| Popis: |
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. |
