What is deaf legal theory?

This post attempts to explain what deaf legal theory (DLT) is.  By way of an introduction, it is a new concept in the field of study known as ‘jurisprudence,’ that is, various critical approaches to law through which a critical examination of a legal system or area of law can be made.

Existing jurisprudence

Various attempts have been made to do so by legal positivists, natural lawyers, legal realists and through critical legal studies, and some of the better-known theories are feminist legal studies, critical race theory and queer legal theory, alongside natural law, legal positivism, and critical legal theory. More information about jurisprudence can be found here.

It is argued that DLT falls within critical legal studies discourse, which challenge the view that the law and the lawmakers are neutral and value free, meaning that objectivity within the law is impossible.

Feminist legal theory

Feminist legal theory – which forms part of the critical legal studies field – appears to be most closely aligned to that of DLT inasmuch that it considers that the law and the legal system are most often viewed through a lens which is male, with the law reflecting the views of men; men made the law to suit their representation of reality; and the law favours masculine values and concerns.  In essence, law is patriarchal.

This feminist perspective argues that the law should be viewed from a woman’s perspective, as by doing so, it will become clear that the law is not neutral or impartial in its treatment of men and women, and instead it systemically reflects, maintains and legitimises patriarchy.  In other words: ‘mainstream law is “malestream law”’ (Meyerson, 2007, p. 173).

A model for DLT?

In this guise, it is argued that the law and the legal system are most often viewed through a lens which is ‘hearing,’ with the law reflecting hearing views, or the law having been made to suit their representation of a hearing reality, and equally, the law remains patriarchal.  Therefore, in the DLT context, mainstream law is ‘hearing-subjective’ (Bryan & Emery, 2014) and audist.

Mainstream law has generally sought to use law to ‘look after’ deaf people, a practice that begins with the assumption that deaf people need ‘help.’  The legal roots of the treatment of deaf people still lie in a state that invokes charity, where a society wishes to do good or to reassure themselves of their moral conscience.

The law also affords privilege to deaf people who fit in within the expectations of the dominant hearing society – the ‘hearing construct’ –  of who they should be. For example, the law provides for the education of deaf children in mainstream settings, allows deaf people to qualify for disability-related benefits, provides funding for adjustments in the workplace, and public funding through the national health service for medical interventions such as cochlear implants and hearing aids (Bryan and Emery, 2014).

Applying DLT

In order to apply DLT to a legal system or area of law, the DLT Method need to be engaged in order to determine the extent of ‘hearing-subjectiveness’ (Bryan & Emery, 2014):

1. The frame of understanding within society in relation to deaf people (e.g. deaf people, the health and medical profession, charities, hearing people).
2. What assumptions have been made regarding deaf people in the shaping of the law (e.g. using the medical or social model of disability, or the language minority model)?
3. The participation of deaf people in the shaping of the law and/or policy (e.g. was there meaningful consultation with the Deaf community on their own terms).
4. To what extent has society imposed its cultural order on deaf people in relation to the law (e.g. hearing culture, other cultures)?
5. The application of the law to deaf people (e.g. the relevant legal principles and how they or should be applied to deaf people)?
6. The impact the law has on deaf people and their allies.
7. Do deaf people experience further oppression rather than liberation or are they afforded rights (e.g. does the law reinforce the status quo or does it portray deaf people on their own terms)?
8. What do we learn about how the law can and should bring deaf people within its purview?

When this process is applied to a legal system or area of law, the result should that incomplete assumptions are exposed, and ‘Deaf jurisprudence’ is further expanded.

References

Bryan, A., & Emery, S. (2014). The case for Deaf legal theory through the lens of Deaf gain. In H-D. L. Bauman & J. J. Murray (Eds.), Deaf Gain: Raising the Stakes for Human Diversity (pp. 37–62). London: University of Minnesota Press.
Meyerson, D. (2007). Understanding Jurisprudence. London: Routledge.