Foucault and the Government of Disability

Legislating Disability: Negative Ontologies and the Government of Legal Identities

fiona kumari campbell


 Legislating Disability Negative Ontologies and the Government of Legal Identities Sociological inquiry and legal investigation into disability1 must at some point implicitly return to, and negotiate, matters of “disability” at an ontological level. I say “implicitly” because the predominant forms of sociotherapeutic analysis of disability adopt a reductionist approach, which situates “the problem” of disability at the level of attitudes or bias that lead to devaluation. Seldom is the matter of ontology—in particular, negative ontology—regarded as a paramount focal concern in unpacking disability subjecti‹cation. In what follows, I seek to redress this imbalance. In order to do so, I foreground the ontology question. In particular, I discuss disability -negative ontologies and the ways in which these ontologies are in›ected in the practices and effects of law. Ontology Wars and the “Unthinkability” of Disability
 A system of thought . . . is founded on a series of acts of partition whose ambiguity, here as elsewhere, is to open up the terrain of their transgression at the very moment when they mark off a limit. To discover the complete horizon of a society’s symbolic values, it is also necessary to map out its transgressions, its deviants. —marcel detienne, Dionysos Slain Activists with disabilities have placed great trust in the legal system to deliver freedoms in the form of equality rights and protections against discrimination . While these equalization initiatives have provided remedies in the lives of some individuals with disabilities, their subtext of disability as 108 negative ontology has remained substantially unchallenged. It is crucial, however, that we persistently and continually return to the matter of disability as negative ontology, as a malignancy, that is, as the property of a body constituted by what Michael Oliver refers to as “the personal tragedy theory of disability,” a conception in whose terms disability cannot be spoken as anything other than an anathema. On the personal tragedy theory, Oliver notes, “disability is some terrible chance event which occurs at random to unfortunate individuals” (1996, 32). In the terms of the “tragedy theory,” disability is assumed to be ontologically intolerable, that is, inherently negative. This conception of disability underpins most of the claims of disability discrimination that are juridically sanctioned within the welfare state and is imbricated in compensatory initiatives and the compulsion toward therapeutic interventions. Insofar as this conception of disability is assumed, the presence of disability upsets the modernist craving for ontological security. The conundrum of disability/impairment is not a mere fear of the unknown, nor an apprehensiveness toward that which is foreign or strange (the subaltern). Disability and disabled bodies are effectively positioned in the nether regions of “unthought.” For the ongoing stability of ableism,2 a diffuse network of thought, depends upon the capacity of that network to “shut away,” to exteriorize, and unthink disability and its resemblance to the essential (ableist) human self. As Foucault explains: The unthought (whatever name we give it) is not lodged in man [sic] like a shriveled up nature or a strati‹ed history; it is in relation to man, the Other: the Other that is not only a brother but a twin, born not of man, nor in man, but beside him and at the same time, in an identical newness, in an unavoidable duality. (1994, 326) In order for the notion of “ableness” to exist and to transmogrify into the sovereign subject of liberalism it must have a constitutive outside—that is, it must participate in a logic of supplementarity. Although we can speak in ontological terms of the history of disability as a history of that which is unthought, this ‹guring should not be confused with erasure that occurs due to total absence or complete exclusion. On the contrary, disability is always present (despite its seeming absence) in the ableist talk of normalcy, normalization , and humanness. Indeed, the truth claims that surround disability are dependent upon discourses of ableism for their very legitimation. The logic of supplementarity, which is infused within modernism’s unitary subject and which produces the Other in a liminal space, deploys what Legislating Disability  109 we might call a “compulsion toward terror”: a terror, ontological and actual, of “falling away” and “crossing over” into an uncertain void of disease . Such effects of terror may produce instances of disability hate crimes, disability vili‹cation, and disability panic. The manifestations of this terror rarely enter judicial domains, but rather are excluded from law’s...