Introducing Deaf Law
One of the primary aims of my PhD thesis is to introduce the concept of Deaf Law, developing some of the arguments linked to the Deaf Legal Theory put forward by Bryan and Emery1.
The rationale for this is, I argue, that Deaf people are very much categorised by their “disability status”, which in the case of Deaf British Sign Language users, may not be entirely appropriate and may indeed be one of the reasons, if not the reason, why Deaf people and the law don’t necessarily “get on”2.
In order to establish what Deaf law is, it appears prudent to explore what disability law is as Deaf people are traditionally seen as disabled3. By doing so, it will be possible to determine features of disability law that can be transplanted to this new paradigm.
A literature review of the “disability law” concept saw Degener declaring in 1999 that “disability law [was] not … a field of legal research … nor [was] it … widely recognised in other countries around the world”4. Since that time, disability law appears to have ‘grown up’, with contributions made to the field by Weber, Hendriks and Degener, Mor, Kanter, Alldridge, tenBroek and Matson, Ingram, Weisbach and Ingram. It appears that the focus is shifting away from the civil and human rights of disabled people towards a return to the welfare model.
One argument of particular note about where disability law can be found is that it has commonly been included in social security and welfare legislation, health law or guardianship law5, and disability law is more than just discrimination law in employment and human rights law6; it is incumbent in land law, mental health law, charity law, local government law, employment law, social security law, discrimination law and environmental law7. Weber and Kanter, like Alldridge, consider that disability law also includes other areas of the law that have a special effect on disabled people and the interaction between them and society, particularly the law of torts, contracts, wills and trusts, criminal law, poverty law and public benefits and social insurance8. Kanter goes as far as to argue that the legal system is actually deeply entwined in disability issues9 and can be found in the following areas of law: tort, crime, contract, property, constitutional law, family, administrative law, employment and discrimination, tax law, sports and entertainment law and evidence.
It is therefore argued that disability law can be found wherever disability can be found, and following that logic, Deaf law can be found wherever deafness can be found, when Deaf people are the subject of discussion, affected by any such discussions, or where they are enforcing their general legal rights as citizens in different areas of law.
The next step then is to explore the theoretical perspectives involved in each area of law and how they collude or collide with the Deaf identity, in the process identifying how Deaf people and these laws “get on”. However, for the purpose of my thesis, it is not possible to examine every area of law, and so this needs to be narrowed down somewhat, and it is proposed that equality law, welfare law and language law are the areas of law that will be looked at.
- A Bryan and S Emery, ‘The Case for Deaf Legal Theory through the Lens of Deaf Gain’ in H-Dirksen, L Bauman and JJ Murray (eds) Deaf Gain: Raising the Stakes for Human Diversity (University of Minnesota Press 2014) 37.
- See the British Deaf Association’s ‘Legal Status for BSL and ISL’ report for examples.
- HL Lane, ‘Do Deaf People Have a Disability?’ (2002) 2 Sign Language Studies 356, 356.
- T Degener, ‘International Disability Law-a New Legal Subject on the Rise: the Interregional Experts’ Meeting in Hong Kong, December 13-17, 1999’ (2000) 18 Berkeley Journal of International Law 180.
- P Alldridge, ‘Locating Disability Law’ (2006) 59 Current Legal Problems 289, 291.
- ibid 293.
- MC Weber, Understanding Disability Law (LexisNexis 2012) 246, [1.01B].
- AS Kanter, ‘The Law: What’s Disability Studies Got To Do With It or An Introduction to Disability Legal Studies’ (2011) 42 Columbia Human Rights Law Review 403, 461.