III. Theoretical approaches to understanding ageism2017-03-03T18:30:47+00:00
There are many different ways of looking at ageism. Ageism may be considered as an issue

specifically tied to aging or older age, or it may be considered as having roots in earlier stages of life, to which the societal perceptions of aging and the actual changes associated with aging add more and more layers creating disadvantage or special burdens. In this latter view, ageism is an “add on” or may have a multiplicative effect for some groups such as the poor middle aged, who then become the poor old. Some frameworks for ageism will be more expansive than others, endeavouring to understand not only potential negative consequences of attitudes, behaviours, policies and practices for the lives and well being of older adult, but how systems respond to the people that informally and formally support older adults.

Most discussion of ageism has occurred within sociological, psychological and gerontological fields, as opposed to legal ones. There does not appear to be an explicit theory put forward to help understand ageism and the law. Indeed it has only been very recently (that is, 2009) that any theoretical framework has been put forward to understand aging and the law.[73]

Still, there may be a number of other theoretical approaches in law that may help understand ageism in society and in the law in particular, why it arises and how it might be best remedied or approached. Perhaps some of the productive legal theories for ageism may be those looking at gender, disability and political economy. Few have actually made any attempt to articulate ageism, and what follows below is conjecture about approaches that may show merit. However, even in a best light, each is incomplete.

A. Feminist legal theory

Feminist theory represents a wide variety of analysis and jurisprudence, much of which is based on the belief that the law

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has been instrumental in women’s historical subordination. Feminists work from within many disciplines, as well as a multitude of intellectual paradigms and political positions.[74] Feminist jurisprudence seeks to explain ways in which the law played a role in women’s former subordinate status, as well as their present status, and is dedicated to changing women’s status through a reworking of the law and its approach to gender. Feminism is also about power relations. It has been pointed out by feminist writers that age can be an organizing principle of power, just as gender, race, class, and sexual orientation are. [75]

Discussion of aging by feminist scholars is in its formative stages and thusfar has tended to reach to middle age and in the context of middle class women. [76] Feminist legal theory and the common topics within it have given far less attention to older women, inadvertently leaving them marginalized and invisible to the discourse.[77] Where feminist discussion on aging has developed it has largely been in the context of daughters as “caregivers”, or in context of the oppression of the women staff caring for the largely older woman population in long term care facilities. Critics pointed out that this discourse still places power relations “in the gaze of youth”.[78]

Because feminist theory and jurisprudence is about many different types of power relations, the gender lens may also be useful in understanding power shifts within groups. For example, some gerontological research suggests that men feel the impact of ageism differently (stronger) than do women, and that it negatively affects men`s self esteem and health. [79]

It has recently been suggested that feminist jurisprudence can be a useful framework for explaining and reforming elder law and policy.[80] Feminist gerontology and basic feminist principles such as awareness building (educating the group and the broader society about the issues), egalitarianism, empowerment, and inclusion can be used to improve older women’s experiences, especially in key areas such as in the health care system. [81] Dayton (2009) for example, points out that laws and social policies affecting entitlement to public pensions, the delivery and financing of long term care and the allocation of public resources to prevent victimization and abuse of vulnerable adult, are infused with and reflect historic patterns of overt and covert discrimination against women in the workplace and the political arena, and perpetuate the systematic devaluation of “women’s work.”[82]

Other authors have begun to consider age and gender lenses in the context of how systems support some arrangements but also may foster inequities in later life. For example as a group, married women and men tend to be better off in terms of their economic/material, health and social resources than those who are not married. At the same time, younger age cohorts of married women tend to be better off than older age cohorts of married women.[83] This invites consideration of how policies individually or cumulatively across the life course aid the relative advantage or disadvantage for various groups of older adults.

Feminist legal analysis in the future may be interested in exploring the various power differences evident in older age, to help explain for example why in healthcare, doctors often treat old persons differently – by withholding information, services, treatments; and often take older persons’ complaints or symptoms less seriously, often attributing them to old age. [84] In this power based schema, the requirements of health law such as consent remain at the margins, honoured neither in letter nor spirit, and old people’s authority and autonomy may become subordinated to the needs, interests, and wishes of all others.

It has been suggested that women’s subordination in the law is based on the assumption that male norm represents the full adult, and that women represent deviation. [85] Along a similar line, the roots of seniors’ subordination in the law may come from the assumption that the younger (NOT OLD) adult represents the full legally recognized adult, and that the aging older adult is a “deviation” of this norm. Within the gender framework women have often been treated as property. It may be useful to look at the extent to which older persons are treated as commodities, with little if any inherent value as persons. As such, they can simply be discounted, ignored, or moved around like objects and removed when considered “too much work” in key areas such as housing and health care.

B. Critical race theory

Another potential useful framework of legal theory for understanding ageism is critical race theory, stemming from Critical Legal Studies. It is based on six or more premises: disenfranchised people‘s stories illustrate the complex interplay of the events in people’s lives and the barriers they face to accessing citizen’s rights. Second, group or individual behaviour (such as racist behaviour, or in the present case, ageist behaviour) is not an aberration, but is normal practice. Third, elites act against discriminatory (sexist, racist or ageist) behaviour in society only when it serves them.[86]

Fourth, race (or age) is a social construct, not biological. The expectations of who is a member of that race or “the elderly group”, changes, narrowing and expanding. Fifth, characteristics ascribed to a particular race (or age) will change. For example, older adults have been characterized in the past as “wise” and the “holders of history”, but are now more commonly called “economic burdens”, a “grey tsunami” or any other similar demographically apocalyptic terms. Older adults may be viewed as a valuable asset in times of economic expansion, but readily disposable and burdens during recessionary periods.

Critical legal studies also speak of “interest-convergence”, where the dominant group (e.g. whites) will promote opportunities for the non dominant groups (e.g. blacks. Aboriginal people) only when they converge with their own interests.[87] So similarly, the “Not Old“ majority or the dominant group will promote opportunities for the older adults only when they converge with the interests of that dominant group. For example, changes to tax laws such as pension income splitting will be promoted by elites and will predominantly help those who are well off.[88]

Sixth, people have intersecting identities, i.e. there is more than one way that they are affected by disenfranchisement or inequality in later life. For instance, an older man who is gay and HIV positive has at least three different lenses to look through. [89] So does an older Jamaican woman who is a paraplegic, and an older white Jewish immigrant, etc.

Others within critical legal studies assert that racism, sexism and classism are experienced amid other layers of subordination based on immigration status, sexuality, culture, language, phenotype, accent and surname. Similar themes are arising with the study of ageism, Calasanti (2007) has emphasized the utility of understanding age discrimination in terms of intersecting relations of inequality rather than as only reflecting people’s learned attitudes.[90]

Another one of the areas in which critical race theory and feminist perspectives may aid our understanding is in the context of ”privilege”. In 1990, in a well known essay on “white privilege” Margaret McIntosh described the many accepted ways in which life is ordered around certain (white) values, beliefs, history, and experiences; how whites as a group were acknowledged and visible, and other groups were not.[91] McIntosh argued there are a number of benefits that people gained from being a member of a privileged group, and this privilege reinforced power hierarchies.

There may be similar privileges for people who are not old (creating in effect, a socially enforced “age privilege”). Age privilege may be considered as the wide range of privileges and generally accepted entitlements accorded to young and middle aged persons (persons who are not old). Age privilege encompasses the many things that people can take for granted, can do or expect with some degree of ease because they are young or middle aged adults, as well as the “privilege” of not facing significant barriers and obstacles if they are not older persons.[92] Examples of age privilege would include the fact that unlike the old, younger people will rarely have their mental capability questioned when they make decisions others consider unwise, will not be treated by a health care or legal professional in a patronizing or paternalistic manner and they will not be expected to live in certain types of segregated housing.

C. Disability theory and aging

People in the disability community and seniors organizations have actively resisted efforts by gerontologists or others to suggest there may be certain shared interests. Each group has traditionally underscored that their interests and perspectives are not the same and often tried to ensure that they are seen as “different than” that “other” (“I am disabled, not elderly”; or “I am growing old and yes my hearing is very poor, I am not disabled”).

In some cases, this is based on a belief that the interests, goals and perspectives of the two groups are fundamentally different in key areas such as euthanasia. It has also been argued from a disability perspective that older adults (in contrast to younger adults with disabilities) have lived lives characterized by having relatively greater power or at least once having been powerful, at least compared to persons with congenital disabilities.[93]

Nonetheless, it has recently been suggested that the broad area of law and aging may benefit and drawing a number of lessons from the emergent trends within disability and disability law.[94] To a large extent, the modern understanding of disability has been shifting. It has moved from treating disability as a flaw in the person that requires “fixing”, to an emergent social model which recognized that disability is, at least in part, a social construct. Society can create a physical and social environment disabling to some people or it can open up opportunities that will include them. The general ways of doing things and ways of thinking which are considered normal in a society can create disability. From this work came the human (civil) rights approaches to accommodate persons with disabilities.

However, this approach still left persons with disability apart from society, because it was premised on distinguishing a minority group and a majority group. In the late 1990s a new model for conceptualizing abilities called universalism attempted to articulate a more inclusive approach. In contrast to the civil rights model, the universalism model defines society as a single group, made up of infinitely variable individuals with a continuum of ability levels. Efforts are made to a shape the social and legal environment so that it is as inclusive as possible of this extremely wide variety of persons.

It has been suggested by one writer that universalism may serve older adults better in the long run than the civil rights model. [95] While its general value has yet to be seen, universalism might be particularly useful to expand our understanding of needs of some highly vulnerable groups such as older persons with dementia. In gerontology there is a nascent area which is highlighting the personhood among people who have dementia.[96] Universalism may offer the possibility of persons with dementia being better recognized as persons first, and whose cognitive and other abilities levels are part of that wide continuum among persons in a society.

D. Mental health law theory

Mental health law theory may offer insight into a number of key areas affecting the lives and well being of older adults, especially areas that touch on social control and mental capability issues. It has been noted in the area of laws and aging, there has been a dramatic historical shift of public policy about older persons from concerns about equity and social justice in the 1960s to current focus on efficiency and cost containment.[97] Schmidt (2009) points out that a sea change was achieved in the incidence of poverty and quality of life for older adults as result of changes to the social security and health care insurance systems. He notes however “the preoccupations with cost containment in the late twentieth century arguably changed the function and political economy of elder law and policy from social justice to social control.”[98] Mental health theory’s focus on social control will become increasingly relevant in the context of the emerging surveillance technologies increasingly being used to monitor the day to day lives and moment-to-moment experiences of people with dementia living at home or receiving home care services.[99]

Schmidt also argues that a critical view of law and aging, drawing on mental health theory sees growing old as a form of social deviance:

the elderly are punished by isolation and stigmatization for this ‘deviant’ act” [of growing older], the normative premises of law are free will and responsibility…, including the legal fiction of law treating people for policy reasons as if they are responsible, even if scientifically or medically they are not responsible. [100]

Mental health theory has coined the term “sanism” in jurisprudence to refer to the fear, stigmatizing and stereotyping of persons with mental illness, and consequently the use of the law as “protection for their own good”. Older adults are one of the two key groups of adults likely to have their mental capability called into question, especially if they have dementia and are part of the “old-old” age group.[101] Schmidt argues that guardianship may be a sanist, ageist archetype, in that guardianship law strips people of their rights, and yet the evidence is equivocal on whether that guardianship actually leaves their lives safer or better.

The ways that that mental health issues are perceived and addressed in later life are important in the context of older adults. Only two percent of all adults aged sixty- five and over have dementia, but the rate increases with age.[102] The disease is progressive but it also progresses at different rates, impairs people’s functioning to different degrees, and affects people quite differently. About one third of people aged eighty five and over has some degree of mental impairment as a result of Alzheimer’s disease or other dementia. One half of these individuals live independently or in a supportive housing environment in the community. Some reside alone, many with a spouse or partner, and some family members or others. Unfortunately for this group of individuals and for their family members and supporters, there is a lack of qualified dementia support across the care and housing continuum.[103]

Mental capability arises in many other diverse and somewhat contradictory contexts for older adults. This includes for example, (a) when the mentally capable older person is ignored , not asked and not consulted (invisibility), (b) when the older person’s mental capability is questioned (personal risks, treatment, financial decision-making), (c) turning to substitute decisionmakers when the older person is still mentally capable, (circumventing the person) (d) when the older person’s mental incapability is ignored, i.e., the person is being held responsible for acts when their incapability should be at issue.

E. Ageism, economics and ideology

To date, ageism has been given greater consideration in the workplace and employment law than in other sectors. Roscigno in a 2007 analysis of ageism in the workplace considered (a) the interactional nature of age discrimination and its relation to status, (b) how explicit ageist stereotypes both invoked discrimination and helped gatekeepers justify such behavior, and (c) the ways in which supposedly age-neutral ideologies, centering specifically on corporate costs and well-being, may also spur ageist discriminatory treatment. Roscigno revealed precisely how stereotypes were used, and how people rationalized discrimination by invoking business costs.[104]

It may also be beneficial to examine ageism in the context of ideological approaches including neo-liberalism. Aspects of neo-liberalism philosophy include: acceptance of an unregulated market economy; a minimal role for government; suspicion toward the welfare state; a view of citizens as motivated only by self-interest; and a commitment to the central value of individualism.

Classical liberalism doctrines stress individual freedom, free markets, and limited government. The doctrine includes the importance of human rationality, individual property rights, natural rights, the protection of civil liberties, individual freedom from restraint, equality under the law, constitutional limitation of government, and a gold standard to place fiscal constraints on government. The neo-liberal focus on individual self-reliance often evident in government policy, is also subject to the continuing influence of moral and social conservatism with its emphasis on the traditional hierarchical, gendered family.[105]

Neo-liberal policies prioritize economic growth and efficiency and, ideologically, emphasize individual responsibility for meeting basic needs as opposed to a collective responsibility to provide and aid. Neo-conservatism is distinguished by an emphasis on traditional, authoritarian structures and institutions and by a commitment to the traditional gendered family and to law and order campaigns.[106]

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