Vol.
14 No. 1 (January 2004)
RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES
OF AMERICANS WITH DISABILITIES, by
David M. Engel and Frank W. Munger. Chicago: University of Chicago Press,
2003. 274 pp. Paper $19.00. ISBN:
0226208338. Cloth $56.00. ISBN: 0-226-20831-1.
Reviewed by Lauren Bowen, Department of Political Science,
John Carroll University. Email: bowen@jcu.edu.
In this compelling volume, Engel and Munger propose a recursive
theory of rights and identity, suggesting that identity determines how and
when rights become active, and yet the recognition of rights can also shape
one's identity. What makes the book so worthwhile, however, is less about
the conclusions they reach and more about the ways in which they advance their
argument. This is especially appropriate in the context of this particular
study, as much of what they emphasize is the process by which rights become
active. They are "looking at the process through which the self continually
evolves and redefines the relevance or irrelevance of law" (p.13). Accordingly, the process by which they
draw inferences contributes as much to our body of knowledge as the theory
of rights that emerges. The process by which rights are realized and invoked
by individuals can lead to collective change, giving those legally sanctioned
rights a more significant societal meaning. The converse is true as well,
in that that the legal establishment of a cause of action can facilitate a
consciousness that demands inclusion by those historically excluded from the
mainstream. Emphasis on the process through which this dynamic plays itself
out has, as its corollary, the methodology employed by Engel and Munger. The
method they use, life story narratives, allows an emphasis on process to emerge.
A more deterministic approach might well have ignored this insight.
As they note in the Preface, "the passage of the Americans
with Disabilities Act …presented an extraordinary opportunity to explore from
the very outset what rights actually did and how they mattered, or did not
matter, to their intended beneficiaries" (p.ix). They devoted six years to
tracing the effects of the ADA to a sample of those covered by the legislation,
their objective being to ascertain the circumstances under which rights contained
within the law became active or remained inactive. Ultimately, they conclude
that a confluence of factors, including social class, race, gender and religion,
affect life stories and identity formation. Identity, in turn, determines
how one understands his/her disability and the relationship between the self
and the legally defined disability. Moreover, they suggest that our understanding
of activating rights should be more inclusive, extending beyond formal legal
claims. Amplifying the dynamic relationship between the construction of the
self and the construction of rights thus organizes much of the volume.
Their thesis, then, is two-fold. Engel and Munger suggest
that "rights and rights consciousness hinge on a sense of identity that is
reflected in ever-changing life story narratives of individuals with disabilities"
(p.10). Life story narratives provide the occasion to understand the influences
on that sense of identity. The second aspect of the thesis finds that "viewing
individual autobiographies over the broad sweep of time reveals the variety
of ways in which rights can become active or inactive" (p.10), which as mentioned
above, expands our theory of legal mobilization. To be clear, they have no
standard as to the "appropriate" response to which all subjects are being
compared. They do not presume that invoking the ADA in a formal sense is the
best course of action in all cases. They are instead seeking to understand
the variety of responses, and then, to explain those responses within their
theoretical framework. Thus, this volume does not pretend to make claims about
the "success" or "failure" of the ADA. They do not join the lament of many
that the ADA has had a limited impact because of the relative dearth of formal
legal claims (see pp.6-8). Rather, they want to look at the role of the law
in the lives of "ordinary men and women" (p.7). This open, almost unbounded
approach is simultaneously the strength and weakness of the book.
To develop the argument that there is a mutually constitutive
relationship between law and society, Engel and Munger began by interviewing
180 people by phone. They confined their sample to people either wheel-chair
bound or dyslexic, allowing them to compare and contrast rights consciousness
between those with visible and invisible disabilities. Sixty interviewees
were then selected for more in-depth consultation, which occurred between
1994 and 1997. Follow-up interviews took place between 1998 and 2000. The
interviews were designed to reveal the presence or absence of rights consciousness
and the influence of the ADA at various moments in the participants' employment
experiences, as the study was confined to the impact of the employment provisions
of the ADA (p.18). Eight were then selected for a repeat interview (and six
opted to participate). Those participating in this part of the study had the
opportunity to critique their life stories as written by the authors. The
narratives themselves are interspersed throughout the text with the editorial
suggestion of the subject included in italics. Inclusion of the narratives
enriches the text by vividly demonstrating the authors' ideas and theories.
Not surprisingly, the life story narratives suggest that
a multiplicity of factors shape identity. The factors that emerge conform,
I suspect, with what most social scientists would predict. Social class, gender,
race and religion all emerge in the life story narratives as relevant forces
in how these individuals have constructed their identity. In turn, these forces
and the corresponding identity all contribute to the process that operates
over time to make rights more or less active in people's lives.
To these characteristics, Engel and Munger add the way in
which one understands his/her disability. One of their most significant findings,
perhaps, is the suggestion that those able to establish clear boundaries between
their disability and their sense of self are more likely to invoke rights
than those for whom the lines are blurred. Those without such clear boundaries
are more likely to question their right to participate fully in mainstream
settings and to receive accommodations (p.67). Of course, race, class, and
gender contributed how the disability was understood; however, when, how,
and by whom the disability was defined also mattered tremendously. Social
networks and the role of family and friends thus becomes a powerful force
in determining the significance of rights discourse in the daily lives of
those presumably entitled to reasonable accommodations in employment as guaranteed
by the ADA.
Perhaps the most significant aspect of this approach is the
emphasis on the process of identity construction that is dynamic and ongoing.
The notion that identity may well be the single most significant determinant
of whether rights are invoked is, while not novel, still provocative. Indeed, the authors state explicitly that
identity is a better predictor of the exercise of civil rights than either
rational choice or cost-benefit calculations. That identity is fluid, and
can be shaped by the law itself, is an important idea and merits the considerable
attention it receives in the text. Not surprisingly, then, the effects of
the ADA are variable across those in the study depending on their sense of
self. Invoking rights does not necessarily entail
formal legalities of litigation, but also includes negotiating accommodations
with an employer or initiating an employment change because of lack of accommodation
or sense of inclusion. Thus, "the ADA's most important effects have occurred
through its broad and pervasive impact on our culture rather than through
the adversarial rights claims it makes possible" (p.103).
This new theory of rights-that rights become active, often
in informal, non-adversarial contexts, sometimes without the effort or knowledge
of the rights holder-is an important advance in the law and society scholarship.
It provides a framework within which
we can understand the paradox noted early in the text by Engel and Munger
about the role of rights in U.S. society. While symbolically central in U.S.
political discourse, the conventional wisdom is that they are too rarely activated.
Yet, this theory allows those two seemingly incompatible views to be reconciled.
Still, as much as I appreciate and respect this movement
toward a new theory of rights, I was left vaguely unsettled by the inability
to provide many generalizations. While the analysis suggesting that social
constructs such as race, class, gender and disability shape identity and ultimately,
the activation of rights, there was not a clear enough sense of how and when
those constructs lead one to activate rights (or not) and how rights might
be activated. In other words, for example, one could argue that a wheelchair-bound
woman does not activate rights because her identity formation was influenced
by a particular construction of gender. Another woman may well activate rights
because her identity formation includes a less traditional view of what it
means to be female. But most of the theorizing, then, is post hoc. It is difficult, at least at this point as the theory
emerges, to generate a model with much predictive value. Perhaps that is the
point, which returns me to my initial observation.
Perhaps the text's greatest contribution is methodological,
providing an alternate approach to comprehend the relationship between law
and society. In that sense, the book adds to the ongoing scholarly conversation
about the limits of various social science models for understanding the reality
of law and politics in the daily lives of people. As Engel and Munger argue
for an emphasis on the process of identity formation, they demonstrate an
alternative process for understanding the effects of the ADA. The life story
narratives are effective in allowing subjects to critique their own chronicles
gives them voice and ownership in ways that make good sense. However, it still
seems possible that the life stories selected illustrate an a priori argument rather than representing the universe of data
that test a theory. Maybe more detail on how and why the sample was narrowed
would be beneficial. It is clear that the authors had selection criteria but
those criteria are not fully explicated in the text.
In sum, RIGHTS OF INCLUSION is an important, interesting
and significant piece of scholarship. It is appropriate for undergraduates
examining the relationship between law and society, as it is accessible, engaging
and provocative. The epistemological dimension would sustain a graduate level
discussion. And because of the questions raised by the book, the way the questions
are raised as well as the answers provided, it is worthwhile reading for all
scholars interested in a richer understanding of the relationship between
law and society
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Copyright 2004 by the author, Lauren Bowen.