BETWEEN HOPE AND EVIL REFRAMING DISABILITY

BETWEEN HOPE AND EVIL: REFRAMING DISABILITY

ALLOWANCES

Sagit Mor∗

ABSTRACT

The paper identifies and traces the roots of a fundamental tension that underlies disability politics with regard to disability allowances: are cash benefits an archaic and outdated form of assistance to disabled people, or are they still a relevant mode of response to systematic marginalization and exclusion? Based on a field study of the Israeli disability community the paper shows that while disability rights advocates tend to reject disability allowances as fundamentally wrong and to support the transformation of society's social structures, welfare activists tend to view disability allowances as responding to the most pressing needs of poor disabled people. The

paper employs a disability legal studies framework to analyze the study’s findings. It suggests thinking of disability allowances as located in a complex and intriguing tension between two dichotomous conceptualizations of either evil or hope: Disability allowances are seen as a manifestation of evil because they perpetuate the ableist structure of society. They offer a vision of hope when seen as a response to a pressing necessity, an expression of social responsibility, and a means to provide economic security for disabled people. The paper maintains that both approaches lack a more complex understanding of the relationships between disability and poverty. It concludes with a call to re-conceptualize disability allowances, as a form of compensations that redress disabled people – individually and collectively – for society's continuing practices of exclusion and discrimination. The struggles of disabled people over rights and allowances become a fascinating site from which to draw the critical lessons that disability activism has to offer to social theory.

∗ Assistant Professor, University of Haifa Faculty of Law. LL.B., Tel Aviv University.

LL.M. and J.S.D., NYU School of Law. This work was supported in part by the Ed Roberts Postdoctoral Fellowship in Disability Studies, at the Institute of Urban and Regional Development, University of California at Berkeley, funded by NIDRR #H133P020009. I am grateful to the following people for their insightful and helpful comments: to Christine Harrington, Carrie Menkel-Meadow, Oscar Chase, Jerome Bruner, Sue Schweik, and Victor Weinberger, to the participants at the Disability Studies Seminar, University of California at Berkeley, the Law and Society Association Annual Meeting, the Society for Disability Studies Annual Conference, and the Haifa Forum of Law and Society. All translations from Hebrew are mine, unless otherwise noted. Email: [email protected].

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Contents: Introduction A. Disability and Poverty – Challenging Relationships A.1. The Overlaps between Disability and Poverty

A.2. The Constitutive Relations between Disability and Poverty

A.3. Group Consciousness and Inter-Group Relations B. A History of Disability Allowances in Israel C. Disability Allowances as Hope: A Social Welfare Perspective

C.1. The Disability Allowances Protests C.2. The Role of Disability Allowances in Disabled People’s Lives

D. Disability Allowances as Evil: A Disability Rights Perspective D.1. Equal Rights for Disabled People – A Means to Transform

Rights and Welfare D.2. The Equal Rights for People with Disabilities Law – Avoiding

Disability Allowances D.3. Explaining the Absence of Disability Allowances D.4. Reactions to the 1999 and 2001 Protests

E. Between Hope and Evil: Rights and the Persistence of Poverty F. Towards Reframing Disability Allowances

We are given poor and miserable allowances so that we stay alive and be silent. They say: “Nobody can tell us that we are an immoral society, because you are alive.” But what kind of life are we talking about here? I am struggling so that a disabled person can be part of society, and this starts with money and food. I want the disabled to live in dignity, to be able to go to work and to contribute to society.

Yoav Kraim, Campaign for Handicapped Persons, 2002 1

Introduction

The rise of disability rights has changed the language of disability-related disputes and struggles – from charity to rights, from a biomedical paradigm to a social construction perspective, from an individualist focus on fixing and curing the person to an effort to transform society. This change has also impacted legal scholarship, which has become increasingly more interested

1 Hagar Yanai, Things I Learned while Sitting, Ha’aretz, 11/1/2002 (A profile piece in

Ha’aretz Magazine).

3 BETWEEN HOPE AND EVIL

not only in disability rights but also in the social construction of disability and the role of law in that process.

The paper examines the sociolegal construction of disability, focusing on different attitudes among disability activists toward disability allowances. The paper is part of a larger project which demonstrates that disability benefits came to play a major role in defining and constituting the meaning of disability. It is further argued that due to their significant effect, disability benefits merit greater attention than that currently allotted by disability rights activists and scholars. The paper draws on an in-depth field study of the Israeli disability community during a particularly intensive era, when Israeli disabled people began fighting vocally over rights, recognition, and economic security. The struggles of disabled people in Israel have become a fascinating site from which to draw critical lessons pertaining to social theory.

The field study revealed that within the disability community, different groups hold different views about disability allowances. While all are interested in breaking the historical link between disability and poverty, they do not share a vision about the way to do it. Disability rights’ advocates (in Israel and elsewhere) tend to reject disability allowances as fundamentally wrong and support instead the transformation of social structures and institutions. In contrast, welfare activists tend to view disability allowances as a most important issue which addresses the most pressing needs of poor disabled people who cannot wait until the rights revolution becomes a reality.

Given this dichotomy, this study poses the following question: Should cash benefits be considered an archaic and outdated form of assistance for disabled people, or are they still a relevant mode of response to systematic marginalization and exclusion? Do they serve as a manifestation of ableism or a way to fight it?

This intriguing tension became apparent during two long sit-in strike campaigns of disabled people in Israel that took place in 1999 and 2001. 2 The two campaigns were organized by disabled people and were very successful in bringing the issue of disability allowances to the forefront of the national agenda and in spurring strong and compassionate public support.3 The strikes

2 For a more detailed account of those protests, see Chapter C. For additional reading

on the protests and their implications, see: Arie Rimmerman & Stanley S. Herr, The Power of the Powerless: A Study on the Israeli Disability Strike of 1999, 15 J. DISABILITY POL’Y STUD. 12, 15 (2004); Hila Rimon-Greenshpan, Disability Politics in Israel: Civil Society, Advocacy, and Contentious Politics 27(4) DISABILITY STUD. QUART. (2007).

3 The information on the Campaign for the Handicapped and on their activities during the strike is based on interview with two of its primary figures, Arie Zudkevich and Yoav Kraim; In Struggle – The Bulletin of the Disabled Union, Vol. 1-3; the organization’s website (see:

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lasted 37 and 77 days, respectively, during which a core of activists, mainly with mobility impairments, spent their days and nights in a tent that was placed in front of government buildings in Israel’s capital, Jerusalem. Both campaigns were mainly concerned with social welfare benefits for disabled people, particularly cash benefits. The main demand was to bring disability insurance allowances up to par with minimum wage in Israel, which is regarded as a minimum standard of dignified living.4 The protests were also concerned with additional related issues, such as disability allowances for homemakers and for the elderly, disability healthcare services, and more. Both strikes came to an end after the relevant Israeli government office signed an agreement accepting some of the strikers’ demands. Yet the significance of these protests transcended their concrete results: both incidents became movement building events, unique instances in which the voice of disabled people was heard, rare moments of solidarity in action.

However, a closer look at the disability community’s reactions to the protests reveals inner conflicts. While all activists in the field agreed that the strikers’ demands were justified, not all agreed with their choice of goals, the language they used, the implications of their message for the meaning of disability, or their vision of disabled people’s place in society, as reflected in their struggle.5 Disability rights’ advocates were particularly conflicted, because their intent was to reject the old schemes of welfare and charity and turn towards the new possibilities that rights entail. For them, this was an old type of struggle, of the kind they wished to transform. By emphasizing disability allowances and by using images of disabled people as miserable, poor, hungry, and sick, the sit-in strikes seemed to take a step backward, threatening the fragile achievements of the disability rights era.

The paper traces the roots of the conflict between the disability rights’ advocates and the strikers, from the perspective of disability legal studies (DLS). DLS is a theoretical framework for the study of law and disability, which I have identified, labeled, and developed elsewhere.6 It is a branch of critical legal theory that incorporates the lessons of disability studies, as

http://www.media4u.co.il/nechim/main.asp (in Hebrew) and reports from Israeli newspapers from that time (particularly Ma’ariv and Ha’aretz).

4 At the time of the protests, disability allowances were approximately $400 per month, minimum wage about $800 per month. Average wage was $1500.

5 The strikers were criticized for using images that evoked pity and mercy among the general public rather than dignity and rights. See Chapter D.4.

6 Sagit Mor, Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy, 18 Yale J.L. Hum. 63 (2006); Sagit Mor, Imagining the Law: The Construction of Disability in the Domains of Rights and Welfare – The Case of Israeli Disability Policy (J.S.D. Thesis submitted to NYU School of Law, 2005).


elaborated in the humanities and social sciences, a thick socio-legal analysis. The primary tenet of disability studies is that disability is a socially constructed category rather than an inherent, objective, or fixed trait that resides within the disabled person. Disability studies focuses on the complex ways that economic relations, cultural meanings, social practices, and institutional settings participate in the disablement of persons, and analyzes the forms and manifestations of the dis/ability power system in various social practices and institutions. It also examines the portrayal of disabled people as inferior, useless, abnormal, and a burden to society. As a method, the discipline requires listening to voices and experiences of disabled people and incorporating them into its findings and critiques. In DLS, these underlying principles are applied to the study of law. DLS focuses on critique of legal doctrines, institutions, concepts, and practices, as it examines the role of law in the social and cultural construction of disability.

Using a DLS approach, this study calls for the re-thinking and re-conceptualization of the meaning and function of disability allowances, as well as the further investigation of the relationships between disability, poverty, and rights. Following the findings presented here, I suggest in this paper that disability allowances are currently thought of as a concrete manifestation of either hope or evil. The dichotomy between these two views creates a complex and intriguing tension: on the one hand, disability allowances are seen as a manifestation of evil because they perpetuate the ableist structure of society. They offer a vision of hope, on the other hand, when seen as a response to a pressing necessity, an expression of social responsibility, and a means to redress the continuing wrongs of ableism and to provide economic security and human dignity for disabled people.

The study examines the claims with which each perspective challenges the other. It is suggested that disability rights’ advocates have disregarded the urgent needs of disabled people as they failed to create a model that can guarantee economic security (e.g., through social welfare or social security mechanisms). At the same time, welfare advocates have neglected to develop a structural and comprehensive critique of welfare (of disability allowances, in particular). Both sides, I argue, have fallen short of addressing vital concerns of this community. The current study introduces a different view of disability allowances, based on the possibilities that a right to social security or to minimum standards of living might entail. This approach considers disability allowances a collective form of compensation that redresses society's ongoing and practices of exclusion of and discrimination against disabled people.

The implications and contribution of this study are not limited to disability politics or to the Israeli context. Rather, the suggested critique presents a challenge that is representative, as it carries lessons for the general

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politics of poverty and rights, particularly for struggles over cash benefits, and for the possibility of coalition building around those issues.

Chapter A discusses the relationships between disability and poverty, and suggests transcending the view of disability and poverty as two distinct concepts – albeit with overlaps and correlations – in favor of a more critical view, which emphasizes their contingencies and mutual relations. Chapter B provides a short introduction to the history of disability allowances in Israel.

Chapter C and D delve into the details of the two perspectives on disability identified in my fieldwork. Chapter C discusses the social welfare perspective on disability allowances as expressed by the activists who led the long protests, a view which associate allowances with hope. Chapter D analyzes the view of disability allowances as evil, as expressed by disability rights’ advocates, particularly in their reactions to the protests.

Chapter E explores the tension and the gamut between evil and hope, without necessarily seeking to resolve it. It provides a more detailed critique of the disability rights discourse, which is based on the realistic understanding that poverty is a sustained problem that can neither be ignored nor assumed to soon become irrelevant. The chapter therefore suggests that the issue merits an approach more complex than that of a simple dichotomy: it proposes that disability allowances be acknowledged as an undesirable yet unavoidable necessity. Chapter F proposes possible alternatives for reconsidering disability allowances – what they should cover, and how they should be understood. It is argued that this new approach views disability allowances as an expression of solidarity and social responsibility: it is society paying its debt, by supporting disabled people as they bear the extra disability-related costs in a society that has been and still is inaccessible and unaccommodating.

Before I proceed, a few caveats are due. First, my goal is not to provide a detailed reform proposal but to expand the social imagination to alternative conceptualizations of disability allowances, to continue the discussion about their role and meaning. For the same reason, budgetary concerns are beyond the scope of this discussion, although I do not ignore their significance in later stages of implementation. Finally, the concept of disability allowances envisioned here does not assume that establishing disability allowances is an end unto itself, nor that it would constitute the ultimate solution to the problems of marginalization and exclusion of disabled people. Nor is it assumed that conceptualizing disability allowances as a right – and I discuss later what this means – would ensure that they remain a firm and secure.


social structure.7 However, I do think that understanding the dis/ability power system entails acknowledging the necessity of disability allowances. The recognition that disability allowances are essential goes hand in hand with the aspiration that there will come a day when they will not be necessary anymore, at least not in the lives of so many disabled people.

A. Disability and Poverty: Challenging Relationships

Understanding the historical, political, and socioeconomic context of disability allowances requires a closer look at the relationships between disability and poverty. In this chapter, I suggest two general perspectives. The more common approach views disability and poverty as two distinct concepts that refer to two distinct groups of people, however, there are points of overlap and correlation between them. According to the second, less prevalent view, both disability and poverty are perceived as socially constructed, fluid and contingent phenomena, which historically have been co-constitutive, intensely intertwined, and mutually-dependent upon one another. Both perspectives are important, and together they enrich our understanding of the role disability allowances play in disabled people’s lives. Nevertheless, it is the latter view that allows for a more complex understanding of poverty and disability to develop and, consequently, for the evolution of a more critical approach to disability allowances.

A.1. The Overlaps between Disability and Poverty

The first perspective is widely accepted, as it highlights the fact that, not only are disabled people disproportionately poor, but poor people are also disproportionately disabled.8 Although such an approach may take these categories “as they are” without questioning their histories or the power dynamics within which they are situated, it nevertheless shows an important connection between disability and poverty, according to which disabled people are more likely to become poor and poor people are more likely to

7 I also do not suggest that rights are the best solution to disabled people’s social

hardships and suffering, or the most effective form of resistance. I take rights as the current comprehensive legal language with which to address the marginalization and exclusion of disabled people.

8 Rebecca Yeo & Karen Moore, Including Disabled People in Poverty Reduction Work: Nothing About Us, Without Us, 31 WORLD DEVELOPMENT 571 (2003); Dan Atkins & Christie Guisti The Confluence of Poverty and Disability in THE REALITIES OF POVERTY IN DELAWARE 2003 – 2004

(2004) (available on: http://www.housingforall.org/rop0304%20poverty%20and%20disability.pdf). Although a recent survey by the World Bank shows that there are not enough accurate statistics about the relationships between disability and poverty, when there have been such statistics these relationships have been proven right. See: Jeanine Braithwaite & Daniel Mont, Disability and Poverty: A Survey of World Bank Poverty Assessments and Implications (2008).

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become disabled. Thus, whether one thinks that most, or many, disabled people are inherently unable to work, or that the social and environmental barriers prevent disabled people from working, both views demonstrate a close correlation, and sometimes even a causal link between having an impairment and becoming poor, a correlation which calls for special attention. There are, of course, many disabled people who are employed and earn their own living. Yet a considerable number among them are still poor, because of low wages, limited working hours, and high payments for disability related costs.9 Clearly, some disabled people may also support themselves using public or private funds that provide them with the required financial support (e.g., family resources, public assistance, social security benefits, and charities of all kinds); however, as statistics show, the unemployment rates among the disabled remain indisputably high, even after the introduction and enactment of disability rights laws.10 The challenge of breaking the link between disability and poverty lies at the heart of recent welfare reforms, and informs contemporary disability rights laws.

But disability is also an outcome of being poor.11 An insufficient standard of living can include health risks that lead to illness and impairment. Thus, for example, malnutrition, unsanitary conditions, and outdated infrastructures, which are more prevalent in poor areas, are recognized causes of disability. In addition, access to healthcare, rehabilitation and vocational services is a chief factor that ultimately determines the degree of disability remaining after exposure to a disabling event.12 This recognition lays the foundation for the second, more complex, understanding of the relations between poverty and disability. The latter considers the poverty-disability connection to be a product of social construction, rather than of chance and individual circumstances.

9 Martha Russell & Ravi Malhotra The Political Economy of Disablement: Advances and

Contradictions in SOCIALIST REGISTER 2002: A WORLD OF CONTRADICTIONS (L. Panitch & C. Leys eds., 2002); Asghar Zaidi and Tania Burchardt, Comparing Incomes when Needs Differ: Equivalization for the Extra Costs of Disability in the U.K. 51(1) REV. OF INCOME AND WEALTH

(2005), Yeo and Moore, Id. 10 For such statistics in Israel, see Dina Feldman & Eliyahu Ben-Moshe, People with

Disabilities in Israel 2007: A Comparative Report (2007). For a United States perspective on the matter, see JERRY MESHAW ET AL. EDS., DISABILITY WORK AND CASH BENEFITS (1996).

11 Yeo and Moore, supra note 8; Atkins & Guisti, supra note 8; Katherine Seelman & Sean Sweeney, The Changing Universe of Disability, 21 AM. REHABILITATION 2 (1995).

12 GARY L. ALBRECHT, THE DISABILITY BUSINESS 14 (1992); SUSAN WENDELL, THE REJECTED

BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 36-37 (1996); Regina Austin & Michael Schill, Black, Brown, Poor, and Poisoned: Minority Grassroots Environmentalism and the Quest for Eco-Justice, 1 KAN. J.L. & PUB. POL’Y 69 (1991).


A.2. The Constitutive Relations between Disability and Poverty

The second perspective is more critical towards the very boundaries and definitions of both categories. According to this view, disability and poverty are closely connected and co-constitutive, as is shown by the history of the modern welfare state as well as by recent accounts of disability rights struggles.13 In fact, the boundaries between disability and poverty have historically been a matter of constant negotiation, subject to persistent attempts to associate and disassociate between the two categories, to draw them together and to set them apart. Drawing the boundaries was fundamental to capitalism’s definition of the labor force and to welfare’s definitions of desert and need.14 As Deborah Stone has most clearly shown, the structure of many modern welfare states is rooted in the line drawn between the disabled and the nondisabled as a means of distinguishing between those who are exempt from work, and those who are required to earn their own income.15

The English Poor Laws, for instance, were a well-known historical attempt to distinguish the deserving from the undeserving “idle” poor, between those who were eligible for charity and protection of the state and those who were expected to work.16 Similarly, the debates in the Unites States over social security programs involved questions about the fluid boundaries between the two categories. Deciding the components of the definition was a major issue, particularly since an emphasis on medical versus socioeconomic constraints could broaden or narrow the scope of the population covered by the program.17 The link between the employability of disabled people and larger social processes was most vividly exposed during World War II, when similarly to women, disabled people, too, suddenly enjoyed higher rates of employment in the United States.18 As Harlan Hahn puts it, disabled people

13 Yeo and Moore, supra note 8; Jennifer Pokemoner & Dorothy E. Roberts, Poverty,

Welfare Reform, and the Meaning of Disability, 62 OHIO ST. L. J. 425 (2001).

14 N. GILBERT AND H. SPECHT DIMENSIONS OF SOCIAL WELFARE POLICY (2nd Ed., 1986).

15 DEBORAH A. STONE, THE DISABLED STATE, (1984).

16 STONE, Id., at Chapter 2.

17 In the end, there were three major types of programs: a work injury program that was enacted in 1935, a disabled workers program from 1956 that covered all contributing workers who paid their social insurance fees (SSD), and a general public assistance program that covered disabled people who could not enjoy social insurance programs. STONE, Id.; Williams H. Simon, Rights and Redistribution in the Welfare System 38 STAN. L. REV. 1431 (1986); Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities, 40 UCLA L. REV. 1341, (1993);

18 Harlan Hahn, Advertising the Acceptable Employable Image: Disability and Capitalism,in THE DISABILITY STUDIES READER 172 (Lennard J. Davis ed., New York ,1997)

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were, and still are, treated as part of the “industrial reserve army” for times of employment shortage.19

In Israel, too, the historical public assistance system (the Sa’ad), and later on, disability insurance, were engaged in drawing the boundaries between disability and poverty.20 The definition of disability in the disability insurance program employs a combined test that is meant to determine whether a person is able to reach a minimum income level, or if her income capacity should be officially reduced (50% or more).21 The test includes both a medical and a socioeconomic component, each of which represents a different rationale for the boundaries between the categories. The medical one assumes a static understanding of disability, which differentiates between those who due to their disability cannot work and those who are able to work, a reminder of the traditional understanding of the deserving poor. The second, socioeconomic component suggests a more flexible and dynamic understanding of disability, and therefore calls for an even closer examination of its definition and use of socioeconomic factors. In any event, the result of this test is clear: those who were not considered “sufficiently” disabled remained in the realm of mere poverty. In Israel, for instance, a person with 35% medical disability is not disabled in legal terms, at least not for the purpose of general disability allowances.22 If unemployed, this person might be able to enjoy general supplemental income, under the National Insurance program available to anyone who is unemployed and living in poverty.23

But not only general disability allowances are affected by the disability/poverty dyad. Other disability allowance programs, such as those for disabled veterans or disabled workers, are also subject to its impact.24 Unlike general welfare programs for disabled people, which are usually based on the welfare-related principle of need, other programs are based on principles of insurance or desert. Such programs are designed to benefit specific groups of disabled persons, whose disablement was a result of

19 Id.

20 Mor, supra note 6. For a short history of Israeli disability allowances regime, see Chapter B.

21 National Insurance Law (consolidated version), 5755-1995, Chapter 9 §§ 195-225B (originally passed as National Insurance (Amendment No. 13) Law, 5733-1973, 27 L.S.I 233 (1972-73)). The formal name for the disability insurance program is “Invalidity Insurance,” but I shall call it the general disability insurance, or disability insurance.

22 Interestingly, the level of medical disability required to be eligible for work injury insurance or disabled veterans allowances is much lower and is not accompanied by a working capacity test or socioeconomic standards.

23 Assurance of Income Law, 5741-1980, 35 L.S.I. 28 (1980-81).

24 See Chapter B for a short review of disability allowances in Israel..


circumstances in which the state had an interest and to which society is committed.25 Desert and insurance as grounds for benefits are unrelated to the person’s socioeconomic situation in determining whether one is disabled. Instead, they examine whether she had insurance (like social security) or whether the circumstances of her disablement fall under the relevant law’s well bounded definition of eligible persons (e.g., military- or work-related injury).26

Nevertheless, it is my contention that even desert- and insurance-based programs cannot avoid the tension between disability and poverty. As products of social welfare policy, they were motivated by poverty related concerns as well. While these programs do not explicitly consider their beneficiaries’ level of poverty, they typically provide them with benefits much better than those provided by social security programs, consequently allowing them to lead a more dignified life. As argued earlier, the motivation behind those programs was informed not only by whom their beneficiaries were, but also by whom they were not.27 The scheme of disability benefits was based on the view that there are groups of disabled persons that deserve to live with economic dignity: unlike “ordinary” disabled people, these meritorious groups should live neither in poverty, nor on the edge of the poverty line. Implicit in this scheme of benefits is the notion that the beneficiaries of the general disability program are not deserving of economic dignity and security. Although a distinction is drawn between the disabled and the general poor, it is marked by a very thin line, which is essentially minimal and fragile. Indeed, society supports the disabled, allowing them to live, but their survival is craftily maintained below the poverty line. Consequently, for the privileged groups of disabled people, becoming poor is in fact the ultimate mark of becoming “truly” disabled. I therefore suggest that unlike general disability allowance programs, which are usually similar to public assistance programs, the programs for disabled workers and disabled veterans can be understood as sincere attempts, not only to break the link between disability and poverty, but also to unravel the ties that bind the disabled together, as they create an artificial separation between the deserving and the undeserving disabled, between those who deserve economic dignity and those who do not.

More recently, newly enacted disability rights laws have introduced a different vision regarding the place of disabled people in society, a place that would be liberated from poverty and even from social welfare. These laws show that the relationship between disability and poverty has been the

25 See John Gal, The Perils of Compensation in Social Welfare Policy: Disability Policy in

Israel, 75 THE SOCIAL SERVICE REVIEW, 225, 235 (2001); Mor, supra note 6.

26 Mor, supra note 6.


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concern not only of the welfare imagery that has been occupied with disability and poverty, but also of the rights imagery which has created new and, in some sense, revolutionary means to realize the vision of a more equitable society. Laws against employment discrimination of disabled people and rules concerning accommodations in the workplace have been the primary mechanism through which this has occurred. In one provocative article, Samuel Bagenstos even argues that the Americans with Disabilities Act (ADA) was marketed and perceived by the public as a welfare reform, since the goal was to make disabled people more productive and self-reliant and to take them off welfare rolls and put them on payrolls.28 The actual goal of disability rights activists has been, of course, much broader, as they hoped to transform society and to alter the image of disabled people from dependent, inferior, and useless, to independent, equal, and productive members of society. However, in the aftermath of the new legislation, high unemployment rates persisted and the number of disability benefit recipients grew larger,29 proving that non-discrimination provisions were insufficient to overcome the long history of discrimination and exclusion of disabled people.

This study will demonstrate that the strategic shift from welfare concerns to disability rights resulted in a neglect of disability allowances. Based on the case study of disability protests in Israel and a review of additional disability rights schemes, I argue that the underlying reason for such neglect was an implicit aspiration to break away from the historically tight link between disability and poverty.

A.3. Group Consciousness and Inter-Group Relations

The dis ability-poverty predicament evokes an additional set of issues that are related to the realm of group consciousness and inter-group relations.30 Separating disability from poverty generates a politics oriented towards the inner group, which encourages disabled people to find what unites them as a group and what distinguishes them from others. It allows disabled people to distance themselves from pity, misery, and indigence, and instead dedicate their efforts to fostering activism in the realms of disability pride, identity, and culture. Yet this direction contributes to the creation of more rigid

28 Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 WM. &

MARY L. REV. 921, 930-52 (2003) (Bagenstos shows how the ADA was warmly accepted by policymakers because it was understood as a welfare reform that would reduce welfare recipients, a view that is problematic because accommodations are not enough of a measure to overcome the long history of exclusion of disabled people from the labor force).

29 JERRY MESHAW ET AL. EDS., DISABILITY WORK AND CASH BENEFITS (1996); KALMAN RUPP

AND DAVID STAPLETON EDS., GROWTH IN DISABILITY BENEFITS (1998).

30 These concerns seem to be beyond the scope of this paper, but at the same time, they cannot be totally ignored.


boundaries between disabled people and other social groups. As Nancy Fraser so eloquently explained, such inward group-based politics is part of a “politics of recognition” climate, in which identity-based social movements distance themselves from the politics of distribution.31

The immediate result of inward group-based politics in this case is the prevention of a unified front with other social groups fighting poverty and, concurrently, an even greater denial of poverty as a continuing concern for disability activism. Conversely, the linking of disability and poverty through intra-group politics, obscures the boundaries between disadvantaged social groups, thus allowing for a greater accumulation of power through alliances and coalition building.32 This is needed, not only because – as the Marxist-Socialist argument goes – the most fundamental power structure in society is that between capital owners and the capital-less proletariat, nor is it motivated by the fact that all disadvantaged groups are disproportionately poor. Rather, the intra-group association is essential primarily because the intersections among the various identity axes allow the inclusion of a variety of social categories, including gender, race, and ethnicity, all of which are also inexorably constitutive of and constituted by poverty.33

The issue of coalition-building with other groups in the realm of disability allowances is particularly challenging. It requires comparing the forms of poverty that disabled people experience with those typical of other groups. It also questions the implicit meaning of a struggle for dignified disability allowances: Are disabled people the only group that deserves to live above the poverty line, while the other poor remain below? This latter concern is interesting, because it returns full circle to the critique of the invention of disability allowances as a policy that creates a distinction between the deserving and the non-deserving. Yet to question the origins of this distinction is to question the need for disability allowances altogether. Instead, as this study suggests, other justifications should be developed in order to maintain this divide (assuming that it should be maintained). One incontestable differentiating criterion may be the different living expenses that disabled people must bear, due not only to their particular impairment but also to the discrimination and exclusion imposed on them by society.

31 NANCY FRASER, THE RADICAL IMAGINATION: BETWEEN REDISTRIBUTION AND

RECOGNITION (2003); NANCY FRASER AND AXEL HONNETH, REDISTRIBUTION OR RECOGNITION? A

POLITICAL-PHILOSOPHICAL EXCHANGE (2003).

32 Malhotra Ravi, The Politics of the Disability Rights Movement, 7(3) NEW POLITICS 65 (2001).

33 Pokemoner & Roberts, supra note 13 (claiming that disability and illness are distributed in ways that reflect gender, racial, and economic inequalities).

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The circularity and the paradox inherent in the argument for disability allowances create a predicament for the disability community. The issues informing this predicament are analyzed in the following section. They infuse the debate on disability allowances and are infused by it. Clearly, these questions concern both disabled individuals as well as the disabled community as a collective seeking both inter- and intra-group solidarity.

B. A History of Disability Allowances in Israel

A short historical review of the Israeli context, which is the locus of this inquiry, is required at this stage. Through the years, Israel developed three major models of disability allowances, which include eighteen separate programs for different groups of disabled people.34 The first model was based on the benefits for disabled veterans. The Invalids Law, 1949,35 was the first welfare law in Israel and it was passed one year after the establishment of the State of Israel. The second model was based on the Work Injury Program of the National Insurance Law, which was passed in 1954.36 The general population of disabled people who needed financial support received public assistance benefits (Sa’ad) until 1974, when the Disability Insurance Program took force. The different programs represent different rationales and accord different benefit schemes.

The Invalids Law, based on principles of desert,37 established a comprehensive system of in-kind and in-cash benefits, including a specially-developed system of social services. The Work Injury Program was based on principles of insurance and desert. It was not a general program for any worker who paid social insurance and became disabled in any circumstances, but rather a program solely for those workers whose injury was work-related. The individuals in this group enjoyed a basic allowance that was adequate in most cases (depending on one’s previous income) as well as additional related allowances and services that were not very well-developed but allowed some support. The Disability Insurance Program, which stands at the center of this study, was enacted only in 1974 as part of a general reform in Israel’s social

34 For detailed reviews of these models, see: URIEL PROCACCIA & ARIE L. MILLER, THE

RIGHTS OF THE DISABLED IN ISRAEL: BASIC ISSUES 12 (1974) (Hebrew); Gal, supra note 25; Mor, supra note 6.

35 Invalids (Pension and Rehabilitation) Law, 5709-1949, 3 L.S.I 119 (1949) 1959 law. In 1959, a consolidated version was published: Invalids (Pension and Rehabilitation) Law [Consolidated Version], 5719-1959, 13 L.S.I. 315 (1958-59) (hereinafter: the Invalids Law).

36 National Insurance Law, 5714-1954, 8 L.S.I. 4 (1953-54).

37 Gal, supra note 25. In this article, Gal provides a detailed account of the relationships between three allocative principles (desert, insurance and need) and their application to the various welfare programs for people with disabilities in Israel. To read more on the three principles, see GILBERT & SPECHT, supra note 14.


welfare policies. It was based on the principle of need and accordingly granted a minimal allowance, not very different from that afforded by the public assistance program that preceded it (20% and later on 25% of the average wage in Israel). The law also established a mechanism for obtaining an attendance allowance and, later, a mobility allowance was added. The law also provided rehabilitation services, a branch that was not well developed.

During its early years, Israel was particularly slow to develop social services for the general population of disabled people. As a result, a proliferate scene of voluntary private sector organizations evolved which, filling the role overlooked by the state, developed its own services. These organizations were usually funded by Jewish contributions from abroad and grants from the state. During that era, the laws relating to such services were mainly protective laws, which very poorly regulated the treatment of individuals who lived in residential institutions or who were hospitalized for psychiatric care.

During the 1980s, parents of children with disabilities and disabled people themselves began challenging the social structure that effectively rendered disabled people marginal and useless. That process led to the increased activities of the 1990s, which culminated in the enactment of the Equal Rights for People with Disabilities Law, 1998 (ERPWDL). This article focuses on that later era, during which so much had shifted in terms of disability activism. As the following discussion reveals, it was an era marked by coalition building and solidarity in action, on the one hand, as well as by conflicts, on the other hand, regarding the direction the movement should take, the definition of the most important and pressing issues around which to unite, and the ways to promote them.

In the following I suggest my own observation, based on fieldwork conducted during 2002. My research examined the conflicts and tensions that existed then among the disability community in Israel with regard to disability allowances in general and to the disability protests, in particular.

C. Disability Allowances as Hope: A Social Welfare Perspective

C.1. The Disability Allowances Protests

Understanding the atmosphere during the 1999 and the 2001 sit-in strikes and their impact requires further elaboration. The 1999 strike erupted spontaneously and was soon a success. It started with a spontaneous initiative of a group of individuals with mobility impairments and lasted 35 days.38 The

38 On the strike and its achievements, see, In Struggle – The Bulletin of the Disabled Union,

Vol. 1, March 2001 (a bulletin published by the Campaign for the Handicapped, an organization that was formed during the 1999 strike and that led the second strike, as well).

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impetus was disappointment with the Equal Rights for Persons with Disabilities Law (ERPWDL), which had not yet brought the anticipated changes, and in particular, the increasing economic hardship, which was linked to the inadequacy of disability insurance allowances.39 While the strike started with a broad agenda that included issues of accessibility, housing, and the implementation of the ERPWDL, these issues quickly dissipated. Eventually the strike was essentially about disability benefits, i.e., disability insurance stipends, mobility allowances, and personal attendance allowances, their low rates, narrow scope, and outdated structure. It was also about the requirement of choosing between mobility and personal attendance allowances even though each was related to a different set of needs.40 The strike ended with great achievements for the activists, as the Prime Minister and the Ministry of Finance surrendered to their demands. It was the first time that a street protest over social welfare issues had succeeded. It yielded significant changes in mobility and attendance allowances and a rise in disability insurance payments for the “severely disabled.”41 During the strike, a new organization was established, the Campaign for Handicapped Persons in Israel (hereinafter: Campaign for the Handicapped), which perceived the strike’s achievements as only a first step in a broader effort to improve the living conditions of disabled people. Indeed, the continuing effort of the Campaign for the Handicapped produced a second strike.

The 2001 strike lasted 77 days.42 On the agenda was a general reform in disability insurance that would benefit the majority of disabled people who live on disability insurance and not just the few who are “severely” disabled. This time, the goals were few and clear, though still steep : to bring disability insurance on par with minimum income rates (including an allowance for people whose benefits were below the minimum income rate), to allow disabled people who had reached pension age (60 or 65) to receive both disability insurance and old-age pensions and other disability related

39 Disability insurance allowances were not only insufficient in the first place, but also

had not been updated over more than two years to match the rise in the standard of living, and therefore suffered continuing deterioration. On the background to the strike, see Einat Fishbein, The disabled are opening a struggle on their rights: we have nothing to live on?, Ha’aretz, 9/29/1999. On the disappointment with the ERPWDL I received information in an interview with Simha Benita.

40 Fishbein, Id.

41 In Struggle – The Bulletin of the Disabled Union, Vol. 1, March 2001, at 8-11.

42 On the strike and its achievements, see In Struggle – The Bulletin of the Disabled Union, Vol. 3, March 2002.


benefits,43 to equalize healthcare benefits and services among all disabled people (bringing them on par with benefits rendered to disabled veterans and work injured), and to update mobility allowances.

The pubic support for the strike was accompanied by extensive media coverage. Many disabled people who were not part of the organizing group heard about the strike through the media and joined the strikers or supported them from afar. In addition, non-disabled people who championed the strikers’ cause joined them in their tent, bringing food and other forms of assistance. Thus, for example, a group of students studying Chinese medicine came from Tel Aviv to the capital to give free massage treatments to the strikers, and some of Israel’s leading singers participated in a “live aid”-type concert for the disabled. The strike also prompted newspaper columnists to criticize Israel’s unjust social and economic policies, including, for instance, the government’s preference for funding settlements in the occupied territories over the needs of citizens located well within Israeli borders.44

After a longer and tougher struggle than the previous one had been, again the strike ended with achievements. In the agreement that was signed with the government at the end of the strike, some of the strikers’ demands were partially accepted. The agreement included a 20% general increase in disability allowances (instead of the 100% that they demanded), a promise to grant disability allowances to people whose income was below the minimum rate, a guarantee that disabled benefits would not be declined upon reaching pension age, and a commitment to appoint a public committee to study and offer operative suggestions to improve the disability-related social welfare policy.45

The achievements of the strikes were remarkable. The strikes were understood as a spectacle of solidarity both among disabled people as a community and between disabled people and the public at large; as a historical triumph of a powerless group in society over the powerful bureaucracy; as a unique moment in which social welfare became an issue in every home, and disabled people became visible, assertive, and relevant in national politics.46 One of the strengths of the struggle was its emotionality,

43 Before then, a disabled person would switch from disability insurance to old-age

pension which was many times lower than the disability allowance, and was denied other benefits (e.g., mobility and attendance allowances).

44 Anat Gov, The Public’s Right to Know, 12/26/01, Ynet online newspaper (claiming that “with the money that we have we could have been a state where the disabled are smiling”).

45 In Struggle – The Bulletin of the Disabled Union, Vol. 3, March 2002, at 12-14.

46 Neta Ziv, People with Disabilities – Between Social Rights and Existential Needs, in ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN ISRAEL 813, (Yoram Rabin and Yuval Shany eds., 2004); Rimmerman and Herr, supra note 2 (naming their article The Power of the Powerless).

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and its acute relevance to the participants’ daily lives and economic survival. Yet as we shall see, for the same reason, the strikes were also criticized for using the politics of mercy and pity.

C.2. The Role of Disability Allowances in Disabled People’s Lives

For the organizers of the campaigns, disability allowances were the most pressing issue, while civil rights could wait for later stages in the overall struggle; thus, civil rights were not entirely beyond the scope of this struggle, but their priority was low. In the 1999 sit-in strike, for instance, disability rights were included in the initial agenda but were soon abandoned. Top priority was given to disability allowances due to their fundamental role in ensuring disabled people’s very existence –their economic security and physical survival. Thus, Arie Zudkevich said: “Everyone agreed that allowances were the first priority – first of all: to stay alive.”47 Simha Benita, one of the campaign organizers was quoted in an interview that announced the launching of the first strike: “The ground is burning under our feet … we have nothing to live on, and nobody notices us. Indeed, it is not easy to take the disabled outside their homes for a demonstration, but this time we are going to fight and bring hundreds [of people] until we get attention.”48 Momo Nekave, another prominent activist, was cited as saying: “Our people are desperate. Our struggle is about the right to life, because in the current situation many are hardly alive.”49

The formulation of disability allowances as guaranteed by the right to life resembles a similar attempt in the United States to formulate welfare benefits as rights. That view was promoted by the welfare rights movement that flourished for a short while during the 1960s. As early as 1955, A. Dalefield Smith had developed the approach that viewed welfare benefits as stemming from the fundamental “right to life,” based on the Fourteenth Amendment to the American Constitution.50 That argument failed, and the welfare advocates turned to due process rights as a way of ensuring benefits for indigent people (using Charles Reich’s theory of the “New Property”).51 The welfare rights movement enjoyed success in courts during the 1960s, and

47 Interview with Arie Zudkevich. Emphasis added.

48 Cited in: Einat Fishbein, Einat Fishbein, The disabled are opening a struggle for their rights:: We have nothing to live on, Ha’aretz, 9/29/1999.

49 Cited in: Ruti Sinai, How Do You live on 1,740 NIS a Month?, Ha’aretz, 2/20/2002 (emphasis added).

50 A. DELAFIELD SMITH , THE RIGHT TO LIFE (1955).

51 For a chronicle of the struggle, see Edward v. Sparer, The Right to Welfare, in THE

RIGHTS OF AMERICANS 82 (Norman Dorsen ed., 1971). For a chronicle of the movement, see MARTHA DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT, 1960-1973 (1995). For Reich’s renowned article, see Charles A. Reich, The New Property, 73 YALE L. J. 768 (1964).


then its influence declined without leaving much impact on the United States rights discourse.52

For local activists, the sit-in strikes were a spectacle of hope, solidarity, and strength. As Yoav Kraim, the spokesperson of the Campaign for the Handicapped wrote in their bulletin:

After long years of walking in the desert with no pastor, we have finally reached the gates of the Promised Land. We can now state that the disabled populace has left behind any last remains of paternalism and represents itself with dignity and with no mediators. …

… Our two most important achievements: one – the power of working together …, and second – the public’s understanding of the needs of all disabled: the mentally disabled, sensory disabled, physically disabled, and cognitive disabled.

The public knows today that a disabled person is a human being too, bearing rights.

We too share the image of God. … Furthermore, the disabled populace is leaving its “closet” behind today and starting to lift its head. The shame that society has granted us is disappearing, and we now march to the light of human dignity. This light will guide the State of Israel ... to become a society that manages its economic affairs as well in terms of values and fundamental needs. In this way, we have provided the entire public with renewed dignity.53

Organized by disabled people and conducted in the streets, the sit-in strikes represented a grassroots struggle, in which disabled people forced society to see them, address their hardships and, consequently deal with its own responsibility for past injustices. For them, disability allowances indeed concerned the “here and now;” the immediate and basic issue that shapes their life conditions; nevertheless, their grand vision was one of rights, dignity, participation and integration in the labor market.

Gradually the Campaign for the Handicapped formulated its own demands for rights. After the 2001 sit-in strike, its activists increasingly talked about allowances as rights, as a mechanism that aims to close the gap between

52 Sparer, id; DAVIS, id.

53 In Struggle – The Bulletin of the Disabled Union, Vol. 3, March 2002, at 15 (emphasis omitted).

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the living expenses of disabled and nondisabled individuals. The size of the gap, they argued, depends on the level of services provided by the state. Moreover, they advocated the acknowledgement of

disability allowances [as] an investment that allows the disabled person to secure his unique needs, to integrate into the life of the country and contribute to it. We need a new balance between disability and wage-earning so that the disabled and the state will pursue the integration of the disabled as an active and productive worker on the one hand, and so that the quality of life of the disabled will not decline.54

In the agreement with the government at the end of the 2001 sit-in strike, the organizers insisted on a provision that guaranteed the establishment of a public committee. One of the committee’s major expected tasks was to discuss ways to encourage and provide incentives for disabled people to work and earn their income, while still ensuring the existence of mechanisms that guarantee easy transition to economic independence (e.g., eligibility for an allowance if income is below minimum standards). The Campaign for the Handicapped had indeed insisted on the establishment of such a committee and participated in its proceedings. The Public Committee to Review Matters Concerning Disabled People and to Advance their Inclusion in the Community (also named the Laron Report, after Judge Laron, the head of the committee) published its report in March 2005.55 Yet the recommendation of the Laron Report has yet to be implemented.

54 A memorandum submitted to the government by the Campaign of the Handicapped

People in Israel regarding the establishment of a public committee, as part of the agreement that was reached at the end of the 2001/2002 strike. Dated May 9, 2002 (on file with author).

55 See the full report on: http://users.tapuz.co.il/forums/laron-x.pdf. A comprehensive analysis of its recommendations is beyond the scope of this project at this point. The government website reported that: “The Committee decided to concentrate on recommendations that would lead toward improving the quality of life of people with disabilities and to their inclusion in society and employment. In this context, the Committee focused on encouraging employment, which constitutes a basis for improvements in all areas. The members of the Committee believe that the disabled must be afforded a wider degree of participation as a solution to their problems and indicate the need for policies based on consideration and the promotion of autonomy.” As this text already reveals, from a disability critique perspective, a basic fault of the report is the understanding of employment as a problem of the disabled person, and not a social disablement. Thus, the report develops advanced mechanisms to support the entrance of disabled people to the labor market, but ignores the societal aspects of employment discrimination and other structural problems. A second issue, which stands at the center of other disabled people’s criticism of the report (who already organized an anti-Laron Report campaign), is that the levels of disability allowances had basically remained the same, i.e., at poverty lines. Although, according to the report,


Ironically, the Campaign for the Handicapped encountered much criticism regarding its role in the report proceedings. It was argued that its representatives had deserted the goals and the people they represented, by participating in the committee.56 The heated debate surrounding the Laron Report again reinforces the argument regarding the central role that disability allowance plays in disability politics in Israel. The following are illuminating statements regarding the major charges of the opponents to the Laron Report:

The Report perpetuates the historical injustice: the link between allowances and wage income. We argue: it is the right of a disabled person to work and earn wages with dignity, without losing his allowance, which is the existing situation among other sectors of the disabled. Once and for all, this link should be broken, or, alternatively, all disability allowances and eligibility criteria should be put on equal grounds.57

The remaining major challenge would be to articulate and to structure these allowances not as compensation for being disabled but rather as a way for society to pay for its major contribution to processes of disablement and exclusion.

people who go to work will not lose their benefits at once, the reform does not improve the economic situation of people who live on disability insurance. The opponents of the report admit its importance in some aspects but argue that underlying it is an aspiration to keep the expenditure on disability allowance low and to create incentives to work that might lead people to lose their benefits (e.g., the requirement to participate in rehabilitation program as a condition for receiving benefits). For a fully developed critique of the report, see the following, written by Kobi Cohen, a leader of the struggle against the report and the spokesperson of Keren organization (Keren – K’tu’ei Raglayim Nilchamim (Leg Amputees Fight Back), entitled: The Laron Report – Why it is Important to Stop its Implementation (available at: http://mate.ios.st/IOS/Users/mate.ios.st/Files/3546613314.pdf).

56 For the content of the opponents’ critique, see Id. This debate among disabled people concerning the report began in the online forum on Tapuz.co.il, and gradually gained momentum, leading to a new alliance of disabled people who oppose the report who now have their own website and who even initiated a new strike of disabled people in October 2005.

See e.g., a letter sent by the Roof Association for the Organized and Unorganized Handicapped to the Prime Minister, Ariel Sharon, explaining their objections to the report and complaining for not being represented or involved in the Committee’s proceedings, dated 7/31/2005. (Available at: http://www.center4all.com/BuildaGate4/portals/disable/imagesP/sub23/237628558.jpg).

57 The Laron Report – Why it is Important to Stop its Implementation, supra note 55, at 9. This latest development in disability activism not only offers a more radical view of disability allowances, but also questions the disparities among disabled people and expose them to public discussion.

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D. Disability Allowances as an Evil – A Disability Rights Perspective

The view of disability allowances as “evil” is not explicitly expressed in any public document or speech of Israeli disability rights advocates. Nevertheless, as I shall soon demonstrate, its absence from the agenda is telling. The disability rights formula that has evolved in Israel, has followed the American example (the Americans with Disabilities Act, or ADA), while inserting Scandinavian influences and local experience.58 This local rights formula was consolidated into the Equal Rights for People with Disabilities Bill that was presented to the Israeli parliament (Knesset) in 1996.59 The initiative to have a comprehensive disability rights law came earlier from the first disability rights organization in Israel, Bizchut, which was established in 1992 by a group of civil rights advocates and parents of children with disabilities, mainly children with developmental disabilities.60 In the process of drafting the law, which began in 1994, Bizchut sought to involve many existing disability organizations and professionals. It was a way to include their perspectives and experiences into the new law as well as to recruit them to the new struggle. Several of these organizations indeed became enthusiastic and eventually formed a coalition with Bizchut to promote the enactment and the enforcement of the Bill and the law that was eventually enacted.

Following the submission of the Bill, a governmental Public Committee for a Comprehensive Review of the Legislation Regarding People with Disabilities was nominated to conduct a thorough investigation regarding the legal and social conditions of disabled people in Israel. The Public Committee’s Report was presented to the government and to the public in July 1997.61 The first part of the Equal Rights for People with

58 Neta Ziv “Disability Law in Israel and the United States – A Comparative

Perspective” 1999 Israel Yearbook on Human rights 171 (1999); Stanley S. Herr, Reforming Disability Nondiscrimination Laws: A Comparative Perspective, 35 U. MICH. J.L. REFORM 305 (2002) (examining the effect of the ADA on disability reform in Israel, the United Kingdom and Sweden).

59 Equal Rights for People with Disabilities Bill, 5756-1996, H.H. 628.

60 In a press conference announcing the establishment of Bizchut it was declared: “For the first time in Israel, an organization has been established to promote the interests and rights of people with disabilities in the spirit of the values of the Association for Civil Rights in Israel, and to bring the principles of integration within the community and of anti-discrimination into practice … “Bizchut” wishes to eradicate the prejudices and paternalism towards populations with special needs, in order for them to be an integral part of Israeli society, Bizchut ve-lo be-chesed (as a right rather than as charity).” The opening and concluding paragraphs of the Announcement establishing Bizchut, at the above press conference, 12/5/93.

61 The Report of the Public Committee for a Comprehensive Review of the Legislation Regarding People with Disabilities (1997) (hereinafter: the Public Committee Report or the Report). In the following I shall refer to the report in two ways: I shall refer to the analysis, data, and recommendations of the report as the Public Committee Report, and I shall address specific provisions as the ERPWD Bill.


Disabilities Law was enacted in 1998. It involved an extensive mobilization campaign and was celebrated by its supporters as a revolutionary event.62

In the discussion below I analyze the disability rights discourse that evolved in Israel during the 1990s. The analysis will not focus on the ERPWDL alone, but rather will examine the Law together with the Bill and the Public Committee’s Report as a series of legal documents that together encompass a broader picture of the disability rights vision in Israel during that era.63

D.1. Equal Rights for Disabled People – A Means to Transform Rights and Welfare

The basic elements of the ERPWDL and the approaches that guided its drafting reveal a progressive formulation that aspired to transform the dominant meaning of both welfare and rights. The rights model that the drafters designed was based on what they identified as two dominant approaches to progressive disability legislation: non-discrimination and adequate services.64 The first component referred to the Anglo-American approach that emphasized non-discrimination tools and relied, especially in the United States, on the legacy of the civil rights movements. The second component was a lesson from the Scandinavian approach, which focused on the state’s duty to provide adequate services, and the complementary entitlements that individuals have in their relationships with the state to receive those services.65 The drafters saw this combined model as representing a better understanding of the nature of disability and of equality for two main reasons. First, it recognizes that achieving equality and rights is possible only when individuals have the means and conditions to fulfill and enjoy these

62 Ariela Auphir and Dan Orenstein, Equal Rights for People with Disabilities Law, 1998:

Emancipation at the End of the 20th Century, in MENACHEM GOLDBERG BOOK 42, 87 (Aharon Barak et al eds., 2002).

63 The ERPWDL eventually included only four parts of the original proposal: general principles, accessibility in public transportation, employment equality, and the establishment of Equal Right Commission for disabled people, therefore it cannot be considered as representing the entire disability rights advocates vision. However, I will refer to the ERPWDL where the discussion involves specific provisions that were enacted into law.

64 Ziv, supra note 58, particularly at 176-177. Ziv emphasizes the innovativeness that lies in such a combined approach and argues that it can serve as a model for disability rights laws. Id., at 201-202. See also The Public Committee Report, supra note 61, at 19; Auphir and Orenstein, supra note 62, at 56; Herr, supra note 58. The ERPWD Bill included a specific chapter dedicated to Special Needs (§35-38). A stricter translation of the original concept of adequate services would be something like “appropriate-response to special needs” (see the ERPWDL §1, cited supra next to note 19).

65 On the Swedish model of disability, see Ziv, Id., at 194-197; Herr, Id.

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rights,66 and second, it acknowledges the unique relationships between autonomy and dependency in disabled people’s (and in all persons’) lives.67

The result was a unique mixture of rights and entitlements, of negative and affirmative provisions, of concrete yet broad claims that disabled people can make while using the law, as the following examples demonstrate. A typical provision in the ERPWD Bill started with declaring an abstract right, followed by a few concrete instructions about the operation of that right, and concluded with detailing the concrete roles and duties of the state in providing certain services to ensure that this right is fulfilled. The Employment Chapter can serve as an illustrative example.68 In addition to anti-discrimination and reasonable accommodations provisions, the Law also entails a mechanism of appropriate representation for disabled people in public and private labor markets. Finally, a fourth element requires the Minister of Labor to “initiate, develop, and prepare” employment and rehabilitation programs to encourage the integration of disabled people into the general labor market.

The ERPWD Bill provided specific instructions regarding almost every aspect of disabled people’s lives, including accessibility, employment, education, culture and leisure, health, housing, and more, which together solidified its vision of equality and dignity. The Bill was especially innovative in the model of rights that it created and particularly the place of social rights within that model.69 The drafters of the ERPWD Bill were very creative, detailed, and concrete in redefining the relationships between specific social welfare issues and rights. Thus, the Bill included provisions regarding access to healthcare; arrangements supporting housing in the community with personal assistance allowances; an education system capable of addressing each child’s special needs; rehabilitation and vocational training programs as part of the right to employment, as well as additional services that support participation in the labor market; and a separate Special Needs section that was understood as allowing and maximizing the utilization of rights. The latter included three provisions: benefits and discounts in the acquisition of special equipment necessitated by a person’s impairment; assistance in making decisions concerning one’s own life, including entitlement to

66 The Public Committee Report, supra note 61, at 3.

67 Ziv, supra note 58, at 201.

68 The Employment Chapter was fully included in the 1998 law, see the ERPWDL § 8-18. On the ERPWD Bill, see the Public Committee Report, supra note 61, at 30-41 (ERPWD Bill §10-13B). For a review and analysis of that section, see Auphir and Orenstein, supra note 62, at 63-72.

69 For a detailed review of the status of disabled people’s social rights, see Ziv, Between Social Rights and Existential Needs, supra note 46.


professional aid and consultation for that purpose (as viable alternatives to restrictive guardianship arrangements); and an entitlement to mobility allowance.70 Therefore, it is particularly revealing that missing from the Bill’s content was a reformulation of disability insurance or, more generally, of disability allowances. The significance of this missing part was profound, as it overlooked a pressing need of disabled persons and an important arena where disability was constituted. But most importantly, the inevitable result was that the issues included were legitimized while the excluded ones were not, or were even de-legitimized.

D.2. The Equal Rights for People with Disabilities Law – Avoiding Disability Allowances

A close reading of the ERPWD Bill and the Public Committee Report reveals that the local disability rights formula avoided the issue of social insurance, both as a measure of economic security and as a source of human dignity for disabled people. In fact, this is one of the very rare issues with legal implications that was totally abandoned in the process of formulating disability rights.71

It appears that while in general both the Bill and the Report espouse in-kind benefits (i.e., providing actual services), they also introduce an implicit distinction between two types of cash benefits (i.e., direct payments): those intended to cover specific, impairment-related needs, and those that concern general living expenses. The first type relies on a link between the readily apparent disability and the particular needs it generates. This category was incorporated into the rights formula and was in fact celebrated as part of its “adequate services” component. Disability rights advocates justified these benefits as a means to realize rights that were otherwise useless for disabled people and would therefore have remained abstract. The Housing in the Community Chapter, for instance, included two such provisions. One was the newly designed entitlement to personal assistance (that was to replace attendance allowance), which intended to guarantee independence and dignified living for disabled people, both at home and outside.72 A second provision concerned state funded financial assistance for housing, which

70 Clearly each one of these provisions can be easily linked to a specific right: special

equipment to healthcare and fostering autonomy, mobility to freedom of movement, and decision-making to liberty, human dignity, and privacy, or even to the particular right to make decisions that the Bill created and that were already adopted into the ERPWDL.

71 Another one is sexuality and family life, a growing concern particularly among parents of people with developmental disabilities.

72 The Public Committee Report, supra note 61, at 59-65.

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aimed to provide those who could not otherwise afford housing possibilities other than institutional care.73

The second type of cash benefit is the focus of this study: it concerns basic disability allowances for general living expenses, as provided by major disability welfare laws (e.g., the Invalids Law benefits to disabled veterans, the Work Injury Program, and the general disability insurance program). This basic allowance is determined based on one’s level of disability, but is not linked to any particular need. The structure, definitions, and levels of this allowance are different for each program; however, in none of the programs is there any detailed reference to the expenses the disability allowance is meant to cover. It is clear that they are meant to cover daily expenses, some of which might be related to the disability, but mostly it refers to basic living expenses. This is particularly evident in the case of the general disability allowance available to unemployed disabled people, which provides only very meager benefits.

The distinction between the two types of cash benefits reflects society’s willingness to acknowledge and cover disability-related costs (together with in-kind benefits) in contrast to its decision to relegate most other expenses to the personal realm of individual responsibility. The central question then becomes what are the extra expenses that would make it possible for disabled people to function in society, and whose responsibility is it to bear these added costs?

D.3. Explaining the Absence of Disability Allowances

Clearly, then, disability allowances were excluded from the ERPWD Bill. None of the Bill’s versions says anything about a right to economic security, to social insurance, or to a minimum standard of living, to name a few possible options.74 The question is why. It is clear that cash benefits were not rejected altogether – only those that were not linked to a specific disability-related need were rejected. The inevitable conclusion is that cash benefits were not meant to cover needs which are not disability-related, such as food, clothing, furniture, or cleaning supplies – the kind of universal needs that all people share and that advocates for poor people demand. This realization suggests that here the disability/poverty dyad comes into play. It is the claim of the current study that the implicit distinction between disability-related needs

73 ERPWDL §25(b); The Public Committee Report, Id., at 59-65 and 69 (finding that

institutional care is the norm under current state practice).

74 One such option was available in the International Covenant on Economic, Social and Cultural Rights. The Covenant’s Article 9 provides: “The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 (emphasis added).


and poverty-related needs did not allow a formulation of adequate disability allowances. The mutual correlation between disability and poverty, although publicly recognized and acknowledged, was ignored.

One extreme explanation is that the Bill was essentially seeking to abolish disability insurance; another, less provocative option is that the Bill established a rigid separation between social security and disability rights as two distinct spheres.75 An illuminating provision in this context is paragraph 13(a)(6) to the Bill, which establishes a mechanism for supplementing disabled people’s income when it is lower than the acceptable minimum. This is a hybrid provision in which a working disabled person receives general cash benefits that cover no particular need, but nevertheless are considered part of a rights-based employment arrangement. The Employment Chapter in the ERPWDL eventually did not include this provision, but in 2002 regulations were issued under the Minimum Wage Law, 1987,76 which enable an employer “to pay people with disabilities a lower wage if their level of output is significantly lower than that of employees in a similar position, while at the same time protecting people with disabilities from exploitation.”77 Surprisingly, these regulations passed without the supplemental income component, and yet still enjoyed the support of major disability rights activists. This provision, I suggest, represents the vision of disability rights advocates in which all disabled people work, and in extreme cases their wages are accommodated. In this manner, it acknowledges, or maybe even embraces, the persistence of the existing economic order and its occupation with productivity in terms of efficiency, which are extended to the person who works yet cannot earn sufficient income.

The primary explanation for this neglect, as expressed by some disability advocates, is based on the claim that this struggle is not to be handled by means of ordinary legal methods of litigation and legislation; instead, it should emanate from the bottom-up, and as such it should be initiated in the appropriate arena, that is, in the streets.78 While this argument

75 Absence of attention to social welfare was present in additional sections of the Bill.

Thus, the provision concerning accommodations of legal proceedings did not address proceedings before administrative tribunals, and the accessibility part (§14-§24) paid no special attention to access to social welfare services (although it did specify a right regarding access to healthcare).

76 Minimum Wage Law, 5747-1987, S.H. 68.

77 Minimum Wage (Accommodated Wage for a Worker with Disability with Reduced Working Ability) Regulations, 5762-2002, K.T. 460.

Quotation taken from Bizchut’s Ten Year Bulletin, at 30. Available online: http://www.bizchut.org.il/eng/upload/publications/Tenyearenglishfinal.pdf

78 This was the kind of reasoning which the lawyers who founded Bizchut were expressing (interviews with Neta Ziv and Ariela Auphir). In an article that Ziv published

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presents a sufficient explanation from a tactical perspective, it avoids the central issue of the disability-poverty dyad. If the issue were a matter of strategy and not of essence, there would have been a clear understanding that disability insurance constituted an integral part of disability rights. Then the central struggle would have focused on prioritizing living allowances within the disability rights agenda. The absence of such recognition indicates that a more critical account is needed.

It seems that the simplest answer to the question of why disability allowances were abandoned in the rights formula is that they were considered part of the old world of charity that should be abolished, the epitome of anachronistic social welfare policy. If considered a mere expression of goodwill, this allowance reinforces the paternalistic approach. It implies that since disability is a static condition, disabled people are destined to live on the margins of society. Given that they cannot hope to be equal participants in – not to mention contributors to - social, cultural, and political life, they deserve hand-outs, to keep them alive, albeit at the edge of society. This view conflicts with that advanced by disability rights activists, who believe in transforming disabled people into a flourishing community of dignified citizens.79 Moreover, social insurance, so it seems, was rejected because, like private charity, it was perceived as mere “cosmetics,” a superficial social remedy that does not impact the social structure, but rather legitimizes it, and consequently hinders the revolution that rights were about to bring.80 Within the disability rights formula that evolved, disability insurance, particularly in the form of living allowances, was perceived as a wrong that could be tolerated only as a transitional measure, until the transformation would be complete. According to this view, in due time, disability insurance would become irrelevant and unnecessary.

Yet the analysis presented here suggests that the most fundamental explanation for the avoidance of disability insurance was the attempt to distinguish between poverty and disability. Accordingly, the particular need-tailored benefits were acceptable , since they were clearly disability-related, linked to costs and services that disabled people require regardless of their

recently, she stresses? that argument more specifically, even though she also acknowledges that “the issue of allowances is a direct reflection of the idea of ‘adequate services.’” Ziv, Social Rights and Existential Needs, supra note 46, at 844-845.

79 The rights view of disability allowances was voiced most clearly in the Fundamental Principles document of the Union of the Physically Impaired Against Segregation (1976), cited in MICHAEL J. OLIVER, UNDERSTANDING DISABILITY: FROM THEORY TO PRACTICE 21-28 (1996). See also Anita Silvers, Formal Justice in ANITA SILVERS, DAVID WASSERMAN, AND MARY B. MAHOWALD, DISABILITY, DIFFERENCE, DISCRIMINATION: PERSPECTIVES ON JUSTICE BIOETHICS AND PUBLIC POLICY

(1998).

80 The Fundamental Principles document, in OLIVER, Id.


actual economic condition. In the eyes of rights advocates, the perceived problem with disability insurance, particularly in its current form as a living allowance, is that it establishes a link between disability and poverty. This link was not welcomed by rights advocates, because it had no place in the world they envisioned for disabled people. In that world, poverty among the disabled community would not stem from the condition of disability, but from other reasons. Based on this analysis, the differentiation between poverty and disability was not strategic but rather rooted in the very assumptions of the discourse, according to which poverty in itself is not a disability rights issue.

A related conclusion might be that the absence of social insurance and economic security from the ERPWD Bill exposed the fact that neo-liberal ideas, among them concepts of productivity, still play a prominent role in the formulation of disability policies, even in progressive circles. Hence, while all of the services enumerated and promoted in the Bill were designed to enable disabled persons to lead independent lives by providing better conditions - primarily through full employment - for their productivity, disability insurance was perceived (albeit indirectly) as relinquishing their hope of becoming productive citizens. This implicit equation between dignity and productivity suggests that the disability rights framework has not been able to challenge the predominant meaning of productivity and independence, but rather has adopted it.

Considering the absence of social insurance from the ERPWD Bill in terms of the disability/poverty dyad raises the question of whether the disability rights discourse that developed in Israel is still open to a classic critique of rights. Although sophisticated and socially oriented, this discourse nevertheless represents a liberal-bourgeoisie concept that serves the powerful in society81 and perpetuates the marginality of disabled people. Appropriately relevant and useful here is Nancy Fraser’s critique of the politics of recognition as overshadowing the politics of redistribution that preceded it. Fraser argues that it is typical of recognition-focused movements to ignore the

81 Morton J. Horwitz, Rights, 23 HARV. C.R-C.L L. REV. 393 (1988). Note that despite my

critique, I do not advocate the abandoning of rights. Neither do I endorse them as the ultimate device to promote social change and to dismantle power structures. I examine rights as the particular paradigm and a concrete resource that was developed in a certain era and ask what it entailed and what it missed or neglected. Rights in my view are a process and not an outcome, as I shall explain later, and the critique of rights is an important, yet not exclusive, aspect of my understanding of how they work. On the constitutive approach to rights in sociolegal studies, see e.g. MICHAEL W. MCCANN, RIGHTS AT WORK – PAY EQUITY REFORM AND THE POLITICS OF

POLITICAL MOBILIZATION (1994); and JOHN BRIGHAM, THE CONSTITUTION OF INTERESTS (1996).

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redistributive aspects of their plight, thus eventually cooperating with the neo-liberal turn of the 1970s.82

D.4. Reactions to the 1999 and 2001 Protests

The 1999 and 2001 campaigns, in which grassroots voices of disability activists presented disability insurance as the most pressing matter in disabled people’s lives, spurred conflicted responses among disability rights advocates. At issue was the implied message regarding the place of disabled people in society. In the eyes of disability rights advocates, a struggle over disability allowances was anachronistic and jeopardized the disability rights projects. . Thus, while they did provide legal counseling services to the protesters behind the scenes, they did not join the sit-in strike in full force – they did not sit in the tent, did not lobby Knesset members and government officials, and did not take any overtly active role. The protocols of Bizchut from that time indeed reveal inner conflicts, and interviews conducted with activists likewise show that heated debates were taking place with regard to whether Bizchut and the Coalition to Promote the ERPWDL should be more actively involved.83 Indeed, Arie Zudkevich, the leader of the sit-in strikes, did present disability as a condition associated with misfortune and suffering, when he addressed the candidates in the race for the office of Prime Minister, in 1999:

We are talking about the disabled who were hit by misfortune twice, once for being disabled, and second for being forced to live on the shameful and shaming budgets of all Israeli governments ever since. …

These people cannot fight to improve their living conditions; therefore, we have founded our organization … and have promised to serve as their mouthpiece and to fight with our ultimate powers for us all.

… You who have met our people and know their suffering, you who have seen the pain in our eyes, should acknowledge the terrible injustice we have suffered.

We hope to bring new hope… so that we will no longer watch the shameful spectacles of the disabled drifting through (mitgolelim) the freezing streets of Jerusalem.84

82 See FRASER, supra note 31; FRASER AND HONNETH, supra note 31.

83 The Protocols are on file with the author. Based on interviews with Rivka Sneh, Gideon Drori, Simcha Benita, Achiya Kamara, Ariela Auphir, Sylvia Tessler Lozovick, and Neta Ziv.

84 In Struggle – The Bulletin of the Disabled Union, Vol. 1 and , March 2001. Note the difference between this text and the one by Yoav Kraim that is cited next to note 53. The


Conflicted views about the sit-in strikes were voiced also in the public media. It was a “victory of tears,” observed a journalist known for her progressive agenda, after the first sit-in strike.85 It was a “performance of misery,” a participant in an online forum of disabled people noted after the second sit-in strike,86 a “one-dimensional representation [of disabled people] as miserable ... as a minority that lives on the margins, a social burden,” in the words of the late Baruch Kimmerling, an acclaimed sociology professor who was a wheelchair user.87 “This attitude,” Kimmerling warned, “brings us closer to societies that have [promoted] physical extinction of unworthy non-contributing elements in society.” In this view, the image of disabled people in these strikes was not of equal citizens fighting for their rights, but of a marginal group begging for compassion.88 “It was a victory of misery,” a history professor explained, because “you were forced to undress yourself, to expose your impairments, to recruit some journalists that would bring them to light, and only in this way could you win. Is this the society we wanted? This is a return to [Diaspora's – S.M.] town, to charity collections (kupat tzdaka) …”89 From this perspective, the exposure of the participants’ impairments in public was communicated as a call for mercy and not an act of dignity.

Like those journalists and commentators, rights activists viewed the sit-in strikes with mixed responses, as a simultaneous show of solidarity and misery. The sit-in strikes, then, represented a dual movement, of continuity and departure, in relation to disability rights activism; continuity, on the one hand, because they manifested the growing visibility and assertiveness of disabled people; and departure, on the other hand, because they seemed to

differences between the texts of Kraim and Zudkevich deserve a more concrete analysis as they represent two generations within the movement (Zudkevich the older and Kraim the younger) and two phases in the struggle (Zudkevich at the end of the 1999 strike, Kraim at the end of the 2001 strike. Still, I believe, they demonstrate the tensions inside that struggle and in the messages that it communicated outside.

85 Einat Fishbein, The Victory of Tears, Ha’aretz, 11/10/1999. The tears refer to the turning point in the first strike when the mother of a disabled child started crying and Knesset members and reporters were carried away and cried with her.

86 Rita, Ynet communities, 6/13/2002.

87 Baruch Kimmerling, The Disabled of the Media, Ha’aretz, 8/11/1999.

88 A survey by Rimmerman and Herr of media representation of the 1999 strike concluded that “it is not surprising that the participants of the strike were more often described in the Israeli press as objects of pity rather than activists struggling for their rights.” Rimmerman and Herr, supra note 2, at 15. See also Ziv, Social Rights and Existential Needs, supra note 46, at 843-844.

89 Daniel Gutwein, cited in Fishbein, The Victory of Tears, supra note 85.

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many people as a step backwards, to reliance on charity and pity. More fundamentally, after having excluded disability allowances from the rights agenda, a struggle over disability allowances was perceived not only as a regression in terms of disability rights, but perhaps even as a direct challenge to the movement’s basic assumptions.

A very different view has been voiced by Yuval Elbashan, the then legal counsel to Yedid, a social justice organization, who found the tears both subversive and rebellious, and therefore consistent with the struggle as a whole. According to Elbashan, “there is nothing more legitimate … [than] taking the game to where you have the advantage.” While normally the game is ruled by inaccessible economics, he explained, this time disabled people themselves have set the rules of the game – the rule of tears.90

This study contends that the conflict over the role of social insurance benefits did more than trigger a disagreement about the goals of the disability movement; it also tested its limits and its degree of inclusiveness. Given that the disability rights movement chose to ignore the issue of social insurance, the recipients of disability insurance felt alienated form and misrepresented by the rights activists. Thus, although the focus on disability rights contributed to processes of identity construction, group formation, and movement-building among disabled people, it nevertheless was perceived as insufficient by some of its major prospective beneficiaries. The improved status and the political power that the disability rights movement promised its constituents constituted a positive but incomplete framework. Its efforts to translate disabled people’s experiences and needs into legal categories fell short of addressing disabled people’s most basic need: a dignified standard of living and economic security.

For poor disabled people, the distinction between disability and poverty was nonexistent, because their daily personal experiences had already taught them the many links between the two, and the extent to which productivity played a role in shaping the relationships between them. Yet the centrality of disability insurance in many disabled people’s lives and the significant contribution of living allowances as a means of securing their economic survival were not acknowledged in the disability rights scheme. These concerns were put aside, not because of a need to prioritize the struggle’s goals; but rather because they were perceived as contradicting its goals. The disability rights formula, which could tolerate dependencies and special needs of various kinds, could not tolerate the perceived implications of demanding living allowances as part of disability insurance. Similarly, the

90 Yuval Elbashan, cited in Fishbein, The Victory of Tears, Id.


rights movement was unable to deliver a vision in which disability insurance would play an affirmative role in disabled people’s lives.

E. Between Hope and Evil: Rights and the Persistence of Poverty

To summarize, linking disability and poverty runs the risk of perpetuating the stigma that equates disability with inferiority, lack of productivity, worthlessness, and passivity, while, as demonstrated here, attempts to separate between disability and poverty have ignored the fact that in many ways poverty and disability are constitutive of each other.

In encounters with rights advocates, social welfare activists have claimed that rights are a utopian ideal and that current pressing issues should not be ignored in the name of a future revolution, even an attractive one.91 As Yoav Kraim has said: “Our approach to rights is evolutionary not revolutionary.”92 His critique of Bizchut is that “Bizchut is guided by ideology.”

We have no problems with [the ideology of rights] but there is a great distance between theory and reality, and life requires compromises so that people’s happiness will not be sacrificed for that ideology … Our vision about allowances is the same … but in the meantime nobody should starve.”

He concluded by saying “Bizchut is not ready to talk about needs, about the ‘here and now.’”93

Similarly, the purpose of this paper is to work within the gap between hope and evil. While it is understood that this approach may not immediately resolve the tension between the two options, it could –nevertheless-- facilitate a shift in perspectives that would ultimately lead to a resolution. Acknowledging the tension is the first step in thinking critically about disability allowances; this means acknowledging their unavoidable yet undesirable character. In other words, the necessity for disability allowances should be recognized, while at the same time striving to make them unnecessary, unneeded, and even redundant. This tension is familiar in other realms of antidiscrimination law, as well. Affirmative action policies, for example, attempt to undo social wrongs while facing the risk of reinforcing that very same wrong. For that very reason, at their core, affirmative action

91 Interview with Yoav Kraim; Yoav Kraim, talk in a panel on the disability protests at

Tel Aviv University (script of panel on file with author).

92 Interview with Yoav Kraim.

93 Interview with Yoav Kraim.

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policies are understood as temporary measures.94 Indeed, this study will consider the possibility of viewing disability allowances as a form of affirmative action that compensates disabled people for the added costs they bear in a society that is mostly inaccessible and, as of yet, unwilling to become fully accessible and accommodating.

One central reason for acknowledging the necessity of disability allowances is undeniably rooted in the life experiences of disabled people. Currently, there are a disproportionately large number of disabled people who live in poverty, making economic survival the most pressing issue in their lives. As the 1999 and 2001 sit-in strikes, as well as the anti-Laron Report campaign, have so powerfully shown, for disabled people in Israel, disability allowances are about the here-and-now, while disability rights that attempt to restructure society are perceived as a long-term goal, if not a utopian ideal. Listening to disabled people’s voices is an important, corrective methodology. It deviates from the historically traditional approach, in which disabled people were treated paternalistically: they were persistently told what was right for them and thus were excluded from decision-making processes that concerned their lives and well being. If the issue of disability allowances occupies the most vocal arena of disability activism in Israel today, then this is an issue that must be addressed and considered in critical terms.95

The demand for dignified disability allowances cannot be dismissed as irrelevant to the struggle of disability rights, or as a matter of “false consciousness;” nor should it be viewed as a naïve and misguided belief in the power of allowances. A useful concept here would be “double consciousness,” as developed by critical race theorists, in reply to the critique of rights, which was raised by critical legal studies. Double consciousness means that the demand for rights made by disadvantaged groups is more than a mere fascination with rights and an inability to comprehend their limited and sometimes oppressive power. Thus, Mari Matsuda, for instance, has argued that oppressed groups demand rights, not because they are captivated by the myth of rights. Rather, minority groups, such as African- or Asian-Americans, consider rights a vehicle for hope, while they nevertheless acknowledge that in the current reality, rights might mean very little.96 The

94 MARTHA MINOW, MAKING ALL THE DIFFERENCE 47, 385-387 (1990). For a review of

United States history of affirmative action policies and the debates that surrounded them, see CHARLES R. LAWRENCE III AND MARI J. MATSUDA, WE WON'T GO BACK: MAKING THE CASE FOR

AFFIRMATIVE ACTION (1997).

95 Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R. - C. L. L. REV. 329 (1987)

96 Matsuda, id. See also Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV C.R.-C.L. L. REV. 301 (1987); Patricia J. Williams,


same can be said about disabled people’s demands for granting disability allowances as a matter of right. This needn’t suggest that disability allowances are a quick and easy repair for disabled people’s destitution, since their everyday experiences leave no doubt that the road to equality is a long one. In this view, formulating disability allowances as a matter of rights could indeed be an act of hope, which rather than representing a naïve approach is – In effect – a call for struggle.97 Nevertheless, the issue of disability allowances cannot be embraced unequivocally solely because disabled people demand it. Critical listening means that “voices from the bottom” are taken into account but examined and judged, in light of other principles and of relevant historical, political, and socioeconomic context.

The current disability rights discourse is complicated by the dual plight of disabled people: disability and poverty. Consequently, it faces two main challenges. The first challenge, which is also more vocally advocated by disability activists, concerns disabled people who do not yet participate in the labor force for various economic, social, and political reasons. The challenge, in this case, focuses on addressing their status during the transitional period, until disability rights become a reality. The second challenge concerns the group of disabled people who will never be able to work, a definition (and assumption) that, as explained below, undermines the assumptions that are fundamental to disability rights claims.

Presently, the first challenge focuses on resolving the conflict between a shortsighted view, which focuses on the present and the immediate and foreseeable future, and the long-term view, which seeks a better future. Instead, as the current study suggests, the focus should shift to the measures that should be taken in the interim time period. Thus, the question that arises is “who should pay the price for society’s ableist power structure and its consequences until ableism is dismantled?” Clearly, excluding disability insurance from the discussion implies that society is not required to bear the full cost for its past and ongoing ableist norms and practices. It also means that until society is fully transformed, disabled people will remain poor. However, as the campaigns and strikes of recent years have demonstrated, disabled people are no longer willing to bear a burden that belongs to society as a whole.

Furthermore, focusing on the interim period poses a greater challenge to rights activists, as it calls for the realization that society’s transformation will be a long and drawn out process, which might never be fully completed.

Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401 (1987).

97 See text to note 101 which discusses the view of rights as process.

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Therefore, the need to rely on disability allowances for survival might persist for a much longer time than disability rights advocates are willing to consider, much less admit. The argument that disability rights are indeed a utopian ideal that will never reach full realization is not so radical in light of the history of rights struggles.98 That history shows that even heralded rights victories such as Brown v. Board of Education99 or Roe v. Wade100 are part of long processes that had ample failures and defeats, and that rights do not make poverty go away. Yet, contending with poverty during an interim period poses a fundamental problem for disability rights advocates; namely, given that their goal is to eradicate poverty from disabled people’s lives, any measure that acknowledges the persistence of poverty casts doubt on the efficacy of their approach. It suggests that the goal of creating a world with no barriers for disabled people is, perhaps, unattainable, and more broadly, it symbolizes the futility of rights.

Approaching the issue of disability allowances in terms of hope vs. evil, an unavoidable yet undesirable necessity, requires a different view of rights (and similarly of law) – as a process rather than an outcome, a resource rather than an objective, a terrain of ongoing struggle rather than a promise for stability. Rights in this view belong to the contradictory and conflicted dynamics of legal and social relations as opposed to abstract theoretical inquiries. Finally, in this view, rights are constantly produced and reproduced rather than given.101 Interestingly, disability rights advocates were willing to acknowledge that in some aspects, the difficulty with disability allowances and their status as a temporary measure was characteristic of the entire initiative of legislation for the equality of disabled people. Thus, Auphir and Orenstein, two of the most influential figures in the legislation process of the ERPWDL, concluded their article with the following point:

Indeed a paradox. On the one hand, by enacting the ERPWDL a new age has begun in the annals of the struggle for equality and social

98 And as the history of social welfare teaches us, as well.

99 Brown v. Board of Education, 347 U.S. 483 (1954).

100 Roe v. Wade, 410 U.S. 113 (1973).

101 See SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS

AMONG WORKING-CLASS AMERICANS 145 (1990) (based on her field work on rights, Merry found that “rights come to be opportunities for action, not guarantees of protection”). For similar approaches to rights. See also MICHAEL W. MCCANN, RIGHTS AT WORK – PAY EQUITY REFORM AND

THE POLITICS OF POLITICAL MOBILIZATION (1994); JOHN BRIGHAM, THE CONSTITUTION OF INTERESTS

(1996); HELENA SILVERSTEIN, UNLEASHING RIGHTS – LAW, MEANING, AND THE ANIMAL RIGHTS

MOVEMENT (1996).


justice in Israel. On the other hand, Israeli society’s greatest achievement will be the day that it will become obsolete.102

The second challenge to the effort to establish rights for the disabled concerns the group of disabled people who will never be able to work. This raises extremely delicate and complicated issues, because it questions the very project proposed by disability rights activists. Their aim is to narrow the boundaries of that group, by claiming that many disabled people are currently unproductive because it is society – rather than their disability – that limits them. Once society mends its wrongs, a large portion of this unproductive group can in fact become part of the labor market. However, it seems reasonable to acknowledge that there is a group of people, particularly those with very severe developmental disabilities, who cannot perform any form of wage earning labor. While this is a marginal group, focusing on its needs assists in urging the question: what about those who must rely entirely on public support for food, clothes, and furniture, not to mention leisure activities, such as a vacation or a movie? Therefore, to reject a general disability allowance, rights advocates must assume the existence of other types of dignified living allowances, on which severely disabled people can depend. At this juncture, strategic alliances with other disadvantaged groups become pertinent, thus leading disability rights advocates to recognize the role that “mere poverty” still plays in their vision. The inevitable conclusion is therefore that the scheme of disability rights must depend on a strong social insurance mechanism that is either particular to disabled people or universal to all poor people. This last issue is at the heart of the next and last section of this paper.

F. Towards Reframing Disability Allowances

In order to re-conceptualize disability allowances as a matter of rights, it is necessary to consider what they intend to cover. This chapter presents three possible models of general disability allowances. The traditional way to understand general disability allowances is as a sub-type of the old form of social welfare living allowances, a minimal safety net that intends to cover basic needs such as food, shelter, and clothing. Another, more critical way of understanding disability allowances, which is presented here, is as a new form of benefit that is designed to cover unspecified disability-related costs that stem from society’s continuing exclusionary institutions and practices. The third model integrates the first two by incorporating both basic needs and additional extra costs.

102 Auphir and Orenstein, supra note , at 87.

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The understanding of disability allowances as mere living allowances carries the risk of perpetuating the marginality of disabled people and legitimizing the ableist power structure. Not unlike the current model of disability insurance, it is practically destined to have “need” as its guiding allocative principle, and thus to perpetuate disabled people’s poverty and inferiority.103 Even in a more generous system, this structure is most likely to reproduce the power relations to which disabled people are currently subjected, since it still manifests a view of poverty as rooted in the individual, ignoring society’s role in generating indigence and disablement. The Israeli Invalids Law for disabled veterans is a good example in this context. The Invalids Law is indeed generous, yet even as it acknowledges the direct and explicit role of society in disabling the soldiers, by sending them to military service, its underlying compensation principle overlooks society’s ongoing role as an ableist structure, manifested in its inaccessibility to the disabled, and the socio-cultural understanding that equates disability with inferiority.104 Another pitfall of this model is that it is highly unlikely to change the hierarchy of benefits among disabled people.

This study proposes a very different understanding of disability allowances from that described above. It contends that, first and foremost, the justification for disability allowances must acknowledge their necessity; second, it must explain their role in a way that differentiates disability allowances from other allowances; and third, it must not perpetuate that marginalization of disabled people. The approach suggested here is that disability allowances be viewed as society’s obligation to pay for its role as an ableist structure, a payment that must continue until the last of these social barriers disappears. Accordingly, the extra costs of disability are a matter of social responsibility and not the individual’s burden.105

A somewhat similar rationale was developed by the Israeli group Campaign for the Handicapped, which, as mentioned earlier, promoted a view of allowances as rights that aim to bridge the gap between the cost of living of a disabled person and those of a nondisabled person. To recap, the Campaign for the Handicapped memorandum argued that “disability allowances are an investment that allows the disabled to secure [their] unique needs, to integrate into the country’s life and contribute to it.”106 This concept was

103 Silvers, supra note 79, at 13.


105 For a most recent survey of the extra costs of disability, see Zaidi & Burchardt, supra note 9.

106 A memorandum submitted to the Israeli government by the Campaign of the Handicapped People in Israel regarding the establishment of a public committee as part of the


also developed with great elaboration by the Disability Income Group (DIG), a British organization of disabled people that, since its establishment in 1966, has been campaigning for the acknowledgement of the extra costs that disabled people accrue in their daily lives.107

Both the Campaign for the Handicapped and DIG have indeed asserted that the gap between the cost of living of a disabled and a nondisabled person (and therefore the level of allowance) is dynamic, and depends on the level of services provided by the state; both have also viewed the state as responsible for providing appropriate care and treatment for every person. However, the situation demands a further elaboration of the role of the state in creating the current social, cultural, and political barriers, and a detailed explanation of the ways in which forms of discrimination and exclusion continue to contribute to this gap.108 The critique offered by the current study calls for a reformulation of disability allowances as society’s debt to disabled people, for its failure to supply full access, equal rights and opportunities, and economic security. A new justification for disability allowances would therefore include two modular layers: first, acknowledgement (and in fact exposure) of the social, dynamic, and interactive nature of disability; and second, the shifting of the costs of disability to society, which is accountable for denying services and for not eliminating all forms of discrimination and exclusion of disabled people.

A possible next step would be to demand that any disabled person, whether working or not, rich or poor, would be entitled to disability allowances, because such allowance is not intended to be a substitute for wages but rather to cover additional costs imposed upon disabled people, in comparison to other non-disabled people, working as well as non-working. Such a scheme has recently been adopted in England. Moreover, once the ableistic rationale that underlies disability benefit programs is exposed, no disability program can escape the consequences. Thus, in contrast to the current situation in Israel, whereby veterans receive much more substantial benefits than other disabled people, based on this new logic, disabled veterans might receive lower levels of disability allowances than other disabled persons, because they enjoy services that are more comprehensive, progressive, and generous. However, under the new formulation, the

agreement that at the end of the 2001/2002 strike. Dated May 9, 2002 (emphasis added) (on file with author).

107 For policy papers developed by DIG, see http://www.leeds.ac.uk/disability-studies/archiveuk/disablement%20income%20group/dig.html. On their role in the history of the British disability movement, see OLIVER, supra note 79, at Chapter 2.

108 That was UPIAS criticism towards DIG and the main reason for the split among the groups. See OLIVER, supra note 79, at Chapter 2.

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allowances would be allocated to compensate, not for the inferiority that is associated with disability, but rather for society’s role in allowing the persistent social, cultural, and political disablements that transform disabled people into inferior citizens. This is therefore a universal model for disability benefits, based on a social construction model of disability, that takes the consequences of ableism seriously, and that connects all disabled people and all disability benefit programs under one umbrella.

Following the view of disability allowances as mere living allowances, and that which considers them society’s debt, the third and final model of disability allowances covers both basic needs and nonspecific disability-related costs. Such a formulation is more comprehensive than the second model, as it addresses also the needs of disabled people who cannot work at all. It expresses an understanding that even in a world of complete, adequate, and dignified services, and of no discrimination, marginalization, isolation, or any other form of oppression, there would be a group – albeit a small one – of disabled people without the means to cover daily living expenses.

It is at this point that the issue of group consciousness and inter-group relations reappears and raises significant questions concerning the relations between disability allowances and general living allowances for people who live in poverty. If disability and poverty are interrelated, then it would be impossible to construct separate social welfare mechanisms to address the implications of each. A true commitment to social solidarity must assume that every person deserves to live with human dignity and economic security, not only disabled people. A comprehensive view of social welfare dynamics mandates a link between all persons who require basic living allowances for their physical survival, disabled or not.

Disability advocates, therefore, have three options with regard to the basic needs component in disability allowances: first, to avoid the issue of living allowances as unrelated to disability, an option that might alienate a substantial group of disabled people; second, to promote dignified living allowances only for disabled people, a path that strengthens intra-group bonds, although it carries the risk of conveying a message that disabled people are more deserving of those allowances; and third, to join, or better yet, form an alliance of all people who live in poverty, which would promote dignified living allowances for all.

The resources for establishing the fundamental right to disability allowances are already available, although its specific formulation may vary. One approach would be to structure it as a right to social security. Thus, for example, Article 9 of the International Covenant on Economic Social and Cultural Rights provides that “The States Parties to the present Covenant


recognize the right of everyone to social security, including social insurance.”109 More recently, the United Nations adopted the Convention on the Rights of Persons with Disabilities. Article 28 to the Convention promulgates that “States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing…” Another possible approach would be to base this legislature on a substantive right to welfare, an attempt that was unsuccessful in the United States.110 It seems, however, that the welfare right is of a lower status than the right to social security, because of the related hierarchy between social security and welfare. The vision of social insurance for all entails higher principles of social responsibility, economic security, and dignified standards of living. These are not the only options available, of course, but mere examples. Additional formulations could be a right to dignified living and/or to socio-economic security, which might achieve the same goals while applying even higher standards. In any event, the goal here is to show that tools and precedents for articulating such a right already exist.

One last word before concluding: as this study comes to an end, it might be mistakenly viewed as arguing that disability allowances are the single most important issue for disabled people in their struggle for equality, dignity, and economic security. Although important, disability allowances cannot be examined in isolation. Indeed, the view promoted here is that disability allowances should be part of a larger quest for justice, and disability rights are currently the major vehicle through which to achieve it. Clearly, disability allowances cannot be the only issue on the agenda of disabled people; yet ignoring them altogether is both impossible and wrong. In fact, disability allowances receive the place that they deserve only when they are positioned within a comprehensive view of dismantling ableism. Without such a comprehensive plan, the “hope” component is lost and only “evil” remains.

109 International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A

(XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 (emphasis added).

110 On the welfare rights movement, see text to notes 50-52.

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BETWEEN HOPE AND EVIL REFRAMING DISABILITY