Individual Preferences? – Exclusion of the Disabled in Contractarianism

Individual Preferences? – Exclusion of the Disabled in Contractarianism Britta Noelte –DRAFT– Abstract Liberalism aims for normative priority of the individual. Interference by the state, as a powerful group entity, with assumed equal individual freedom is required to be justified, in the contractarian case, by individual self-interests. Only, this framework excludes the disabled, with whom, due to their natural bad luck to lack ability to produce value, cooperation is not of interest. In contrast, the social model of disability regards disability, to produce value or otherwise, not as an individual deficit, but as the result of social factors. Explicating this view, I will argue that liberalism starts off from a situation, in which some individuals can use the power of their group to interfere with allocation of value produced by the disabled, contra the normative priority of the individual. Exclusion of the Disabled in Contractarianism Aiming for normative priority of the individual, liberalism starts off from the assumption of a hypothetical initial situation, in which individuals are equally free form interference by the state as a powerful group entity. To secure this initial freedom, any deviation from it is required to be justified, such as by agreement of individuals entering a contract. The contract can be based on, to what individuals would rationally agree, either considering 1 their respect for and what they could justify to others, as in contractualism, or considering their self-interests, as in the contractarian version. Contractarianism is commended for protecting individual interests as they are. It is said to have “no aim beyond those given in the preferences of its members” (Gauthier, 1986, p.341). Especially, it is not “linked to any substantive conception of what is good” (Ibid.), which might be in danger of promoting community interests at the expense of the individual, either directly, if community goods trump individual interests, or via state actors usurping the common good for their own ends (cf. Berlin, 1969). Yet, contractarianism is also known (e.g. by Nussbaum, 2007) to exclude those considered unable to produce value, with whom cooperation consequently is not of interest, such as the elderly or the disabled, the latter of which I will discuss here by example of the autistic. Whilst unfortunate, exclusion of the disabled, arguably, will not invalidate liberal premises, if it results not from a social choice, but from the bad luck to lack ability to produce value, with which the disabled enter the situation. For exclusion as an essentially natural phenomenon, no one should be assigned responsibility. Conversely, obligating non-disabled individuals to provide adaptations necessary for the inclusion of the disabled without granting them appropriate compensation, would constitute interference with their interests that needed to be justified. In contrast to this view on disability as individual deficiency assigned by natural bad luck, the social model of disability regards disability, and by extension alleged inability to produce value, as a result of social factors failing to provide necessary adaptations. At first glance, rather than contradicting each other, these views merely seem to stem from two non-overlapping discourses that are each following their own axiomatic assumption: while acceptance of exclusion of the disabled seems to follow from contractarianism’s aim to protect individual interests in a situation as established by natural luck, the demand of an equally accessible society by the social model of 2 disability seems to follow from contractualism’s requirement of respect for others. Yet, instead of corroborating a clear-cut division between these two discourses, I maintain that the social model of disability can challenge the argument, based on which contractarianism accepts exclusion of the disabled as a corollary of its protection of individual interests. Specifically, in chapter 2, I will explicate the social model of disability to show, in chapter 3, that exclusion of the disabled need not necessarily result from their inability to produce value, but can stem from initial individual differences in opportunity to use the power of one’s group to interfere with distribution of value produced. The Social Model of Disability How does the social model understand disability, then? In contrast to the medical model, which views disability as an individual deficit, it focuses on the disabling effect of social factors (see e.g. Oliver, 1990). Individuals may be either impaired or have different profiles, but society disables them by way of social structures failing to provide necessary accommodations. The neurodiversity movement has picked up this paradigm, according to which autism is but one of several neurocognitive profiles, whose disabling effects result from oppressive social environments (Chapman, 2023, p.117). The social environment is not only labelled as oppressive, instead of the autistic as deficient, neurocognitive diversity at large, lending from the concept of biodiversity, is classified as valuable (Walker, 2021, p.19). How should we understand neurodiversity’s value, then? A contractarian context, as introduced above, would allow the disregard of a contractualist understanding that focuses on the inherent value of humans in all their variations, but would instead ask neurodiversity as instrumentally valuable for others to be spelled out. 3 Neurodiversity can be instrumentally valuable, if autistic input, even if failing to produce direct value for the respective exchange partner in these instances, creates value for the system as a whole. A diverse input of perspectives, for example, can enhance the quality of scientific output (O’Connor and Bruner, 2019), which is valuable for society at large. Providing accommodations that enabled the inclusion of autistics would be in the common interest, then. Yet, can this reasoning tackle the initial problem of exclusion of the disabled? Individuals with divergent but instrumentally valuable profiles, who, for example, excel at maths or at playing the piano, are already predominantly labelled as talented instead of as disabled (see Barnes, 2016, for an analogue example from the discussion of physical disability), or at least are already able to bargain for necessary accommodations in return for providing their input. Even awarding the same benefits to those providing commonly valuable input, would only be helpful for all autistics, if not only diverse input in general, or some cases of divergent input, was valuable, but, crucially, every variant of the whole range of diverse input, bar none. Otherwise, this strategy was in danger, just to redraw the dividing line between who is considered able to provide value and who is not, whilst failing to eliminate it altogether. Conversely, deriving instrumental value of neurodiversity from that of biodiversity, is prone to segregate disabled individuals by design, I would argue. Biodiversity results from evolutionary processes, which are constantly producing variation, but which also, by conditioning survival on environmental fit, are constantly erasing unsuitable variants produced. Biodiversity’s value for a system at large might suggest that of neurodiversity, but without reason for employing this analogy while simultaneously withholding the transfer of the non-viability of some variants, it might be difficult to distinguish from a social darwinist position. Moreover, if diversity – by definition a group-level property – affects all 4 members of a group, why are evidently only some of them disabled? To answer this question, it might be helpful to explore a part of the debate about the social model of disability that focuses on the relative frequency of different types of individual profiles. Barnes, for example, in her aim to discuss the effects of disability on well-being, characterises disability via its propensity to “make[ ] you non-standard” (Barnes, 2016, p.55), as “something that makes you a minority” (p.78), which can result in discrimination, exclusion, prejudice and stigma. In general, minority status could either sufficiently describe, what it means to be disabled, or might need to be complemented by further properties of disability, such as a kind of suffering in itself, but the purpose of this argument does not require a decision on that. In a neurodiversity context, Walker (2021) coined the term ’neurominority’ to capture, why some individuals are disabled by their type of neurocognitive profile occurring relatively rarely. It recognises autistics as “an oppressed minority” (p.12-13) by drawing an analogy to ethnic or gender minority groups. This view denies the existence of “normal people” or “default groups” (p.22) as well as that of a normal or right way, in which brains should function (p.19). Yet, in a society operating on the contrary assumption, autistics live in “a world by and for neuronormalized people to the detriment of neurominoritized people” (Catala, 2023, p.147), in a world, in which they are subjected to “privilege and power that dominant majorities so often wield over minorities” (Walker, 2021, p.28). Hahn, as an early proponent of the minority view, claims that discrimination of the disabled can be traced back to public policy: “architectural structures and social institutions exist because statutes, ordinances, and codes either required or permitted them to be constructed in that manner” (1988, p.40). As these institutions and structures define, which capacities and functions individuals are required to possess for being able to participate in community life, they effectively exclude minority members lacking them. In this context, I will assume that the contract, insofar as it is not about specific 5 policy choices but the underlying terms of political association, is prone to exclude minority members in the same way, by conditioning participation in political association on specific individual capacities. Contract theory assumes that such jointly agreed-upon interference, whether in the form of policy or polity choices, is launched from an impartial initial situation of horizontal interaction between individuals that is absent of any state interference yet. As this initial situation provides the basis, from which the terms of the contract are established, it will be the object of my following focus. However, horizontal interaction in the initial situation could require individuals to have certain capacities as condition for their participation too. A cooperatively produced resource, for example, can have specific properties that confront minority members with insurmountable tasks, such as requiring someone using a wheelchair to climb stairs, or that confront them with tasks that are prohibitively costly, in case costs are exceeding potential benefits. In this context, exclusion from participating in an exchange, and thereby from gaining benefits from it, is understood in a binary way, where a minority member is ’out’ instead of ’in’. Yet, minority members could be excluded across a continuum as well, I will assume, if their preferences are considered to a lesser extent than those of majority members, when circumstances or properties of the cooperative exchange are established. In these cases, minority members can participate in the exchange, but are required to cover accommodation costs necessary to adapt to the circumstances alien to them, which detracts from how much benefits they can gain. I will consider minority members to be excluded from such an exchange to the degree, that they loose benefits due to their preferences being taken into account to a lesser extent. Furthermore, I will assume that, if preferences regarding the circumstances or properties of an exchange diverge, the resulting disagreement – about the specifics of the exchange, thus about the distribution of benefits and thus, ultimately, about individuals’ degree of exclusion – will be decided upon by bargaining, where 6 each individual tries to enforce their own interests as best as possible. Altogether, which distribution of benefits should we expect, then, to result from bargaining between a group of individuals, that consists of a majority and a minority, while assuming that this exchange is framed by an initial situation of horizontal cooperation absent of any state interference yet? Crucially, insofar as the expected distribution of benefits turns out to exclude minority members, can it still be justified by reference to the contractarian protection of individual interests in a situation as rendered by natural luck? Can contractarianism claim that the disabled only need to cover costs required to accommodate that configuration of the cooperative exchange that follows the interests of equally free individuals? In the next chapter, I will argue that the minority status of the disabled can challenge this assumption. Admittedly, including majority and minority status in the analysis of the initial situation deviates from the usual description by contract theory, according to which the initial situation as a hypothetical scenario populated by atomistic, separate individuals allows insight into, with what individuals by themselves are naturally equipped and thus what they can claim, when entering social cooperation. However, as individual affiliation with a majority or minority group, respectively, is an empirically indisputable fact, the analysis of the initial situation should be able to include it, for want of becoming practically irrelevant otherwise. Alternatively eliminating the effects of majority and minority status from non-hypothetical situations, to save the applicability of the hypothetical initial situation in its usual form as sketched, would require the non-hypothetical situation to deny individuals initial opportunities to enter and act in association, which can be ruled out for deviating, disproportionately, from liberal principles. 7 Bargaining with Minorities Considering a cooperative exchange, then, between a set of individuals, of which most belong to the majority and a few to the minority, which distribution of the benefits from this exchange (that is, value produced minus costs) should we expect? Let’s assume, firstly, that 100 individuals jointly create 100 units of a resource R by each providing an input, that, secondly, of those 100 individuals, 97 individuals want the resource to have property aand 3 individuals want the resource to have property b, and that, thirdly, costs for switching between version aand bare negligible, such as when two printing patterns can be produced at low cost and be exchanged seamlessly during operation. For now, I will disregard cases, in which costs for switching between different versions of a resource are substantial, or rather I will generally disregard cases, in which cooperation falls through due to total costs exceeding potential value produced. In case several individuals, who each belong to a majority or minority, respectively, are cooperating, should they produce version aof the resource, preferred by the majority, version b, preferred by the minority, or both versions? A uniform production of version a, for one, would ignore the preferences of the minority without reason, but instead express entitlement of the majority to declare their preference to be the ’normal’ or ’right’ one. However, proportionally mirroring individual preferences by producing version a97 times and version b3 times, would reflect equal consideration of all preferences. If quantity of each version produced matched with preferences present, then, and if individual costs for selecting one’s preferred version were negligibly low too, all participating individuals would be granted the same amount of benefits. However, if costs for matching with one’s preferred version were existent or even prohibitively high, such that each individual routinely had to choose a random version, minority members would be expected to gain less benefits than majority members, as they would have to bear higher costs for 8 selecting and gaining access to their preferred version or for adapting to the majority version, yet minority preferences could be considered to be included still. Crucially, however, bargaining between members of a group, consisting of a majority and a minority, could result in a deviation from this proportional benchmark as just described, due to a difference between members of the majority and the minority, regarding how much benefits they can be expected to loose, respectively, from an alternative to this exchange. Specifically, an exit of minority members from this exchange would loose minority members more benefits than it would majority members, which, according to bargaining theory (Muthoo, 1999), equips majority members with a bargaining advantage. This mechanism should be expected to unfold, when economies of scale are present, which realistically affect a broad range of resources. Economies of scale allow participants to share fixed costs by their number and thus to decrease costs per unit, with each additional unit produced. When bargaining over which version of a resource should be produced, majority members are granted an advantage by economies of scale. Effectively, if majority members threaten minority members with their exclusion, majority members risk to loose less than minority members do, if they threaten majority members with their, the minority members’, exit. Majority members can consequently bargain for the increased production of their preferred version of the resource, which grants them, via a decrease in their own accommodation costs and the simultaneous increase in accommodation costs for minority members, a bigger share of benefits, at the expense of minority members. Majority members can thus appropriate a share of benefits that, although bound by the specific configuration of the exchange, can exceed the one that resulted from a proportional consideration of preferences as introduced as benchmark above. Which distribution of benefits should one expect, for example, from co9 necessary to launch jointly agreed-upon interference. An initial situation shaped, instead, by the power of groups, should be expected to outfit different individuals with different opportunities to interfere with distribution of benefits. Benefits gained in this way, can then be used as power tools to influence the political process. General skepticism about whether individuals with advantages in money, social status, time, mental energy, knowledge or professional abilities, should be allowed to use these to influence the political process to a greater extent, will get supercharged, if these advantages result from previous opportunities to use the power of one’s group to interfere with distribution of benefits. Conversely, under-proportional representation of neurominorities in political and high-level administrative roles, for example, can be criticised with additional severity, if the exclusion of neurominority members has been exacerbated by their lack of personal resources, such as capacity to tolerate stress, that they would have required to launch a candidacy for these roles, but miss due to under-proportional regard for their communication style, in general. Moreover, if positive feedback loops emerge, the effects of a lack of an impartial basis can compound. If in a biased initial situation, biased political rules are established, that further bias the situation, in which increasingly biased political rules are established, a powerful majority will continually increase their benefits, one iteration after the next. Additionally, my discussion has been anchored in the example of autistics, but further immutable traits – constituting other kinds of disability or other social identities, e.g. along the dimensions of gender, race or religion – that confer minority status, could trigger further systemic disadvantages, whose effects can mutually reinforce each other, particularly for those at their intersection, whilst the advantage for majority members might develop an oomph, that differs significantly from its basic building blocks. Yet, considering how liberal principles are embedded in an actual political context, demands recognition of minority rights as a significant feature of 16 that context, too. One would expect minority rights, intended to counter the well-known difficulties minority groups face in any political society (see e.g. Kymlicka, 1995), able to compensate for interference by powerful majorities, either by prohibiting discrimination or by safe-guarding a minimal standard of life for minority members. Minority rights might indeed achieve this, to an extent that should be determined, but they can be successively eroded in the political process, too, I would argue. Even granting minority rights constitutional priority, does not negate the necessity that, as abstract principles, they need to be translated and integrated into a wide-ranging body of casespecific, actionable political legislature and judicial control – the process of which is both consistently implemented and overseen by majority members, who, again, enter the political process with an advantage in resources. Moreover, minority rights that are only ever intended to cover a basic standard of life, could grant minority members less benefits than they could have gained, if majority members had not been able to use the over-proportional power of their group to disregard minority preferences. This reasoning might or might not be convincing, but even conceding that liberalism, partially, fails its own promise, could not be used to advocate for non-liberal regimes, as these protect neither from interference by powerful private nor state actors. Furthermore, potentially adverse effects of the liberal order granting priority of negative individual freedom, as discussed here, do not necessarily invalidate concerns about potentially adverse effects of the inverse political order granting priority of positive freedom (cf. Berlin, 1969), but could rather demand to be recognised as an integral part of a fundamental dilemma: how can individual preferences be protected from interference by powerful private as well as state groups? Lastly, it is not necessary to commit to contractarianism, as a prerequisite for employing its promise to protect individual interests as a benchmark against which to criticise its actual output. If one was committed to contractualism instead, one could still be motivated to examine contractarianism, 17 first, with regard to the output it produces, when implemented in a nonidealized society that includes majority and minority groups, as this specifies the conditions to which liberal societies revert back, insofar as the more challenging contractualist requirement of respect for others fails to materialize. Secondly, one could be motivated to examine, what one could ideally expect from contractarianism, if it was considering preferences equally, as this provides the baseline, wherefrom a contractualist notion of respect is first needed. Irrespective of one’s broader theoretical beliefs, the argument presented here, and if wrong, the insight gained from refuting the argument presented here, illustrates, how valuable a core debate from disability studies can be for a broader one of political philosophy, which challenges disability studies’ and disability philosophy’s relegation to bioethics (Tremain, 2017). At least it might do so, if not political philosophy itself is used as a vehicle for the neuromajority to strengthen their political power by pushing for a theoretical foundation of political association that implies the appropriation of resources by some to be a case of personal deficiencies of others. 18 References Elizabeth Barnes. The Minority Body: A Theory of Disability. 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