative
approach to mean comparing and contrasting the underpinning moral compasses of
formal equality and substantive equality with a view to revealing the capacities of
each type of equality to be responsive to the equality aspirations of disabled people.
Over and above comparative analysis, I use, in the main, the historicity of apartheid,
the social model of disability, and feminist theory and practices as analytical
techniques for interrogating the responsiveness of notions of formal equality and
substantive equality. From insights drawn mainly from the social model of disability
and feminism, I construct disability method as a syncretic and legal method for
interrogating the normative sufficiency of equality laws and praxis. Disability
method is the studyâs principal interpretive method for ensuring that the appraisal
of pertinent laws, policies or practices is always conscious of the status of disabled
people as a disadvantaged and vulnerable historical community, and the imperative
of transforming erstwhile culturally, and even more crucially, economically
oppressive norms.
I contend throughout the study that law does not carry inherently neutral values
that, as a matter of course, allow for searching for alternative paradigms of equality.
Ultimately, it is the social construction of disability that holds the key to
interrogating equality norms in a serious manner and not merely restating what the
legislature and the judiciary proclaim about disability and equality. In this sense, by
way of clarifying the methodological and philosophical orientation of this study, it
bears stressing that the analytical approach that it adopts differs markedly from
conventional legal discourses that only use an âinternal critiqueâ, as it were, to critically evaluate legal norms by using norms derived from law in order to
determine whether the law is living up to the standards which it professes to hold
and whether the justice promised by those standards is being dispensed evenly
across all social groups. Though âinternal critiqueâ is part of how some of the
arguments in this study are framed, it is only a small part. The greater part of my
equality discourse derives from external critique. It derives from appraising the law
using ethical or social values that are external to the law but which I argue ought to
shape the law.
Using disability method, and drawing from the thesis of a heterogeneous civic
public sphere, I situate the normative ethical framework for substantive equality
within a type of participatory democracy in which equality is constructed
dialogically and not unilaterally or hegemonically. I treat equality as a component of
democratic ethics that result not from a given centre but from an egalitarian dialogue
between disabled people and enabled people. I argue for inclusive heterogeneous
equality as the operative equality template for eradicating disablism in an imagined
participatory democracy in which respect for pluralism and the eradication of
dominance and subordination among social groups are core foundational ethics.
|
|---|
