VI. From Aspiration to Application: Addressing Challenges in Applying the Principles

As noted in Part II, because the principles are, by their nature, abstract and aspirational, challenges arising in translating them into a framework that can provide specific, practical assistance to law and policy makers. This section outlines some of the approaches that the LCO has adopted to meet the various challenges of application. 

A.    Incorporating Lived Experience 

As important as it is to identify principles for the law as it affects persons with disabilities, these principles, without more, are an insufficient basis for an evaluative framework for this area of the law. They must be grounded in a close attention to the lived experiences of persons with disabilities. Applications of the principles which do not incorporate and reflect the lives of persons with disabilities will lead to ineffective programs, policies and laws. The LCO’s Background Paper, Applying the Framework to Transition Points in the Lives of Persons with Disabilities (forthcoming) provides some illustrations of how close attention to the experiences of persons with disabilities can inform and illuminate the application of the principles.  

This attention must include an understanding of how the experiences of persons with disabilities are influenced by their life courses. For all of us, how we encounter each stage of life is profoundly influenced by the resources and perspectives we have developed to that point. Barriers or opportunities experienced at one stage will reverberate throughout the course of life. For example, disability-related barriers in accessing adequate education may have life-long effects on employment prospects, and therefore on the socio-economic status of persons with disabilities, which will in turn have wide-ranging consequences for health, access to housing, ability to access the law, and many other aspects of life. 

Laws are generally developed on an issue-by-issue basis, as particular problems arise or are identified. People do not, of course, experience their lives as a set of separate issues, or segregate aspects of their identities. For example, an individual may be a mother and a person with a disability: she does not cease to be a mother when she seeks disability-related services, or to have a disability when she seeks childcare or recreation programs for her children. The person with a disability seeking education is not a separate person from the one later seeking employment; these are two stages in a single experience. The categories through which we understand law – family, employment, housing, income supports, human rights for example – do not necessarily reflect the ways in which persons with disabilities experience the law. It is therefore useful to take a person-centred approach in understanding the law and applying the principles, and to see the law holistically, rather than as a series of separate systems.

B.    The “Implementation Gap” – Taking a Broad View of “the Law”

There are laws whose provisions are problematic in terms of their effects on persons with disabilities, whether because they incorporate ableist attitudes into their substance or because they fail to take into account the realities of existence for persons with disabilities. In many cases, however, the law is sound on paper, but problematic in practice. Laws, policies and practices that are in theory neutral or even intended to benefit persons with disabilities may fall short of their goal or have unintended negative consequences. There are many reasons for this, including negative attitudes on the part of those charged with implementing the law or policy, failure to provide disability-related accommodations for accessing programs or services, adversarial approaches to program implementation, resource limitations, or lack of accountability, monitoring and transparency.

This points us to the importance of adopting a broad understanding of “the law” when applying the principles. A close analysis of the language of statutes and policies is important, but it is equally important to develop a strong understanding of the effects of the law as implemented. For this reason, the LCO has adopted a broad definition of “the law” for the Framework, as including not only statutes and regulations, but also the policies through which they are applied, and the strategies and practices through which they are implemented.

Of course, to understand the effects of the law, we must hear directly from those affected by it – both those charged with implementing it, and the persons with disabilities whose lives are shaped by it. In this way, the necessity of addressing the “implementation gap” points us again to the importance of including and respecting persons with disabilities in the process of developing and reforming the law.

C.     Relationships Between Principles

As the brief discussions of the principles in Part V indicate, the principles cannot be neatly separated from each other, and are interrelated in complex ways.  The principles of dignity and independence, for example, cannot be achieved without respect for the principle of safety. The principle of safety is based on respect for the inherent worth and dignity of persons with disabilities. 

However, there may also be tensions between the principles.  For example, two principles may be in tension in relation to the same individual.  A frequently raised issue is the involuntary treatment of persons with psychiatric disabilities. The ability to make choices about one’s own medical treatment is fundamental to autonomy and physical integrity. On the other hand, some have argued for a “right to be well”, and that allowing persons with psychiatric disabilities to refuse treatment may undermine their achievement of the other principles, such as living in safety and social inclusion.  Such tensions are not necessarily amenable to simple solutions, but it is important to acknowledge and address them.  

Tensions between principles may also arise in relation to two different persons or two different communities. For example, members of the Deaf community may prefer as an educational option schools specifically for the Deaf community, where instruction is provided in ASL, to ensure the continuation of their language and culture, whereas the intellectual disabilities community may prefer integration of students with intellectual disabilities into mainstream schools.  Here the principles of respect for difference and diversity, as well as differing visions of inclusion and participation, come into tension.

In assessing tensions between principles, it is essential to be sensitive to the contexts in which those tensions arise.[99]  What specific rights or outcomes are at issue in that particular situation? Who might be affected? How might a reduced implementation of one principle affect the achievement of other principles? That is, the tensions must be examined in a nuanced and holistic manner. 

As well, an examination of tensions, particularly between the principles of security and of independence and autonomy, should be sensitive to the larger social context in which such tensions may exist. In the example cited above regarding involuntary treatment, one of the factors at play may be the policy and resourcing decisions that continue to result in a lack of other types of supports for persons with psychiatric disabilities. In such a case, the real issue may not be a tension between the principles of autonomy and security, but the impact on both principles of the limited available appropriate resources to maximize both. That is, we should not be too quick to reduce a challenge or difficulty to an instance of tensions between the principles.  

One potential pathway to resolving tensions that arise between principles is to create a hierarchy among the principles in order to determine which principle should prevail in the event of a tension with another principle.  One advantage of such an approach is that it is predictable, as well as simple, to apply.  However, the mechanical nature of such an approach ignores the complexity of the issues where such tensions arise.[100] It also ignores the interrelatedness of the principles. To elevate the principle of dignity, for example, above all other principles ignores the potential that restrictions in the fulfillment of other principles, such as autonomy or participation, might contribute to an overall lessening of respect for the dignity of older persons. Hierarchical approaches have generally been rejected in the area of rights for this reason: for example, the preamble of the Convention on the Rights of Persons with Disabilities reaffirms “the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms”. 

The concepts of “reconciling” or “balancing”, which have been explored in the context of competing rights, might be useful to consider in this context.[101] Reconciliation is an approach that attempts to give proper recognition of both principles to the greatest degree possible.[102]  Balancing, may involve the weighing of one principle against the other.  Using a balancing approach may have the disadvantage of creating the impression that the principles are actually competing and need to be considered hierarchically.[103] 

An important element of addressing tensions that may arise between principles is to recollect that the principles themselves have been developed as a means of responding to the marginalization, exclusion and oppression of persons with disabilities. That is, in considering how to resolve tensions between principles, one might consider the particular types of barriers that the principles were intended to address, and how any specific approach to resolving the tensions might impact on the achievement of the broader goals of an anti-ableist approach to the law.[104] 

It is also important to realize that the principles in tension should not be viewed in isolation: in trying to resolve tensions, it is often helpful to ask how the other principles that might not be so obviously implicated help inform an appropriate resolution.

D.    Addressing Evolving Realities and Recognizing Constraints

The application of the principles cannot be static. The circumstances of persons with disabilities will continue to change as laws, attitudes, demographics and other aspects of the broader environment change. As well, understandings of disability continue to evolve, and new perspectives are heard. What might be considered conducive to attainment of the principles at one time may appear unhelpful or inadequate at a later date.

As well, even where one aspires to implement these principles to the fullest extent possible, there may be constraints in doing so, such as resource limitations or competing needs or policy priorities.

Therefore, a progressive realization to the principles should be adopted.  Efforts to improve the law should be continually undertaken as understandings about the experience of disability evolve, or as resources or circumstances make progress possible. Where constraints exist, principles should be realized to the greatest extent possible at the current time, and concrete steps for future improvements continually identified and planned.

In the realm of international human rights law, the framework of “protect, respect, fulfill” is used to analyze and promote the implementation of human rights obligations. In this analysis, states must address their human rights obligations in three ways:[105]

1. The obligation to respect – Governments must refrain from interfering with the enjoyment of rights. For example, governments must not exclude individuals from access to employment or education on the basis of their disabilities.
2. The obligation to protect – Governments must prevent violations of these rights by third parties. For example, States must require private employers to refrain from discriminating in employment because of disability.
3. The obligation to fulfil– Governments must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights. For example, governments might create special programs to provide supports for persons with disabilities who face particular barriers to transitioning into employment following the end of their education.

This approach can be useful in analyzing and promoting the realization of the principles in the law as it affects persons with disabilities, or indeed any group. At minimum, governments must not violate the principles (i.e., they must respect and protect them), but complete fulfillment of the principles may be progressively realized as understandings and resources.