Wednesday, January 18, 2012

Rhetorical Disability and Legal Capacity

Reading the book "Mad at School: Rhetorics of Mental Disability and Academic Life" by Margaret Price, I am introduced to the concept of "rhetoricity" and "rhetorical disability". Rhetoricity is "the ability to be received as a valid human subject" and "a diagnosis as mentally ill 'necessarily supplants one's position as rhetor'" so that "'to be disabled mentally... is to be disabled rhetorically'" [quoting Catherine Prendergast].

Rhetorical disability is the silencing we face by family organizations like NAMI and the persistent, wounding failure of the media, governments, and our own allies (dissident mental health professionals, human rights organizations, academics) to cite our scholarship and advocacy. It is the conspiracy of gender, race, all forms of "otherness" together with open identification as a person with psychosocial disability (or as a survivor of psychiatry: the subtleties and shield of personal privacy are always lost) that demands of us a super-compliance with what Price calls "rules of civility" particularly at the very moments when we are protesting the silencing of our scholarship, advocacy and ownership of the discourse about us.

It is that which makes it possible for members of a cross-disability organization or even one of our own organizations to expel or ignore one of us who forcefully expresses a political challenge to hegemony of any kind... from another angle it is the dirty side of organizational life, petty politics, get over it. But a) what if we can't? and b) shouldn't we be developing an accessibility consciousness that pushes us to do better?

In her second chapter called "Ways to Move," Price adopts concepts that are familiar to me from my own grappling with the CRPD (Convention on the Rights of Persons with Disabilities) model of equal legal capacity. She gives descriptive examples of things that can be done to make academic courses more accessible for students with mental disabilities (her preferred terminology) and significantly, says that there is no static recipe to apply but instead a necessary questioning and revising, "ways to move" in working towards universal instructional design that can meet the needs of any student without requiring her to proactively request accommodation. In my work on legal capacity, I have also highlighted the need for universal design (of the legal system and rules for asserting legal rights and determining legal responsibilities), with attention to systematic accessibility for all users of that system including people with psychosocial disabilities, also incorporating the principle of accommodation where needed in any particular case and the availability of intensive personal support as a positive measure that may go beyond the capabilities of more systemic measures. (From my reading of Price, I may want to reconsider the relationship of the positive measure of support, with universal design: and I recall that some of us had discussed making support itself universally available, just as Price invites students to discuss their particular learning needs without requiring them to identify as having a disability.)

Legal incapacity is the most disabling implication, or consequence, of rhetorical disability. It is a meta-discourse that invites people to judge one another's "ability to be received as a valid human subject" with the effect of invalidating people as legal subjects. Price calls attention to this when she says:
To lack rhetoricity is to lack all basic freedoms and rights, including the freedom to express ourselves and the right to be listened to.

In the Convention on the Rights of Persons with Disabilities, we explicitly determined that, as a matter of international human rights law, legal capacity is a right accorded to all persons without discrimination based on disability. Rhetorical disability is thus both de-legitimized as a form of discrimination and disablement (insofar as the right to legal capacity is as broad as social life itself, which is justified by the CRPD text recognizing the legal capacity of persons with disabilities "on an equal basis with others in all aspects of life"), and de-coupled from legal consequences or authority (i.e. if individuals continue to make meta-judgments about each other's "ability to be received as valid human subjects" these judgments amount to mere opinion and prejudice rather than an exercise of power validated by law: "I think you're a jerk and I won't interact with you" rather than "I can have you institutionalized despite your protests, because your refusal is invalid").

The concept of "rhetorical disability" is especially powerful I think, to bring out the broadest sense and reach of the right to legal capacity. It helps us to argue that refusing to negotiate a contract with a person with psychosocial or intellectual disability is discrimination, and that making the independent exercise of legal capacity conditional on "at least one person's understanding of the person's communication" wrongly conflates practical power with legal rights. If I have the legal right to enter into a contract, make health care decisions, etc., there is no guarantee that I will understand what I'm agreeing to, or that the other person will understand what I want: all we can do, as Price argues in relation to accessibility of academic spaces, is to develop "ways to move" that allow us to get as close as possible to satisfaction rather than frustration for everyone using the legal system or its rules for asserting rights, determining responsibilities and creating/ending obligations and relationships.

The concept of "rhetorical disability" needs to be brought out at all levels of our advocacy, beginning with the meta-acceptance of us as valid (and privileged) experts in the discourse about our rights, doing away with the residual discomfort about this that persists in the human rights discourse opened up by our work on the CRPD (extremely influential and successful, but a kind of fluke that took advantage of the general space opened up for disability at the UN: as Price notes citing Cynthia Lewiecki-Wilson, even the disability community tends to stop short at rhetoricity). We need to consider Price's description of "ways to move" as a starting point for the discussion of access, and how it can be applied in other settings, like workplaces, public accommodations (hotels, transportation, shops, etc.), and in creating community strategies to deal with conflict, accountability and justice. Further consideration should be made of how rhetorical disability relates to practices developed in peer support/advocacy and alternative mental health (such as Intentional Peer Support, Hearing Voices Network, Personal Ombudsperson, Soteria, first person phenomenological understanding of suicidality and self-harm, etc.) and to other frameworks holding the value of solidarity plus autonomy, like (some descriptions of) Restorative Justice.

I'll end here, noting that I haven't finished the book yet and may have more to say, but it is already immensely valuable to me and I thank Margaret Price for her work.

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