Theorizing Discrimination and Disability as a Philosophical Interest in Law

Abstract

Disability is an extremely indeterminate concept whether taken in law, ethics, or common sense and has no settled meaning. This paper gives an in-depth analysis of the use of capability approach of Amartya Sen towards disability in respect of equality, diversity and prevalent social model of disability that is in relevancy with UNCRPD which emphasizes on the dimension of social development.  The reason to use capability approach of Sen towards disability as a philosophical yardstick (legal academic philosophy) of this research is to “emphasize upon the moral significance of individuals’ capability of achieving the kind of lives they have reason to live instead of focusing on subjective well-being or the availability of means to the good life” (as is the subject of utilitarianism or resourcism respectively and the apparent problem faced in developing countries). In this regard, it is insufficient to focus only on means by avoiding what a person can do with them. In contrast to an exclusively economic approach, Sen believes in what one is ‘able to do or to be’[1] with an approach to wellbeing that revolves around the ability of an individual pointing to the significance of the social model of disability. Literature in the form of books, articles and reports is evaluated on the subject which covers various aspects of disability ranging from charity to right based disability model. To ease the readers’ understanding of the relation between capability theory and disability, this paper also describes a detailed view of the five major models of disability.