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Hauerwas and Disability Law: Exposing the Cracks in the Foundations of Disability Law
| Content Provider | Semantic Scholar |
|---|---|
| Author | Schiltz, Elizabeth Rose |
| Copyright Year | 2011 |
| Abstract | I INTRODUCTION Stanley Hauerwas argues that "[n]o group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped." (1) He describes people with intellectual disabilities (2) as "the crack I desperately needed to give concreteness to my critique of modernity." (3) Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite advancing maternal ages that should be causing those numbers to increase. (4) On the other hand, laws expressing a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted, typically with overwhelming support, since the passage of the Individuals with Disabilities Education Act in 1975 (5) ("IDEA"), which ensured the education of children with disabilities in public schools. The Americans with Disabilities Act of 1990 (6) ("ADA") prohibited discrimination against people with disabilities in public accommodations and employment, and the Genetic Information Nondiscrimination Act of 2008 (7) prohibited employers or health insurers from discriminating based on information from genetic tests. There are, indeed, puzzling inconsistencies in contemporary society's attitudes toward the disabled--inconsistencies that Hauerwas identifies as evidence of the flaws of modern humanism. Humanism's emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. But Hauerwas focuses his critique on two related corollaries--namely, that autonomy and the ability to freely create one's own identity constitute equally fundamental markers of humanity. Disability law scholar Samuel Bagenstos identifies and attempts to explain a series of contemporary contradictions in disability law, including those stemming from recent case law restricting the scope of the ADA and the debate about abortion after a prenatal diagnosis of a disability. (8) A careful analysis of these arguments reveals similarities between Bagenstos's explanations for the contradictions he observes and significant aspects of Hauerwas's critique of modern humanism. I will argue that Bagenstos's arguments could be strengthened by incorporating more completely Hauerwas's full critique. Appreciating the similarities between Bagenstos's arguments and Hauerwas's insights does more than simply clarify and strengthen Bagenstos's arguments. It also evidences a growing and potentially powerful convergence of theological and secular reflection on the thorny conundrum posed by contemporary society's treatment of the significantly disabled. By joining forces, proponents of both religious and secular arguments might be able to work together for the development of a less contradictory--and more inclusive--set of laws and practices for people with disabilities. II HAUERWAS'S CRITIQUE OF MODERN HUMANISM: THE PRETENSIONS EXPOSED BY PEOPLE WITH INTELLECTUAL DISABILITIES Over the course of Hauerwas's voluminous writings about people with intellectual disabilities, he admits serious misgivings about instrumentalizing the disabled by making them a part of his intellectual agenda. (9) However, he is unable to resist either working with or writing about such people, because by being "drawn into the world of the mentally handicapped," he eventually came to realize that "[o]ur humanism entails we care for them once they are among us, once we are stuck with them; but the same humanism cannot help but think that, all things considered, it would be better if they did not exist." (10) The folksy idiom of this quote belies the complexity of its insights. … |
| Starting Page | 23 |
| Ending Page | 52 |
| Page Count | 30 |
| File Format | PDF HTM / HTML |
| Volume Number | 75 |
| Alternate Webpage(s) | https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4332&context=lcp&httpsredir=1&referer= |
| Alternate Webpage(s) | https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4332&context=lcp |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
