Formal Justice by Anita Silvers

As a side note these next two blog posts are related.

Anita Silvers suggests that “formal justice” alone has caused various integration accommodations such as remodeled bathrooms, closer parking spaces, signers for Deaf, and Braille signs to become a major part of American society. These “just principles of material distribution” are examples of what is “constructed to be neutral in respect to whether person are normal, or impaired.” (Silvers 16) These just principles in Formal Justice, shouldn’t necessarily seek to equalize the life chances of disabled persons, but rather the principles should only remove the social, cultural, and legal barriers to equal opportunity. Formal Justice says that justice is served when no one is prevented from seeking their conception of the good, by these culturally and socially imposed obstacles. These barriers include concepts such as institutionalism, devaluation, marginalization, guiltiness, and exclusion. These imposed obstacles would include the way disable people are discriminated against by the nondisabled because of their inability to possess all of the same physical, sensory, and cognitive characteristics.  One example is the condescending judgment received due to various government handouts. The nondisabled feel morally and politically obliged to mitigate and rectify specific kinds of disadvantage occasioned by the differences. In other words, the nondisabled feel obligated to equalize the people because of their disabilities. This gives disabled people inherently less moral value. However, the crux of Silvers’ argument claims equal moral value is most important.

Equalizing justice, in opposition to formal justice, holds that a just society should compensate those who draw less advantageous shares. Our need for equal entitlement (happiness, life, liberty, etc.) makes it a requirement of justice to equalize life opportunities.  According to Silvers, this shows how American society promotes separation in order to keep disabled people separate, thereby not maximizing efficiency. She states, “However praiseworthy, the generous distribution of resources cannot reconfigure the circumstances that dim their prospects. Distributing benefits to individuals with disabilities does not address the bias that isolates them.” (Silvers 17) Formal Justice enables everyone, regardless of condition, to have an equal playing surface without socially induced obstacles.

For Silvers this equalizing method is “Distributive Justice”. Silvers states, “Rather than broadening the social participation of people with disabilities by reducing their isolation, theoretical egalitarians who are unprepared to alter interpersonal conventions turn to distributive schemes that compensate people with disabilities for their isolation but continue them in it.” (Silver 23) This act of Distributive Justice will only serve to keep those underrepresented, in the same position. Silvers then use the concepts of institutionalism, devaluation, and guiltiness to support her claim.

Both Silvers and Anderson advocate social movements as part of the solution. However, this contradicts one of their fundamental claims of elevating private preference into the public light. In essence, they are elevating their own private preferences into the public light. The democratic way becomes less democratic. Running along the same mind of thinking as the slogan “Nothing For Us, Without Us”, Silvers cannot suggests what she wants, and speak for all disabled people. Each disabled person has different needs. It is up to society to establish principles for all members, able or not. Even still, is the democratic way the only way to achieve social equality? While they argue for Formal Justice and Democratic Equality, and against Distributive Justice and Luck Egalitarianism respectively, there are a great number of those who feel that the latter option is the better method, including disabled people. The tangibility of the resource demonstrates attention and sensitivity towards situations. Great portions of disabled people have a multitude of conditions, or a great severity of an impairment that all intangible resources cannot account for.

For example, a person with Crohn’s disease has so many side conditions, that acts of distributive justice will be needed at some point (assistance for amount of medicine/procedures/surgeries). To believe that social and cultural barriers are the only things holding disabled people back is naïve. Most disabled people can break through these barriers by will, but at times, their restrictive condition becomes tangible, legitimate if you may.  To conclude, to think that social movements will alter the environment surrounding disable people is too idealistic. Discrimination will always appear in at least one form. This is not to say that social movements should not be used, but rather, it is a fragmented and incomplete solution. For these assertions to be persuasive, a tangible and thorough plan must be suggested. One, which will assure, that without the use of distributive resources sensitivity towards disabled people will be maintained. 

References:

Anita Silvers: “Formal Justice” in Disability, Difference, Discrimination, Anita Silvers, David Wasserman, and Mary B. Mahowald, 13-53; 133-145