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BETWEEN HOPE AND EVIL: REFRAMING DISABILITY

ALLOWANCES

Sagit Mor∗

ABSTRACT
The paper identifies and traces the roots of a fundamental tension that underlies
disability politics with regard to disability allowances: are cash benefits an archaic
and outdated form of assistance to disabled people, or are they still a relevant mode of
response to systematic marginalization and exclusion? Based on a field study of the
Israeli disability community the paper shows that while disability rights advocates
tend to reject disability allowances as fundamentally wrong and to support the
transformation of society's social structures, welfare activists tend to view disability
allowances as responding to the most pressing needs of poor disabled people. The
paper employs a disability legal studies framework to analyze the study’s findings. It
suggests thinking of disability allowances as located in a complex and intriguing
tension between two dichotomous conceptualizations of either evil or hope: Disability
allowances are seen as a manifestation of evil because they perpetuate the ableist
structure of society. They offer a vision of hope when seen as a response to a pressing
necessity, an expression of social responsibility, and a means to provide economic
security for disabled people. The paper maintains that both approaches lack a more
complex understanding of the relationships between disability and poverty. It
concludes with a call to re-conceptualize disability allowances, as a form of
compensations that redress disabled people – individually and collectively – for
society's continuing practices of exclusion and discrimination. The struggles of
disabled people over rights and allowances become a fascinating site from which to
draw the critical lessons that disability activism has to offer to social theory.


Assistant Professor, University of Haifa Faculty of Law. LL.B., Tel Aviv University.
LL.M. and J.S.D., NYU School of Law. This work was supported in part by the Ed Roberts
Postdoctoral Fellowship in Disability Studies, at the Institute of Urban and Regional
Development, University of California at Berkeley, funded by NIDRR #H133P020009. I am
grateful to the following people for their insightful and helpful comments: to Christine
Harrington, Carrie Menkel-Meadow, Oscar Chase, Jerome Bruner, Sue Schweik, and Victor
Weinberger, to the participants at the Disability Studies Seminar, University of California at
Berkeley, the Law and Society Association Annual Meeting, the Society for Disability Studies
Annual Conference, and the Haifa Forum of Law and Society. All translations from Hebrew are
mine, unless otherwise noted. Email: smor@univ.haifa.ac.il.
Sagit Mor 2

Contents:
Introduction
A. Disability and Poverty – Challenging Relationships
A.1. The Overlaps between Disability and Poverty
A.2. The Constitutive Relations between Disability and
Poverty
A.3. Group Consciousness and Inter-Group Relations
B. A History of Disability Allowances in Israel
C. Disability Allowances as Hope: A Social Welfare Perspective
C.1. The Disability Allowances Protests
C.2. The Role of Disability Allowances in Disabled People’s Lives
D. Disability Allowances as Evil: A Disability Rights Perspective
D.1. Equal Rights for Disabled People – A Means to Transform
Rights and Welfare
D.2. The Equal Rights for People with Disabilities Law – Avoiding
Disability Allowances
D.3. Explaining the Absence of Disability Allowances
D.4. Reactions to the 1999 and 2001 Protests
E. Between Hope and Evil: Rights and the Persistence of Poverty
F. Towards Reframing Disability Allowances

We are given poor and miserable allowances so that we stay alive and
be silent. They say: “Nobody can tell us that we are an immoral
society, because you are alive.” But what kind of life are we talking
about here? I am struggling so that a disabled person can be part of
society, and this starts with money and food. I want the disabled to
live in dignity, to be able to go to work and to contribute to society.
Yoav Kraim, Campaign for Handicapped
Persons, 2002 1

Introduction
The rise of disability rights has changed the language of disability-related
disputes and struggles – from charity to rights, from a biomedical paradigm
to a social construction perspective, from an individualist focus on fixing and
curing the person to an effort to transform society. This change has also
impacted legal scholarship, which has become increasingly more interested

1 Hagar Yanai, Things I Learned while Sitting, Ha’aretz, 11/1/2002 (A profile piece in
Ha’aretz Magazine).
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not only in disability rights but also in the social construction of disability and
the role of law in that process.
The paper examines the sociolegal construction of disability, focusing
on different attitudes among disability activists toward disability allowances.
The paper is part of a larger project which demonstrates that disability
benefits came to play a major role in defining and constituting the meaning of
disability. It is further argued that due to their significant effect, disability
benefits merit greater attention than that currently allotted by disability rights
activists and scholars. The paper draws on an in-depth field study of the
Israeli disability community during a particularly intensive era, when Israeli
disabled people began fighting vocally over rights, recognition, and economic
security. The struggles of disabled people in Israel have become a fascinating
site from which to draw critical lessons pertaining to social theory.
The field study revealed that within the disability community,
different groups hold different views about disability allowances. While all
are interested in breaking the historical link between disability and poverty,
they do not share a vision about the way to do it. Disability rights’ advocates
(in Israel and elsewhere) tend to reject disability allowances as fundamentally
wrong and support instead the transformation of social structures and
institutions. In contrast, welfare activists tend to view disability allowances as
a most important issue which addresses the most pressing needs of poor
disabled people who cannot wait until the rights revolution becomes a reality.
Given this dichotomy, this study poses the following question: Should
cash benefits be considered an archaic and outdated form of assistance for
disabled people, or are they still a relevant mode of response to systematic
marginalization and exclusion? Do they serve as a manifestation of ableism or
a way to fight it?
This intriguing tension became apparent during two long sit-in strike
campaigns of disabled people in Israel that took place in 1999 and 2001. 2 The
two campaigns were organized by disabled people and were very successful
in bringing the issue of disability allowances to the forefront of the national
agenda and in spurring strong and compassionate public support.3 The strikes

2 For a more detailed account of those protests, see Chapter C. For additional reading

on the protests and their implications, see: Arie Rimmerman & Stanley S. Herr, The Power of
the Powerless: A Study on the Israeli Disability Strike of 1999, 15 J. DISABILITY POL’Y STUD. 12, 15
(2004); Hila Rimon-Greenshpan, Disability Politics in Israel: Civil Society, Advocacy, and
Contentious Politics 27(4) DISABILITY STUD. QUART. (2007).
3 The information on the Campaign for the Handicapped and on their activities during

the strike is based on interview with two of its primary figures, Arie Zudkevich and Yoav
Kraim; In Struggle – The Bulletin of the Disabled Union, Vol. 1-3; the organization’s website (see:
Sagit Mor 4

lasted 37 and 77 days, respectively, during which a core of activists, mainly


with mobility impairments, spent their days and nights in a tent that was
placed in front of government buildings in Israel’s capital, Jerusalem. Both
campaigns were mainly concerned with social welfare benefits for disabled
people, particularly cash benefits. The main demand was to bring disability
insurance allowances up to par with minimum wage in Israel, which is
regarded as a minimum standard of dignified living.4 The protests were also
concerned with additional related issues, such as disability allowances for
homemakers and for the elderly, disability healthcare services, and more.
Both strikes came to an end after the relevant Israeli government office signed
an agreement accepting some of the strikers’ demands. Yet the significance of
these protests transcended their concrete results: both incidents became
movement building events, unique instances in which the voice of disabled
people was heard, rare moments of solidarity in action.
However, a closer look at the disability community’s reactions to the
protests reveals inner conflicts. While all activists in the field agreed that the
strikers’ demands were justified, not all agreed with their choice of goals, the
language they used, the implications of their message for the meaning of
disability, or their vision of disabled people’s place in society, as reflected in
their struggle.5 Disability rights’ advocates were particularly conflicted,
because their intent was to reject the old schemes of welfare and charity and
turn towards the new possibilities that rights entail. For them, this was an old
type of struggle, of the kind they wished to transform. By emphasizing
disability allowances and by using images of disabled people as miserable,
poor, hungry, and sick, the sit-in strikes seemed to take a step backward,
threatening the fragile achievements of the disability rights era.
The paper traces the roots of the conflict between the disability rights’
advocates and the strikers, from the perspective of disability legal studies
(DLS). DLS is a theoretical framework for the study of law and disability,
which I have identified, labeled, and developed elsewhere.6 It is a branch of
critical legal theory that incorporates the lessons of disability studies, as

http://www.media4u.co.il/nechim/main.asp (in Hebrew) and reports from Israeli


newspapers from that time (particularly Ma’ariv and Ha’aretz).
4 At the time of the protests, disability allowances were approximately $400 per

month, minimum wage about $800 per month. Average wage was $1500.
5 The strikers were criticized for using images that evoked pity and mercy among the

general public rather than dignity and rights. See Chapter D.4.
6 Sagit Mor, Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of

Privilege and Neglect in Israeli Disability Policy, 18 Yale J.L. Hum. 63 (2006); Sagit Mor, Imagining
the Law: The Construction of Disability in the Domains of Rights and Welfare – The Case of
Israeli Disability Policy (J.S.D. Thesis submitted to NYU School of Law, 2005).
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elaborated in the humanities and social sciences, a thick socio-legal analysis.


The primary tenet of disability studies is that disability is a socially
constructed category rather than an inherent, objective, or fixed trait that
resides within the disabled person. Disability studies focuses on the complex
ways that economic relations, cultural meanings, social practices, and
institutional settings participate in the disablement of persons, and analyzes
the forms and manifestations of the dis/ability power system in various social
practices and institutions. It also examines the portrayal of disabled people as
inferior, useless, abnormal, and a burden to society. As a method, the
discipline requires listening to voices and experiences of disabled people and
incorporating them into its findings and critiques. In DLS, these underlying
principles are applied to the study of law. DLS focuses on critique of legal
doctrines, institutions, concepts, and practices, as it examines the role of law
in the social and cultural construction of disability.
Using a DLS approach, this study calls for the re-thinking and
re-conceptualization of the meaning and function of disability allowances, as
well as the further investigation of the relationships between disability,
poverty, and rights. Following the findings presented here, I suggest in this
paper that disability allowances are currently thought of as a concrete
manifestation of either hope or evil. The dichotomy between these two views
creates a complex and intriguing tension: on the one hand, disability
allowances are seen as a manifestation of evil because they perpetuate the
ableist structure of society. They offer a vision of hope, on the other hand,
when seen as a response to a pressing necessity, an expression of social
responsibility, and a means to redress the continuing wrongs of ableism and
to provide economic security and human dignity for disabled people.
The study examines the claims with which each perspective challenges
the other. It is suggested that disability rights’ advocates have disregarded
the urgent needs of disabled people as they failed to create a model that can
guarantee economic security (e.g., through social welfare or social security
mechanisms). At the same time, welfare advocates have neglected to develop
a structural and comprehensive critique of welfare (of disability allowances, in
particular). Both sides, I argue, have fallen short of addressing vital concerns
of this community. The current study introduces a different view of disability
allowances, based on the possibilities that a right to social security or to
minimum standards of living might entail. This approach considers disability
allowances a collective form of compensation that redresses society's ongoing
and practices of exclusion of and discrimination against disabled people.
The implications and contribution of this study are not limited to
disability politics or to the Israeli context. Rather, the suggested critique
presents a challenge that is representative, as it carries lessons for the general
Sagit Mor 6

politics of poverty and rights, particularly for struggles over cash benefits,
and for the possibility of coalition building around those issues.
Chapter A discusses the relationships between disability and poverty,
and suggests transcending the view of disability and poverty as two distinct
concepts – albeit with overlaps and correlations – in favor of a more critical
view, which emphasizes their contingencies and mutual relations. Chapter B
provides a short introduction to the history of disability allowances in Israel.
Chapter C and D delve into the details of the two perspectives on
disability identified in my fieldwork. Chapter C discusses the social welfare
perspective on disability allowances as expressed by the activists who led the
long protests, a view which associate allowances with hope. Chapter D
analyzes the view of disability allowances as evil, as expressed by disability
rights’ advocates, particularly in their reactions to the protests.
Chapter E explores the tension and the gamut between evil and hope,
without necessarily seeking to resolve it. It provides a more detailed critique
of the disability rights discourse, which is based on the realistic
understanding that poverty is a sustained problem that can neither be ignored
nor assumed to soon become irrelevant. The chapter therefore suggests that
the issue merits an approach more complex than that of a simple dichotomy:
it proposes that disability allowances be acknowledged as an undesirable yet
unavoidable necessity. Chapter F proposes possible alternatives for
reconsidering disability allowances – what they should cover, and how they
should be understood. It is argued that this new approach views disability
allowances as an expression of solidarity and social responsibility: it is society
paying its debt, by supporting disabled people as they bear the extra
disability-related costs in a society that has been and still is inaccessible and
unaccommodating.
Before I proceed, a few caveats are due. First, my goal is not to provide
a detailed reform proposal but to expand the social imagination to alternative
conceptualizations of disability allowances, to continue the discussion about
their role and meaning. For the same reason, budgetary concerns are beyond
the scope of this discussion, although I do not ignore their significance in later
stages of implementation. Finally, the concept of disability allowances
envisioned here does not assume that establishing disability allowances is an
end unto itself, nor that it would constitute the ultimate solution to the
problems of marginalization and exclusion of disabled people. Nor is it
assumed that conceptualizing disability allowances as a right – and I discuss
later what this means – would ensure that they remain a firm and secure.
7 BETWEEN HOPE AND EVIL

social structure.7 However, I do think that understanding the dis/ability


power system entails acknowledging the necessity of disability allowances.
The recognition that disability allowances are essential goes hand in hand
with the aspiration that there will come a day when they will not be necessary
anymore, at least not in the lives of so many disabled people.

A. Disability and Poverty: Challenging Relationships


Understanding the historical, political, and socioeconomic context of disability
allowances requires a closer look at the relationships between disability and
poverty. In this chapter, I suggest two general perspectives. The more
common approach views disability and poverty as two distinct concepts that
refer to two distinct groups of people, however, there are points of overlap
and correlation between them. According to the second, less prevalent view,
both disability and poverty are perceived as socially constructed, fluid and
contingent phenomena, which historically have been co-constitutive, intensely
intertwined, and mutually-dependent upon one another. Both perspectives
are important, and together they enrich our understanding of the role
disability allowances play in disabled people’s lives. Nevertheless, it is the
latter view that allows for a more complex understanding of poverty and
disability to develop and, consequently, for the evolution of a more critical
approach to disability allowances.
A.1. The Overlaps between Disability and Poverty
The first perspective is widely accepted, as it highlights the fact that, not only
are disabled people disproportionately poor, but poor people are also
disproportionately disabled.8 Although such an approach may take these
categories “as they are” without questioning their histories or the power
dynamics within which they are situated, it nevertheless shows an important
connection between disability and poverty, according to which disabled
people are more likely to become poor and poor people are more likely to

7 I also do not suggest that rights are the best solution to disabled people’s social

hardships and suffering, or the most effective form of resistance. I take rights as the current
comprehensive legal language with which to address the marginalization and exclusion of
disabled people.
8 Rebecca Yeo & Karen Moore, Including Disabled People in Poverty Reduction Work:

Nothing About Us, Without Us, 31 WORLD DEVELOPMENT 571 (2003); Dan Atkins & Christie Guisti
The Confluence of Poverty and Disability in THE REALITIES OF POVERTY IN DELAWARE 2003 – 2004
(2004) (available on:
http://www.housingforall.org/rop0304%20poverty%20and%20disability.pdf). Although a
recent survey by the World Bank shows that there are not enough accurate statistics about the
relationships between disability and poverty, when there have been such statistics these
relationships have been proven right. See: Jeanine Braithwaite & Daniel Mont, Disability and
Poverty: A Survey of World Bank Poverty Assessments and Implications (2008).
Sagit Mor 8

become disabled. Thus, whether one thinks that most, or many, disabled
people are inherently unable to work, or that the social and environmental
barriers prevent disabled people from working, both views demonstrate a
close correlation, and sometimes even a causal link between having an
impairment and becoming poor, a correlation which calls for special attention.
There are, of course, many disabled people who are employed and earn their
own living. Yet a considerable number among them are still poor, because of
low wages, limited working hours, and high payments for disability related
costs.9 Clearly, some disabled people may also support themselves using
public or private funds that provide them with the required financial support
(e.g., family resources, public assistance, social security benefits, and charities
of all kinds); however, as statistics show, the unemployment rates among the
disabled remain indisputably high, even after the introduction and enactment
of disability rights laws.10 The challenge of breaking the link between
disability and poverty lies at the heart of recent welfare reforms, and informs
contemporary disability rights laws.
But disability is also an outcome of being poor.11 An insufficient
standard of living can include health risks that lead to illness and impairment.
Thus, for example, malnutrition, unsanitary conditions, and outdated
infrastructures, which are more prevalent in poor areas, are recognized causes
of disability. In addition, access to healthcare, rehabilitation and vocational
services is a chief factor that ultimately determines the degree of disability
remaining after exposure to a disabling event.12 This recognition lays the
foundation for the second, more complex, understanding of the relations
between poverty and disability. The latter considers the poverty-disability
connection to be a product of social construction, rather than of chance and
individual circumstances.

9 Martha Russell & Ravi Malhotra The Political Economy of Disablement: Advances and

Contradictions in SOCIALIST REGISTER 2002: A WORLD OF CONTRADICTIONS (L. Panitch & C. Leys
eds., 2002); Asghar Zaidi and Tania Burchardt, Comparing Incomes when Needs Differ:
Equivalization for the Extra Costs of Disability in the U.K. 51(1) REV. OF INCOME AND WEALTH
(2005), Yeo and Moore, Id.
10 For such statistics in Israel, see Dina Feldman & Eliyahu Ben-Moshe, People with

Disabilities in Israel 2007: A Comparative Report (2007). For a United States perspective on the
matter, see JERRY MESHAW ET AL. EDS., DISABILITY WORK AND CASH BENEFITS (1996).
11 Yeo and Moore, supra note 8; Atkins & Guisti, supra note 8; Katherine Seelman &

Sean Sweeney, The Changing Universe of Disability, 21 AM. REHABILITATION 2 (1995).


12 GARY L. ALBRECHT, THE DISABILITY BUSINESS 14 (1992); SUSAN WENDELL, THE REJECTED

BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 36-37 (1996); Regina Austin & Michael
Schill, Black, Brown, Poor, and Poisoned: Minority Grassroots Environmentalism and the Quest for
Eco-Justice, 1 KAN. J.L. & PUB. POL’Y 69 (1991).
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A.2. The Constitutive Relations between Disability and Poverty


The second perspective is more critical towards the very boundaries and
definitions of both categories. According to this view, disability and poverty
are closely connected and co-constitutive, as is shown by the history of the
modern welfare state as well as by recent accounts of disability rights
struggles.13 In fact, the boundaries between disability and poverty have
historically been a matter of constant negotiation, subject to persistent
attempts to associate and disassociate between the two categories, to draw
them together and to set them apart. Drawing the boundaries was
fundamental to capitalism’s definition of the labor force and to welfare’s
definitions of desert and need.14 As Deborah Stone has most clearly shown,
the structure of many modern welfare states is rooted in the line drawn
between the disabled and the nondisabled as a means of distinguishing
between those who are exempt from work, and those who are required to
earn their own income.15
The English Poor Laws, for instance, were a well-known historical
attempt to distinguish the deserving from the undeserving “idle” poor,
between those who were eligible for charity and protection of the state and
those who were expected to work.16 Similarly, the debates in the Unites States
over social security programs involved questions about the fluid boundaries
between the two categories. Deciding the components of the definition was a
major issue, particularly since an emphasis on medical versus socioeconomic
constraints could broaden or narrow the scope of the population covered by
the program.17 The link between the employability of disabled people and
larger social processes was most vividly exposed during World War II, when
similarly to women, disabled people, too, suddenly enjoyed higher rates of
employment in the United States.18 As Harlan Hahn puts it, disabled people

13 Yeo and Moore, supra note 8; Jennifer Pokemoner & Dorothy E. Roberts, Poverty,

Welfare Reform, and the Meaning of Disability, 62 OHIO ST. L. J. 425 (2001).
14 N. GILBERT AND H. SPECHT DIMENSIONS OF SOCIAL WELFARE POLICY (2nd Ed., 1986).
15 DEBORAH A. STONE, THE DISABLED STATE, (1984).
16 STONE, Id., at Chapter 2.
17 In the end, there were three major types of programs: a work injury program that
was enacted in 1935, a disabled workers program from 1956 that covered all contributing
workers who paid their social insurance fees (SSD), and a general public assistance program
that covered disabled people who could not enjoy social insurance programs. STONE, Id.;
Williams H. Simon, Rights and Redistribution in the Welfare System 38 STAN. L. REV. 1431 (1986);
Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal
Legislation and Social Policy for People with Disabilities, 40 UCLA L. REV. 1341, (1993);
18Harlan Hahn, Advertising the Acceptable Employable Image: Disability and Capitalism,in
THE DISABILITY STUDIES READER 172 (Lennard J. Davis ed., New York ,1997)
Sagit Mor 10

were, and still are, treated as part of the “industrial reserve army” for times of
employment shortage.19
In Israel, too, the historical public assistance system (the Sa’ad), and
later on, disability insurance, were engaged in drawing the boundaries
between disability and poverty.20 The definition of disability in the disability
insurance program employs a combined test that is meant to determine
whether a person is able to reach a minimum income level, or if her income
capacity should be officially reduced (50% or more).21 The test includes both a
medical and a socioeconomic component, each of which represents a different
rationale for the boundaries between the categories. The medical one assumes
a static understanding of disability, which differentiates between those who
due to their disability cannot work and those who are able to work, a
reminder of the traditional understanding of the deserving poor. The second,
socioeconomic component suggests a more flexible and dynamic
understanding of disability, and therefore calls for an even closer examination
of its definition and use of socioeconomic factors. In any event, the result of
this test is clear: those who were not considered “sufficiently” disabled
remained in the realm of mere poverty. In Israel, for instance, a person with
35% medical disability is not disabled in legal terms, at least not for the
purpose of general disability allowances.22 If unemployed, this person might
be able to enjoy general supplemental income, under the National Insurance
program available to anyone who is unemployed and living in poverty.23
But not only general disability allowances are affected by the
disability/poverty dyad. Other disability allowance programs, such as those
for disabled veterans or disabled workers, are also subject to its impact.24
Unlike general welfare programs for disabled people, which are usually based
on the welfare-related principle of need, other programs are based on
principles of insurance or desert. Such programs are designed to benefit
specific groups of disabled persons, whose disablement was a result of

19 Id.
20 Mor, supra note 6. For a short history of Israeli disability allowances regime, see
Chapter B.
21 National Insurance Law (consolidated version), 5755-1995, Chapter 9 §§ 195-225B

(originally passed as National Insurance (Amendment No. 13) Law, 5733-1973, 27 L.S.I 233
(1972-73)). The formal name for the disability insurance program is “Invalidity Insurance,” but I
shall call it the general disability insurance, or disability insurance.
22 Interestingly, the level of medical disability required to be eligible for work injury

insurance or disabled veterans allowances is much lower and is not accompanied by a working
capacity test or socioeconomic standards.
23 Assurance of Income Law, 5741-1980, 35 L.S.I. 28 (1980-81).
24 See Chapter B for a short review of disability allowances in Israel..
11 BETWEEN HOPE AND EVIL

circumstances in which the state had an interest and to which society is


committed.25 Desert and insurance as grounds for benefits are unrelated to the
person’s socioeconomic situation in determining whether one is disabled.
Instead, they examine whether she had insurance (like social security) or
whether the circumstances of her disablement fall under the relevant law’s
well bounded definition of eligible persons (e.g., military- or work-related
injury).26
Nevertheless, it is my contention that even desert- and insurance-
based programs cannot avoid the tension between disability and poverty. As
products of social welfare policy, they were motivated by poverty related
concerns as well. While these programs do not explicitly consider their
beneficiaries’ level of poverty, they typically provide them with benefits much
better than those provided by social security programs, consequently allowing
them to lead a more dignified life. As argued earlier, the motivation behind
those programs was informed not only by whom their beneficiaries were, but
also by whom they were not.27 The scheme of disability benefits was based on
the view that there are groups of disabled persons that deserve to live with
economic dignity: unlike “ordinary” disabled people, these meritorious
groups should live neither in poverty, nor on the edge of the poverty line.
Implicit in this scheme of benefits is the notion that the beneficiaries of the
general disability program are not deserving of economic dignity and
security. Although a distinction is drawn between the disabled and the
general poor, it is marked by a very thin line, which is essentially minimal and
fragile. Indeed, society supports the disabled, allowing them to live, but their
survival is craftily maintained below the poverty line. Consequently, for the
privileged groups of disabled people, becoming poor is in fact the ultimate
mark of becoming “truly” disabled. I therefore suggest that unlike general
disability allowance programs, which are usually similar to public assistance
programs, the programs for disabled workers and disabled veterans can be
understood as sincere attempts, not only to break the link between disability
and poverty, but also to unravel the ties that bind the disabled together, as
they create an artificial separation between the deserving and the undeserving
disabled, between those who deserve economic dignity and those who do not.
More recently, newly enacted disability rights laws have introduced a
different vision regarding the place of disabled people in society, a place that
would be liberated from poverty and even from social welfare. These laws
show that the relationship between disability and poverty has been the

25 See John Gal, The Perils of Compensation in Social Welfare Policy: Disability Policy in

Israel, 75 THE SOCIAL SERVICE REVIEW, 225, 235 (2001); Mor, supra note 6.
26 Mor, supra note 6.
27 Mor, supra note 6.
Sagit Mor 12

concern not only of the welfare imagery that has been occupied with disability
and poverty, but also of the rights imagery which has created new and, in
some sense, revolutionary means to realize the vision of a more equitable
society. Laws against employment discrimination of disabled people and
rules concerning accommodations in the workplace have been the primary
mechanism through which this has occurred. In one provocative article,
Samuel Bagenstos even argues that the Americans with Disabilities Act
(ADA) was marketed and perceived by the public as a welfare reform, since
the goal was to make disabled people more productive and self-reliant and to
take them off welfare rolls and put them on payrolls.28 The actual goal of
disability rights activists has been, of course, much broader, as they hoped to
transform society and to alter the image of disabled people from dependent,
inferior, and useless, to independent, equal, and productive members of
society. However, in the aftermath of the new legislation, high unemployment
rates persisted and the number of disability benefit recipients grew larger,29
proving that non-discrimination provisions were insufficient to overcome the
long history of discrimination and exclusion of disabled people.
This study will demonstrate that the strategic shift from welfare
concerns to disability rights resulted in a neglect of disability allowances.
Based on the case study of disability protests in Israel and a review of
additional disability rights schemes, I argue that the underlying reason for
such neglect was an implicit aspiration to break away from the historically
tight link between disability and poverty.
A.3. Group Consciousness and Inter-Group Relations
The disability-poverty predicament evokes an additional set of issues that are
related to the realm of group consciousness and inter-group relations.30
Separating disability from poverty generates a politics oriented towards the
inner group, which encourages disabled people to find what unites them as a
group and what distinguishes them from others. It allows disabled people to
distance themselves from pity, misery, and indigence, and instead dedicate
their efforts to fostering activism in the realms of disability pride, identity,
and culture. Yet this direction contributes to the creation of more rigid

28 Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 WM. &

MARY L. REV. 921, 930-52 (2003) (Bagenstos shows how the ADA was warmly accepted by
policymakers because it was understood as a welfare reform that would reduce welfare
recipients, a view that is problematic because accommodations are not enough of a measure to
overcome the long history of exclusion of disabled people from the labor force).
29 JERRY MESHAW ET AL. EDS., DISABILITY WORK AND CASH BENEFITS (1996); KALMAN RUPP
AND DAVID STAPLETON EDS., GROWTH IN DISABILITY BENEFITS (1998).
30These concerns seem to be beyond the scope of this paper, but at the same time, they
cannot be totally ignored.
13 BETWEEN HOPE AND EVIL

boundaries between disabled people and other social groups. As Nancy


Fraser so eloquently explained, such inward group-based politics is part of a
“politics of recognition” climate, in which identity-based social movements
distance themselves from the politics of distribution.31
The immediate result of inward group-based politics in this case is the
prevention of a unified front with other social groups fighting poverty and,
concurrently, an even greater denial of poverty as a continuing concern for
disability activism. Conversely, the linking of disability and poverty through
intra-group politics, obscures the boundaries between disadvantaged social
groups, thus allowing for a greater accumulation of power through alliances
and coalition building.32 This is needed, not only because – as the Marxist-
Socialist argument goes – the most fundamental power structure in society is
that between capital owners and the capital-less proletariat, nor is it
motivated by the fact that all disadvantaged groups are disproportionately
poor. Rather, the intra-group association is essential primarily because the
intersections among the various identity axes allow the inclusion of a variety
of social categories, including gender, race, and ethnicity, all of which are also
inexorably constitutive of and constituted by poverty.33
The issue of coalition-building with other groups in the realm of
disability allowances is particularly challenging. It requires comparing the
forms of poverty that disabled people experience with those typical of other
groups. It also questions the implicit meaning of a struggle for dignified
disability allowances: Are disabled people the only group that deserves to
live above the poverty line, while the other poor remain below? This latter
concern is interesting, because it returns full circle to the critique of the
invention of disability allowances as a policy that creates a distinction
between the deserving and the non-deserving. Yet to question the origins of
this distinction is to question the need for disability allowances altogether.
Instead, as this study suggests, other justifications should be developed in
order to maintain this divide (assuming that it should be maintained). One
incontestable differentiating criterion may be the different living expenses that
disabled people must bear, due not only to their particular impairment but
also to the discrimination and exclusion imposed on them by society.

31NANCY FRASER, THE RADICAL IMAGINATION: BETWEEN REDISTRIBUTION AND


RECOGNITION (2003); NANCY FRASER AND AXEL HONNETH, REDISTRIBUTION OR RECOGNITION? A
POLITICAL-PHILOSOPHICAL EXCHANGE (2003).
32 Malhotra Ravi, The Politics of the Disability Rights Movement, 7(3) NEW POLITICS 65
(2001).
33Pokemoner & Roberts, supra note 13 (claiming that disability and illness are
distributed in ways that reflect gender, racial, and economic inequalities).
Sagit Mor 14

The circularity and the paradox inherent in the argument for disability
allowances create a predicament for the disability community. The issues
informing this predicament are analyzed in the following section. They infuse
the debate on disability allowances and are infused by it. Clearly, these
questions concern both disabled individuals as well as the disabled
community as a collective seeking both inter- and intra-group solidarity.

B. A History of Disability Allowances in Israel


A short historical review of the Israeli context, which is the locus of this
inquiry, is required at this stage. Through the years, Israel developed three
major models of disability allowances, which include eighteen separate
programs for different groups of disabled people.34 The first model was based
on the benefits for disabled veterans. The Invalids Law, 1949,35 was the first
welfare law in Israel and it was passed one year after the establishment of the
State of Israel. The second model was based on the Work Injury Program of
the National Insurance Law, which was passed in 1954.36 The general
population of disabled people who needed financial support received public
assistance benefits (Sa’ad) until 1974, when the Disability Insurance Program
took force. The different programs represent different rationales and accord
different benefit schemes.
The Invalids Law, based on principles of desert,37 established a
comprehensive system of in-kind and in-cash benefits, including a specially-
developed system of social services. The Work Injury Program was based on
principles of insurance and desert. It was not a general program for any
worker who paid social insurance and became disabled in any circumstances,
but rather a program solely for those workers whose injury was work-related.
The individuals in this group enjoyed a basic allowance that was adequate in
most cases (depending on one’s previous income) as well as additional related
allowances and services that were not very well-developed but allowed some
support. The Disability Insurance Program, which stands at the center of this
study, was enacted only in 1974 as part of a general reform in Israel’s social

34For detailed reviews of these models, see: URIEL PROCACCIA & ARIE L. MILLER, THE
RIGHTS OF THE DISABLED IN ISRAEL: BASIC ISSUES 12 (1974) (Hebrew); Gal, supra note 25; Mor, supra
note 6.
35 Invalids (Pension and Rehabilitation) Law, 5709-1949, 3 L.S.I 119 (1949) 1959 law. In

1959, a consolidated version was published: Invalids (Pension and Rehabilitation) Law
[Consolidated Version], 5719-1959, 13 L.S.I. 315 (1958-59) (hereinafter: the Invalids Law).
36 National Insurance Law, 5714-1954, 8 L.S.I. 4 (1953-54).
37 Gal, supra note 25. In this article, Gal provides a detailed account of the relationships

between three allocative principles (desert, insurance and need) and their application to the
various welfare programs for people with disabilities in Israel. To read more on the three
principles, see GILBERT & SPECHT, supra note 14.
15 BETWEEN HOPE AND EVIL

welfare policies. It was based on the principle of need and accordingly


granted a minimal allowance, not very different from that afforded by the
public assistance program that preceded it (20% and later on 25% of the
average wage in Israel). The law also established a mechanism for obtaining
an attendance allowance and, later, a mobility allowance was added. The law
also provided rehabilitation services, a branch that was not well developed.
During its early years, Israel was particularly slow to develop social
services for the general population of disabled people. As a result, a
proliferate scene of voluntary private sector organizations evolved which,
filling the role overlooked by the state, developed its own services. These
organizations were usually funded by Jewish contributions from abroad and
grants from the state. During that era, the laws relating to such services were
mainly protective laws, which very poorly regulated the treatment of
individuals who lived in residential institutions or who were hospitalized for
psychiatric care.
During the 1980s, parents of children with disabilities and disabled
people themselves began challenging the social structure that effectively
rendered disabled people marginal and useless. That process led to the
increased activities of the 1990s, which culminated in the enactment of the
Equal Rights for People with Disabilities Law, 1998 (ERPWDL). This article
focuses on that later era, during which so much had shifted in terms of
disability activism. As the following discussion reveals, it was an era marked
by coalition building and solidarity in action, on the one hand, as well as by
conflicts, on the other hand, regarding the direction the movement should
take, the definition of the most important and pressing issues around which to
unite, and the ways to promote them.
In the following I suggest my own observation, based on fieldwork
conducted during 2002. My research examined the conflicts and tensions that
existed then among the disability community in Israel with regard to
disability allowances in general and to the disability protests, in particular.

C. Disability Allowances as Hope: A Social Welfare Perspective


C.1. The Disability Allowances Protests
Understanding the atmosphere during the 1999 and the 2001 sit-in strikes and
their impact requires further elaboration. The 1999 strike erupted
spontaneously and was soon a success. It started with a spontaneous initiative
of a group of individuals with mobility impairments and lasted 35 days.38 The

38 On the strike and its achievements, see, In Struggle – The Bulletin of the Disabled Union,

Vol. 1, March 2001 (a bulletin published by the Campaign for the Handicapped, an organization
that was formed during the 1999 strike and that led the second strike, as well).
Sagit Mor 16

impetus was disappointment with the Equal Rights for Persons with
Disabilities Law (ERPWDL), which had not yet brought the anticipated
changes, and in particular, the increasing economic hardship, which was
linked to the inadequacy of disability insurance allowances.39 While the strike
started with a broad agenda that included issues of accessibility, housing, and
the implementation of the ERPWDL, these issues quickly dissipated.
Eventually the strike was essentially about disability benefits, i.e., disability
insurance stipends, mobility allowances, and personal attendance allowances,
their low rates, narrow scope, and outdated structure. It was also about the
requirement of choosing between mobility and personal attendance
allowances even though each was related to a different set of needs.40 The
strike ended with great achievements for the activists, as the Prime Minister
and the Ministry of Finance surrendered to their demands. It was the first
time that a street protest over social welfare issues had succeeded. It yielded
significant changes in mobility and attendance allowances and a rise in
disability insurance payments for the “severely disabled.”41 During the strike,
a new organization was established, the Campaign for Handicapped Persons
in Israel (hereinafter: Campaign for the Handicapped), which perceived the
strike’s achievements as only a first step in a broader effort to improve the
living conditions of disabled people. Indeed, the continuing effort of the
Campaign for the Handicapped produced a second strike.
The 2001 strike lasted 77 days.42 On the agenda was a general reform
in disability insurance that would benefit the majority of disabled people who
live on disability insurance and not just the few who are “severely” disabled.
This time, the goals were few and clear, though still steep : to bring disability
insurance on par with minimum income rates (including an allowance for
people whose benefits were below the minimum income rate), to allow
disabled people who had reached pension age (60 or 65) to receive both
disability insurance and old-age pensions and other disability related

39 Disability insurance allowances were not only insufficient in the first place, but also

had not been updated over more than two years to match the rise in the standard of living, and
therefore suffered continuing deterioration. On the background to the strike, see Einat Fishbein,
The disabled are opening a struggle on their rights: we have nothing to live on?, Ha’aretz, 9/29/1999.
On the disappointment with the ERPWDL I received information in an interview with Simha
Benita.
40 Fishbein, Id.
41 In Struggle – The Bulletin of the Disabled Union, Vol. 1, March 2001, at 8-11.
42 On the strike and its achievements, see In Struggle – The Bulletin of the Disabled Union,

Vol. 3, March 2002.


17 BETWEEN HOPE AND EVIL

benefits,43 to equalize healthcare benefits and services among all disabled


people (bringing them on par with benefits rendered to disabled veterans and
work injured), and to update mobility allowances.
The pubic support for the strike was accompanied by extensive media
coverage. Many disabled people who were not part of the organizing group
heard about the strike through the media and joined the strikers or supported
them from afar. In addition, non-disabled people who championed the
strikers’ cause joined them in their tent, bringing food and other forms of
assistance. Thus, for example, a group of students studying Chinese medicine
came from Tel Aviv to the capital to give free massage treatments to the
strikers, and some of Israel’s leading singers participated in a “live aid”-type
concert for the disabled. The strike also prompted newspaper columnists to
criticize Israel’s unjust social and economic policies, including, for instance,
the government’s preference for funding settlements in the occupied
territories over the needs of citizens located well within Israeli borders.44
After a longer and tougher struggle than the previous one had been,
again the strike ended with achievements. In the agreement that was signed
with the government at the end of the strike, some of the strikers’ demands
were partially accepted. The agreement included a 20% general increase in
disability allowances (instead of the 100% that they demanded), a promise to
grant disability allowances to people whose income was below the minimum
rate, a guarantee that disabled benefits would not be declined upon reaching
pension age, and a commitment to appoint a public committee to study and
offer operative suggestions to improve the disability-related social welfare
policy.45
The achievements of the strikes were remarkable. The strikes were
understood as a spectacle of solidarity both among disabled people as a
community and between disabled people and the public at large; as a
historical triumph of a powerless group in society over the powerful
bureaucracy; as a unique moment in which social welfare became an issue in
every home, and disabled people became visible, assertive, and relevant in
national politics.46 One of the strengths of the struggle was its emotionality,

43 Before then, a disabled person would switch from disability insurance to old-age

pension which was many times lower than the disability allowance, and was denied other
benefits (e.g., mobility and attendance allowances).
44 Anat Gov, The Public’s Right to Know, 12/26/01, Ynet online newspaper (claiming

that “with the money that we have we could have been a state where the disabled are smiling”).
45 In Struggle – The Bulletin of the Disabled Union, Vol. 3, March 2002, at 12-14.
46 Neta Ziv, People with Disabilities – Between Social Rights and Existential Needs, in

ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN ISRAEL 813, (Yoram Rabin and Yuval Shany eds.,
2004); Rimmerman and Herr, supra note 2 (naming their article The Power of the Powerless).
Sagit Mor 18

and its acute relevance to the participants’ daily lives and economic survival.
Yet as we shall see, for the same reason, the strikes were also criticized for
using the politics of mercy and pity.
C.2. The Role of Disability Allowances in Disabled People’s Lives
For the organizers of the campaigns, disability allowances were the most
pressing issue, while civil rights could wait for later stages in the overall
struggle; thus, civil rights were not entirely beyond the scope of this struggle,
but their priority was low. In the 1999 sit-in strike, for instance, disability
rights were included in the initial agenda but were soon abandoned. Top
priority was given to disability allowances due to their fundamental role in
ensuring disabled people’s very existence –their economic security and
physical survival. Thus, Arie Zudkevich said: “Everyone agreed that
allowances were the first priority – first of all: to stay alive.”47 Simha Benita,
one of the campaign organizers was quoted in an interview that announced
the launching of the first strike: “The ground is burning under our feet … we
have nothing to live on, and nobody notices us. Indeed, it is not easy to take
the disabled outside their homes for a demonstration, but this time we are
going to fight and bring hundreds [of people] until we get attention.”48 Momo
Nekave, another prominent activist, was cited as saying: “Our people are
desperate. Our struggle is about the right to life, because in the current
situation many are hardly alive.”49
The formulation of disability allowances as guaranteed by the right to
life resembles a similar attempt in the United States to formulate welfare
benefits as rights. That view was promoted by the welfare rights movement
that flourished for a short while during the 1960s. As early as 1955, A.
Dalefield Smith had developed the approach that viewed welfare benefits as
stemming from the fundamental “right to life,” based on the Fourteenth
Amendment to the American Constitution.50 That argument failed, and the
welfare advocates turned to due process rights as a way of ensuring benefits
for indigent people (using Charles Reich’s theory of the “New Property”).51
The welfare rights movement enjoyed success in courts during the 1960s, and

47 Interview with Arie Zudkevich. Emphasis added.


48 Cited in: Einat Fishbein, Einat Fishbein, The disabled are opening a struggle for their

rights:: We have nothing to live on, Ha’aretz, 9/29/1999.


Cited in: Ruti Sinai, How Do You live on 1,740 NIS a Month?, Ha’aretz, 2/20/2002
49

(emphasis added).
50 A. DELAFIELD SMITH , THE RIGHT TO LIFE (1955).
51 For a chronicle of the struggle, see Edward v. Sparer, The Right to Welfare, in THE

RIGHTS OF AMERICANS 82 (Norman Dorsen ed., 1971). For a chronicle of the movement, see
MARTHA DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT, 1960-1973 (1995).
For Reich’s renowned article, see Charles A. Reich, The New Property, 73 YALE L. J. 768 (1964).
19 BETWEEN HOPE AND EVIL

then its influence declined without leaving much impact on the United States
rights discourse.52
For local activists, the sit-in strikes were a spectacle of hope, solidarity,
and strength. As Yoav Kraim, the spokesperson of the Campaign for the
Handicapped wrote in their bulletin:
After long years of walking in the desert with no pastor, we have
finally reached the gates of the Promised Land. We can now state
that the disabled populace has left behind any last remains of
paternalism and represents itself with dignity and with no
mediators. …
… Our two most important achievements: one – the power of
working together …, and second – the public’s understanding of
the needs of all disabled: the mentally disabled, sensory disabled,
physically disabled, and cognitive disabled.
The public knows today that a disabled person is a human being
too, bearing rights.
We too share the image of God. … Furthermore, the disabled
populace is leaving its “closet” behind today and starting to lift
its head. The shame that society has granted us is disappearing,
and we now march to the light of human dignity. This light will
guide the State of Israel ... to become a society that manages its
economic affairs as well in terms of values and fundamental
needs. In this way, we have provided the entire public with
renewed dignity.53

Organized by disabled people and conducted in the streets, the sit-in strikes
represented a grassroots struggle, in which disabled people forced society to
see them, address their hardships and, consequently deal with its own
responsibility for past injustices. For them, disability allowances indeed
concerned the “here and now;” the immediate and basic issue that shapes
their life conditions; nevertheless, their grand vision was one of rights,
dignity, participation and integration in the labor market.
Gradually the Campaign for the Handicapped formulated its own
demands for rights. After the 2001 sit-in strike, its activists increasingly talked
about allowances as rights, as a mechanism that aims to close the gap between

52 Sparer, id; DAVIS, id.


53 In Struggle – The Bulletin of the Disabled Union, Vol. 3, March 2002, at 15 (emphasis
omitted).
Sagit Mor 20

the living expenses of disabled and nondisabled individuals. The size of the
gap, they argued, depends on the level of services provided by the state.
Moreover, they advocated the acknowledgement of
disability allowances [as] an investment that allows the disabled
person to secure his unique needs, to integrate into the life of the
country and contribute to it. We need a new balance between
disability and wage-earning so that the disabled and the state will
pursue the integration of the disabled as an active and productive
worker on the one hand, and so that the quality of life of the disabled
will not decline.54

In the agreement with the government at the end of the 2001 sit-in
strike, the organizers insisted on a provision that guaranteed the
establishment of a public committee. One of the committee’s major expected
tasks was to discuss ways to encourage and provide incentives for disabled
people to work and earn their income, while still ensuring the existence of
mechanisms that guarantee easy transition to economic independence (e.g.,
eligibility for an allowance if income is below minimum standards). The
Campaign for the Handicapped had indeed insisted on the establishment of
such a committee and participated in its proceedings. The Public Committee
to Review Matters Concerning Disabled People and to Advance their
Inclusion in the Community (also named the Laron Report, after Judge Laron,
the head of the committee) published its report in March 2005.55 Yet the
recommendation of the Laron Report has yet to be implemented.

54 A memorandum submitted to the government by the Campaign of the Handicapped

People in Israel regarding the establishment of a public committee, as part of the agreement
that was reached at the end of the 2001/2002 strike. Dated May 9, 2002 (on file with author).
55 See the full report on: http://users.tapuz.co.il/forums/laron-x.pdf. A
comprehensive analysis of its recommendations is beyond the scope of this project at this point.
The government website reported that: “The Committee decided to concentrate on
recommendations that would lead toward improving the quality of life of people with
disabilities and to their inclusion in society and employment. In this context, the Committee
focused on encouraging employment, which constitutes a basis for improvements in all
areas. The members of the Committee believe that the disabled must be afforded a wider
degree of participation as a solution to their problems and indicate the need for policies based
on consideration and the promotion of autonomy.” As this text already reveals, from a
disability critique perspective, a basic fault of the report is the understanding of employment as
a problem of the disabled person, and not a social disablement. Thus, the report develops
advanced mechanisms to support the entrance of disabled people to the labor market, but
ignores the societal aspects of employment discrimination and other structural problems. A
second issue, which stands at the center of other disabled people’s criticism of the report (who
already organized an anti-Laron Report campaign), is that the levels of disability allowances
had basically remained the same, i.e., at poverty lines. Although, according to the report,
21 BETWEEN HOPE AND EVIL

Ironically, the Campaign for the Handicapped encountered much


criticism regarding its role in the report proceedings. It was argued that its
representatives had deserted the goals and the people they represented, by
participating in the committee.56 The heated debate surrounding the Laron
Report again reinforces the argument regarding the central role that disability
allowance plays in disability politics in Israel. The following are illuminating
statements regarding the major charges of the opponents to the Laron Report:
The Report perpetuates the historical injustice: the link between
allowances and wage income. We argue: it is the right of a disabled
person to work and earn wages with dignity, without losing his
allowance, which is the existing situation among other sectors of the
disabled. Once and for all, this link should be broken, or, alternatively,
all disability allowances and eligibility criteria should be put on equal
grounds.57

The remaining major challenge would be to articulate and to structure these


allowances not as compensation for being disabled but rather as a way for
society to pay for its major contribution to processes of disablement and
exclusion.

people who go to work will not lose their benefits at once, the reform does not improve the
economic situation of people who live on disability insurance. The opponents of the report
admit its importance in some aspects but argue that underlying it is an aspiration to keep the
expenditure on disability allowance low and to create incentives to work that might lead people
to lose their benefits (e.g., the requirement to participate in rehabilitation program as a
condition for receiving benefits). For a fully developed critique of the report, see the following,
written by Kobi Cohen, a leader of the struggle against the report and the spokesperson of
Keren organization (Keren – K’tu’ei Raglayim Nilchamim (Leg Amputees Fight Back), entitled: The
Laron Report – Why it is Important to Stop its Implementation (available at:
http://mate.ios.st/IOS/Users/mate.ios.st/Files/3546613314.pdf).
56 For the content of the opponents’ critique, see Id. This debate among disabled people

concerning the report began in the online forum on Tapuz.co.il, and gradually gained
momentum, leading to a new alliance of disabled people who oppose the report who now have
their own website and who even initiated a new strike of disabled people in October 2005.
See e.g., a letter sent by the Roof Association for the Organized and Unorganized
Handicapped to the Prime Minister, Ariel Sharon, explaining their objections to the report and
complaining for not being represented or involved in the Committee’s proceedings, dated
7/31/2005. (Available at:
http://www.center4all.com/BuildaGate4/portals/disable/imagesP/sub23/237628558.jpg).
57 The Laron Report – Why it is Important to Stop its Implementation, supra note 55, at

9. This latest development in disability activism not only offers a more radical view of disability
allowances, but also questions the disparities among disabled people and expose them to public
discussion.
Sagit Mor 22

D. Disability Allowances as an Evil – A Disability Rights Perspective


The view of disability allowances as “evil” is not explicitly expressed in any
public document or speech of Israeli disability rights advocates. Nevertheless,
as I shall soon demonstrate, its absence from the agenda is telling. The
disability rights formula that has evolved in Israel, has followed the American
example (the Americans with Disabilities Act, or ADA), while inserting
Scandinavian influences and local experience.58 This local rights formula was
consolidated into the Equal Rights for People with Disabilities Bill that was
presented to the Israeli parliament (Knesset) in 1996.59 The initiative to have a
comprehensive disability rights law came earlier from the first disability
rights organization in Israel, Bizchut, which was established in 1992 by a
group of civil rights advocates and parents of children with disabilities,
mainly children with developmental disabilities.60 In the process of drafting
the law, which began in 1994, Bizchut sought to involve many existing
disability organizations and professionals. It was a way to include their
perspectives and experiences into the new law as well as to recruit them to the
new struggle. Several of these organizations indeed became enthusiastic and
eventually formed a coalition with Bizchut to promote the enactment and the
enforcement of the Bill and the law that was eventually enacted.
Following the submission of the Bill, a governmental Public
Committee for a Comprehensive Review of the Legislation Regarding People
with Disabilities was nominated to conduct a thorough investigation
regarding the legal and social conditions of disabled people in Israel. The
Public Committee’s Report was presented to the government and to the
public in July 1997.61 The first part of the Equal Rights for People with

58 Neta Ziv “Disability Law in Israel and the United States – A Comparative

Perspective” 1999 Israel Yearbook on Human rights 171 (1999); Stanley S. Herr, Reforming Disability
Nondiscrimination Laws: A Comparative Perspective, 35 U. MICH. J.L. REFORM 305 (2002) (examining
the effect of the ADA on disability reform in Israel, the United Kingdom and Sweden).
59 Equal Rights for People with Disabilities Bill, 5756-1996, H.H. 628.
60 In a press conference announcing the establishment of Bizchut it was declared: “For

the first time in Israel, an organization has been established to promote the interests and rights
of people with disabilities in the spirit of the values of the Association for Civil Rights in Israel,
and to bring the principles of integration within the community and of anti-discrimination into
practice … “Bizchut” wishes to eradicate the prejudices and paternalism towards populations
with special needs, in order for them to be an integral part of Israeli society, Bizchut ve-lo be-
chesed (as a right rather than as charity).” The opening and concluding paragraphs of the
Announcement establishing Bizchut, at the above press conference, 12/5/93.
61 The Report of the Public Committee for a Comprehensive Review of the Legislation

Regarding People with Disabilities (1997) (hereinafter: the Public Committee Report or the
Report). In the following I shall refer to the report in two ways: I shall refer to the analysis, data,
and recommendations of the report as the Public Committee Report, and I shall address specific
provisions as the ERPWD Bill.
23 BETWEEN HOPE AND EVIL

Disabilities Law was enacted in 1998. It involved an extensive mobilization


campaign and was celebrated by its supporters as a revolutionary event.62
In the discussion below I analyze the disability rights discourse that
evolved in Israel during the 1990s. The analysis will not focus on the
ERPWDL alone, but rather will examine the Law together with the Bill and
the Public Committee’s Report as a series of legal documents that together
encompass a broader picture of the disability rights vision in Israel during
that era.63
D.1. Equal Rights for Disabled People – A Means to Transform
Rights and Welfare
The basic elements of the ERPWDL and the approaches that guided its
drafting reveal a progressive formulation that aspired to transform the
dominant meaning of both welfare and rights. The rights model that the
drafters designed was based on what they identified as two dominant
approaches to progressive disability legislation: non-discrimination and
adequate services.64 The first component referred to the Anglo-American
approach that emphasized non-discrimination tools and relied, especially in
the United States, on the legacy of the civil rights movements. The second
component was a lesson from the Scandinavian approach, which focused on
the state’s duty to provide adequate services, and the complementary
entitlements that individuals have in their relationships with the state to
receive those services.65 The drafters saw this combined model as representing
a better understanding of the nature of disability and of equality for two main
reasons. First, it recognizes that achieving equality and rights is possible only
when individuals have the means and conditions to fulfill and enjoy these

62 Ariela Auphir and Dan Orenstein, Equal Rights for People with Disabilities Law, 1998:
Emancipation at the End of the 20th Century, in MENACHEM GOLDBERG BOOK 42, 87 (Aharon Barak
et al eds., 2002).
63 The ERPWDL eventually included only four parts of the original proposal: general

principles, accessibility in public transportation, employment equality, and the establishment of


Equal Right Commission for disabled people, therefore it cannot be considered as representing
the entire disability rights advocates vision. However, I will refer to the ERPWDL where the
discussion involves specific provisions that were enacted into law.
64 Ziv, supra note 58, particularly at 176-177. Ziv emphasizes the innovativeness that

lies in such a combined approach and argues that it can serve as a model for disability rights
laws. Id., at 201-202. See also The Public Committee Report, supra note 61, at 19; Auphir and
Orenstein, supra note 62, at 56; Herr, supra note 58. The ERPWD Bill included a specific chapter
dedicated to Special Needs (§35-38). A stricter translation of the original concept of adequate
services would be something like “appropriate-response to special needs” (see the ERPWDL §1,
cited supra next to note 19).
65 On the Swedish model of disability, see Ziv, Id., at 194-197; Herr, Id.
Sagit Mor 24

rights,66 and second, it acknowledges the unique relationships between


autonomy and dependency in disabled people’s (and in all persons’) lives.67
The result was a unique mixture of rights and entitlements, of negative
and affirmative provisions, of concrete yet broad claims that disabled people
can make while using the law, as the following examples demonstrate. A
typical provision in the ERPWD Bill started with declaring an abstract right,
followed by a few concrete instructions about the operation of that right, and
concluded with detailing the concrete roles and duties of the state in
providing certain services to ensure that this right is fulfilled. The
Employment Chapter can serve as an illustrative example.68 In addition to
anti-discrimination and reasonable accommodations provisions, the Law also
entails a mechanism of appropriate representation for disabled people in
public and private labor markets. Finally, a fourth element requires the
Minister of Labor to “initiate, develop, and prepare” employment and
rehabilitation programs to encourage the integration of disabled people into
the general labor market.
The ERPWD Bill provided specific instructions regarding almost every
aspect of disabled people’s lives, including accessibility, employment,
education, culture and leisure, health, housing, and more, which together
solidified its vision of equality and dignity. The Bill was especially innovative
in the model of rights that it created and particularly the place of social rights
within that model.69 The drafters of the ERPWD Bill were very creative,
detailed, and concrete in redefining the relationships between specific social
welfare issues and rights. Thus, the Bill included provisions regarding access
to healthcare; arrangements supporting housing in the community with
personal assistance allowances; an education system capable of addressing
each child’s special needs; rehabilitation and vocational training programs as
part of the right to employment, as well as additional services that support
participation in the labor market; and a separate Special Needs section that
was understood as allowing and maximizing the utilization of rights. The
latter included three provisions: benefits and discounts in the acquisition of
special equipment necessitated by a person’s impairment; assistance in
making decisions concerning one’s own life, including entitlement to

66 The Public Committee Report, supra note 61, at 3.


67 Ziv, supra note 58, at 201.
68The Employment Chapter was fully included in the 1998 law, see the ERPWDL § 8-
18. On the ERPWD Bill, see the Public Committee Report, supra note 61, at 30-41 (ERPWD Bill
§10-13B). For a review and analysis of that section, see Auphir and Orenstein, supra note 62, at
63-72.
69 For a detailed review of the status of disabled people’s social rights, see Ziv, Between
Social Rights and Existential Needs, supra note 46.
25 BETWEEN HOPE AND EVIL

professional aid and consultation for that purpose (as viable alternatives to
restrictive guardianship arrangements); and an entitlement to mobility
allowance.70 Therefore, it is particularly revealing that missing from the Bill’s
content was a reformulation of disability insurance or, more generally, of
disability allowances. The significance of this missing part was profound, as it
overlooked a pressing need of disabled persons and an important arena
where disability was constituted. But most importantly, the inevitable result
was that the issues included were legitimized while the excluded ones were
not, or were even de-legitimized.
D.2. The Equal Rights for People with Disabilities Law – Avoiding
Disability Allowances
A close reading of the ERPWD Bill and the Public Committee Report reveals
that the local disability rights formula avoided the issue of social insurance,
both as a measure of economic security and as a source of human dignity for
disabled people. In fact, this is one of the very rare issues with legal
implications that was totally abandoned in the process of formulating
disability rights.71
It appears that while in general both the Bill and the Report espouse
in-kind benefits (i.e., providing actual services), they also introduce an
implicit distinction between two types of cash benefits (i.e., direct payments):
those intended to cover specific, impairment-related needs, and those that
concern general living expenses. The first type relies on a link between the
readily apparent disability and the particular needs it generates. This category
was incorporated into the rights formula and was in fact celebrated as part of
its “adequate services” component. Disability rights advocates justified these
benefits as a means to realize rights that were otherwise useless for disabled
people and would therefore have remained abstract. The Housing in the
Community Chapter, for instance, included two such provisions. One was the
newly designed entitlement to personal assistance (that was to replace
attendance allowance), which intended to guarantee independence and
dignified living for disabled people, both at home and outside.72 A second
provision concerned state funded financial assistance for housing, which

70 Clearly each one of these provisions can be easily linked to a specific right: special

equipment to healthcare and fostering autonomy, mobility to freedom of movement, and


decision-making to liberty, human dignity, and privacy, or even to the particular right to make
decisions that the Bill created and that were already adopted into the ERPWDL.
71 Another one is sexuality and family life, a growing concern particularly among

parents of people with developmental disabilities.


72 The Public Committee Report, supra note 61, at 59-65.
Sagit Mor 26

aimed to provide those who could not otherwise afford housing possibilities
other than institutional care.73
The second type of cash benefit is the focus of this study: it concerns
basic disability allowances for general living expenses, as provided by major
disability welfare laws (e.g., the Invalids Law benefits to disabled veterans,
the Work Injury Program, and the general disability insurance program). This
basic allowance is determined based on one’s level of disability, but is not
linked to any particular need. The structure, definitions, and levels of this
allowance are different for each program; however, in none of the programs is
there any detailed reference to the expenses the disability allowance is meant
to cover. It is clear that they are meant to cover daily expenses, some of which
might be related to the disability, but mostly it refers to basic living expenses.
This is particularly evident in the case of the general disability allowance
available to unemployed disabled people, which provides only very meager
benefits.
The distinction between the two types of cash benefits reflects society’s
willingness to acknowledge and cover disability-related costs (together with
in-kind benefits) in contrast to its decision to relegate most other expenses to
the personal realm of individual responsibility. The central question then
becomes what are the extra expenses that would make it possible for disabled people
to function in society, and whose responsibility is it to bear these added costs?
D.3. Explaining the Absence of Disability Allowances
Clearly, then, disability allowances were excluded from the ERPWD Bill.
None of the Bill’s versions says anything about a right to economic security, to
social insurance, or to a minimum standard of living, to name a few possible
options.74 The question is why. It is clear that cash benefits were not rejected
altogether – only those that were not linked to a specific disability-related
need were rejected. The inevitable conclusion is that cash benefits were not
meant to cover needs which are not disability-related, such as food, clothing,
furniture, or cleaning supplies – the kind of universal needs that all people
share and that advocates for poor people demand. This realization suggests
that here the disability/poverty dyad comes into play. It is the claim of the
current study that the implicit distinction between disability-related needs

73 ERPWDL §25(b); The Public Committee Report, Id., at 59-65 and 69 (finding that

institutional care is the norm under current state practice).


74 One such option was available in the International Covenant on Economic, Social

and Cultural Rights. The Covenant’s Article 9 provides: “The States Parties to the present
Covenant recognize the right of everyone to social security, including social insurance.” International
Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp.
(No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 (emphasis
added).
27 BETWEEN HOPE AND EVIL

and poverty-related needs did not allow a formulation of adequate disability


allowances. The mutual correlation between disability and poverty, although
publicly recognized and acknowledged, was ignored.
One extreme explanation is that the Bill was essentially seeking to
abolish disability insurance; another, less provocative option is that the Bill
established a rigid separation between social security and disability rights as
two distinct spheres.75 An illuminating provision in this context is paragraph
13(a)(6) to the Bill, which establishes a mechanism for supplementing disabled
people’s income when it is lower than the acceptable minimum. This is a
hybrid provision in which a working disabled person receives general cash
benefits that cover no particular need, but nevertheless are considered part of
a rights-based employment arrangement. The Employment Chapter in the
ERPWDL eventually did not include this provision, but in 2002 regulations
were issued under the Minimum Wage Law, 1987,76 which enable an
employer “to pay people with disabilities a lower wage if their level of output
is significantly lower than that of employees in a similar position, while at the
same time protecting people with disabilities from exploitation.”77
Surprisingly, these regulations passed without the supplemental income
component, and yet still enjoyed the support of major disability rights
activists. This provision, I suggest, represents the vision of disability rights
advocates in which all disabled people work, and in extreme cases their wages
are accommodated. In this manner, it acknowledges, or maybe even
embraces, the persistence of the existing economic order and its occupation
with productivity in terms of efficiency, which are extended to the person
who works yet cannot earn sufficient income.
The primary explanation for this neglect, as expressed by some
disability advocates, is based on the claim that this struggle is not to be
handled by means of ordinary legal methods of litigation and legislation;
instead, it should emanate from the bottom-up, and as such it should be
initiated in the appropriate arena, that is, in the streets.78 While this argument

75 Absence of attention to social welfare was present in additional sections of the Bill.
Thus, the provision concerning accommodations of legal proceedings did not address
proceedings before administrative tribunals, and the accessibility part (§14-§24) paid no special
attention to access to social welfare services (although it did specify a right regarding access to
healthcare).
76 Minimum Wage Law, 5747-1987, S.H. 68.
Minimum Wage (Accommodated Wage for a Worker with Disability with Reduced
77

Working Ability) Regulations, 5762-2002, K.T. 460.


Quotation taken from Bizchut’s Ten Year Bulletin, at 30. Available online:
http://www.bizchut.org.il/eng/upload/publications/Tenyearenglishfinal.pdf
78This was the kind of reasoning which the lawyers who founded Bizchut were
expressing (interviews with Neta Ziv and Ariela Auphir). In an article that Ziv published
Sagit Mor 28

presents a sufficient explanation from a tactical perspective, it avoids the


central issue of the disability-poverty dyad. If the issue were a matter of
strategy and not of essence, there would have been a clear understanding that
disability insurance constituted an integral part of disability rights. Then the
central struggle would have focused on prioritizing living allowances within
the disability rights agenda. The absence of such recognition indicates that a
more critical account is needed.
It seems that the simplest answer to the question of why disability
allowances were abandoned in the rights formula is that they were considered
part of the old world of charity that should be abolished, the epitome of
anachronistic social welfare policy. If considered a mere expression of
goodwill, this allowance reinforces the paternalistic approach. It implies that
since disability is a static condition, disabled people are destined to live on the
margins of society. Given that they cannot hope to be equal participants in –
not to mention contributors to - social, cultural, and political life, they deserve
hand-outs, to keep them alive, albeit at the edge of society. This view conflicts
with that advanced by disability rights activists, who believe in transforming
disabled people into a flourishing community of dignified citizens.79
Moreover, social insurance, so it seems, was rejected because, like private
charity, it was perceived as mere “cosmetics,” a superficial social remedy that
does not impact the social structure, but rather legitimizes it, and
consequently hinders the revolution that rights were about to bring.80 Within
the disability rights formula that evolved, disability insurance, particularly in
the form of living allowances, was perceived as a wrong that could be
tolerated only as a transitional measure, until the transformation would be
complete. According to this view, in due time, disability insurance would
become irrelevant and unnecessary.
Yet the analysis presented here suggests that the most fundamental
explanation for the avoidance of disability insurance was the attempt to
distinguish between poverty and disability. Accordingly, the particular need-
tailored benefits were acceptable , since they were clearly disability-related,
linked to costs and services that disabled people require regardless of their

recently, she stresses? that argument more specifically, even though she also acknowledges that
“the issue of allowances is a direct reflection of the idea of ‘adequate services.’” Ziv, Social
Rights and Existential Needs, supra note 46, at 844-845.
79 The rights view of disability allowances was voiced most clearly in the Fundamental
Principles document of the Union of the Physically Impaired Against Segregation (1976), cited in
MICHAEL J. OLIVER, UNDERSTANDING DISABILITY: FROM THEORY TO PRACTICE 21-28 (1996). See also
Anita Silvers, Formal Justice in ANITA SILVERS, DAVID WASSERMAN, AND MARY B. MAHOWALD,
DISABILITY, DIFFERENCE, DISCRIMINATION: PERSPECTIVES ON JUSTICE BIOETHICS AND PUBLIC POLICY
(1998).
80 The Fundamental Principles document, in OLIVER, Id.
29 BETWEEN HOPE AND EVIL

actual economic condition. In the eyes of rights advocates, the perceived


problem with disability insurance, particularly in its current form as a living
allowance, is that it establishes a link between disability and poverty. This link
was not welcomed by rights advocates, because it had no place in the world
they envisioned for disabled people. In that world, poverty among the
disabled community would not stem from the condition of disability, but
from other reasons. Based on this analysis, the differentiation between
poverty and disability was not strategic but rather rooted in the very
assumptions of the discourse, according to which poverty in itself is not a
disability rights issue.
A related conclusion might be that the absence of social insurance and
economic security from the ERPWD Bill exposed the fact that neo-liberal
ideas, among them concepts of productivity, still play a prominent role in the
formulation of disability policies, even in progressive circles. Hence, while all
of the services enumerated and promoted in the Bill were designed to enable
disabled persons to lead independent lives by providing better conditions -
primarily through full employment - for their productivity, disability
insurance was perceived (albeit indirectly) as relinquishing their hope of
becoming productive citizens. This implicit equation between dignity and
productivity suggests that the disability rights framework has not been able to
challenge the predominant meaning of productivity and independence, but
rather has adopted it.
Considering the absence of social insurance from the ERPWD Bill in
terms of the disability/poverty dyad raises the question of whether the
disability rights discourse that developed in Israel is still open to a classic
critique of rights. Although sophisticated and socially oriented, this discourse
nevertheless represents a liberal-bourgeoisie concept that serves the powerful
in society81 and perpetuates the marginality of disabled people. Appropriately
relevant and useful here is Nancy Fraser’s critique of the politics of
recognition as overshadowing the politics of redistribution that preceded it.
Fraser argues that it is typical of recognition-focused movements to ignore the

81 Morton J. Horwitz, Rights, 23 HARV. C.R-C.L L. REV. 393 (1988). Note that despite my

critique, I do not advocate the abandoning of rights. Neither do I endorse them as the ultimate
device to promote social change and to dismantle power structures. I examine rights as the
particular paradigm and a concrete resource that was developed in a certain era and ask what it
entailed and what it missed or neglected. Rights in my view are a process and not an outcome,
as I shall explain later, and the critique of rights is an important, yet not exclusive, aspect of my
understanding of how they work. On the constitutive approach to rights in sociolegal studies,
see e.g. MICHAEL W. MCCANN, RIGHTS AT WORK – PAY EQUITY REFORM AND THE POLITICS OF
POLITICAL MOBILIZATION (1994); and JOHN BRIGHAM, THE CONSTITUTION OF INTERESTS (1996).
Sagit Mor 30

redistributive aspects of their plight, thus eventually cooperating with the


neo-liberal turn of the 1970s.82
D.4. Reactions to the 1999 and 2001 Protests
The 1999 and 2001 campaigns, in which grassroots voices of disability activists
presented disability insurance as the most pressing matter in disabled
people’s lives, spurred conflicted responses among disability rights advocates.
At issue was the implied message regarding the place of disabled people in
society. In the eyes of disability rights advocates, a struggle over disability
allowances was anachronistic and jeopardized the disability rights projects. .
Thus, while they did provide legal counseling services to the protesters
behind the scenes, they did not join the sit-in strike in full force – they did not
sit in the tent, did not lobby Knesset members and government officials, and
did not take any overtly active role. The protocols of Bizchut from that time
indeed reveal inner conflicts, and interviews conducted with activists likewise
show that heated debates were taking place with regard to whether Bizchut
and the Coalition to Promote the ERPWDL should be more actively
involved.83 Indeed, Arie Zudkevich, the leader of the sit-in strikes, did present
disability as a condition associated with misfortune and suffering, when he
addressed the candidates in the race for the office of Prime Minister, in 1999:
We are talking about the disabled who were hit by misfortune
twice, once for being disabled, and second for being forced to
live on the shameful and shaming budgets of all Israeli
governments ever since. …
These people cannot fight to improve their living conditions;
therefore, we have founded our organization … and have
promised to serve as their mouthpiece and to fight with our
ultimate powers for us all.
… You who have met our people and know their suffering, you
who have seen the pain in our eyes, should acknowledge the
terrible injustice we have suffered.
We hope to bring new hope… so that we will no longer watch
the shameful spectacles of the disabled drifting through
(mitgolelim) the freezing streets of Jerusalem.84

82 See FRASER, supra note 31; FRASER AND HONNETH, supra note 31.
83The Protocols are on file with the author. Based on interviews with Rivka Sneh,
Gideon Drori, Simcha Benita, Achiya Kamara, Ariela Auphir, Sylvia Tessler Lozovick, and Neta
Ziv.
84 In Struggle – The Bulletin of the Disabled Union, Vol. 1 and , March 2001. Note the
difference between this text and the one by Yoav Kraim that is cited next to note 53. The
31 BETWEEN HOPE AND EVIL

Conflicted views about the sit-in strikes were voiced also in the public
media. It was a “victory of tears,” observed a journalist known for her
progressive agenda, after the first sit-in strike.85 It was a “performance of
misery,” a participant in an online forum of disabled people noted after the
second sit-in strike,86 a “one-dimensional representation [of disabled people]
as miserable ... as a minority that lives on the margins, a social burden,” in the
words of the late Baruch Kimmerling, an acclaimed sociology professor who
was a wheelchair user.87 “This attitude,” Kimmerling warned, “brings us
closer to societies that have [promoted] physical extinction of unworthy
non-contributing elements in society.” In this view, the image of disabled
people in these strikes was not of equal citizens fighting for their rights, but of
a marginal group begging for compassion.88 “It was a victory of misery,” a
history professor explained, because “you were forced to undress yourself, to
expose your impairments, to recruit some journalists that would bring them to
light, and only in this way could you win. Is this the society we wanted? This
is a return to [Diaspora's – S.M.] town, to charity collections (kupat tzdaka)
…”89 From this perspective, the exposure of the participants’ impairments in
public was communicated as a call for mercy and not an act of dignity.
Like those journalists and commentators, rights activists viewed the
sit-in strikes with mixed responses, as a simultaneous show of solidarity and
misery. The sit-in strikes, then, represented a dual movement, of continuity
and departure, in relation to disability rights activism; continuity, on the one
hand, because they manifested the growing visibility and assertiveness of
disabled people; and departure, on the other hand, because they seemed to

differences between the texts of Kraim and Zudkevich deserve a more concrete analysis as they
represent two generations within the movement (Zudkevich the older and Kraim the younger)
and two phases in the struggle (Zudkevich at the end of the 1999 strike, Kraim at the end of the
2001 strike. Still, I believe, they demonstrate the tensions inside that struggle and in the
messages that it communicated outside.
85 Einat Fishbein, The Victory of Tears, Ha’aretz, 11/10/1999. The tears refer to the

turning point in the first strike when the mother of a disabled child started crying and Knesset
members and reporters were carried away and cried with her.
86 Rita, Ynet communities, 6/13/2002.
87 Baruch Kimmerling, The Disabled of the Media, Ha’aretz, 8/11/1999.
88 A survey by Rimmerman and Herr of media representation of the 1999 strike

concluded that “it is not surprising that the participants of the strike were more often described
in the Israeli press as objects of pity rather than activists struggling for their rights.”
Rimmerman and Herr, supra note 2, at 15. See also Ziv, Social Rights and Existential Needs, supra
note 46, at 843-844.
89 Daniel Gutwein, cited in Fishbein, The Victory of Tears, supra note 85.
Sagit Mor 32

many people as a step backwards, to reliance on charity and pity. More


fundamentally, after having excluded disability allowances from the rights
agenda, a struggle over disability allowances was perceived not only as a
regression in terms of disability rights, but perhaps even as a direct challenge
to the movement’s basic assumptions.
A very different view has been voiced by Yuval Elbashan, the then
legal counsel to Yedid, a social justice organization, who found the tears both
subversive and rebellious, and therefore consistent with the struggle as a
whole. According to Elbashan, “there is nothing more legitimate … [than]
taking the game to where you have the advantage.” While normally the game
is ruled by inaccessible economics, he explained, this time disabled people
themselves have set the rules of the game – the rule of tears.90
This study contends that the conflict over the role of social insurance
benefits did more than trigger a disagreement about the goals of the disability
movement; it also tested its limits and its degree of inclusiveness. Given that
the disability rights movement chose to ignore the issue of social insurance,
the recipients of disability insurance felt alienated form and misrepresented
by the rights activists. Thus, although the focus on disability rights
contributed to processes of identity construction, group formation, and
movement-building among disabled people, it nevertheless was perceived as
insufficient by some of its major prospective beneficiaries. The improved
status and the political power that the disability rights movement promised
its constituents constituted a positive but incomplete framework. Its efforts to
translate disabled people’s experiences and needs into legal categories fell
short of addressing disabled people’s most basic need: a dignified standard of
living and economic security.
For poor disabled people, the distinction between disability and
poverty was nonexistent, because their daily personal experiences had already
taught them the many links between the two, and the extent to which
productivity played a role in shaping the relationships between them. Yet the
centrality of disability insurance in many disabled people’s lives and the
significant contribution of living allowances as a means of securing their
economic survival were not acknowledged in the disability rights scheme.
These concerns were put aside, not because of a need to prioritize the
struggle’s goals; but rather because they were perceived as contradicting its
goals. The disability rights formula, which could tolerate dependencies and
special needs of various kinds, could not tolerate the perceived implications of
demanding living allowances as part of disability insurance. Similarly, the

90 Yuval Elbashan, cited in Fishbein, The Victory of Tears, Id.


33 BETWEEN HOPE AND EVIL

rights movement was unable to deliver a vision in which disability insurance


would play an affirmative role in disabled people’s lives.

E. Between Hope and Evil: Rights and the Persistence of Poverty


To summarize, linking disability and poverty runs the risk of perpetuating the
stigma that equates disability with inferiority, lack of productivity,
worthlessness, and passivity, while, as demonstrated here, attempts to
separate between disability and poverty have ignored the fact that in many
ways poverty and disability are constitutive of each other.
In encounters with rights advocates, social welfare activists have
claimed that rights are a utopian ideal and that current pressing issues should
not be ignored in the name of a future revolution, even an attractive one.91 As
Yoav Kraim has said: “Our approach to rights is evolutionary not
revolutionary.”92 His critique of Bizchut is that “Bizchut is guided by
ideology.”
We have no problems with [the ideology of rights] but there is a great
distance between theory and reality, and life requires compromises so
that people’s happiness will not be sacrificed for that ideology … Our
vision about allowances is the same … but in the meantime nobody
should starve.”

He concluded by saying “Bizchut is not ready to talk about needs, about the
‘here and now.’”93
Similarly, the purpose of this paper is to work within the gap between
hope and evil. While it is understood that this approach may not immediately
resolve the tension between the two options, it could –nevertheless-- facilitate
a shift in perspectives that would ultimately lead to a resolution.
Acknowledging the tension is the first step in thinking critically about
disability allowances; this means acknowledging their unavoidable yet
undesirable character. In other words, the necessity for disability allowances
should be recognized, while at the same time striving to make them
unnecessary, unneeded, and even redundant. This tension is familiar in other
realms of antidiscrimination law, as well. Affirmative action policies, for
example, attempt to undo social wrongs while facing the risk of reinforcing
that very same wrong. For that very reason, at their core, affirmative action

91 Interview with Yoav Kraim; Yoav Kraim, talk in a panel on the disability protests at

Tel Aviv University (script of panel on file with author).


92 Interview with Yoav Kraim.
93 Interview with Yoav Kraim.
Sagit Mor 34

policies are understood as temporary measures.94 Indeed, this study will


consider the possibility of viewing disability allowances as a form of
affirmative action that compensates disabled people for the added costs they
bear in a society that is mostly inaccessible and, as of yet, unwilling to become
fully accessible and accommodating.
One central reason for acknowledging the necessity of disability
allowances is undeniably rooted in the life experiences of disabled people.
Currently, there are a disproportionately large number of disabled people
who live in poverty, making economic survival the most pressing issue in
their lives. As the 1999 and 2001 sit-in strikes, as well as the anti-Laron Report
campaign, have so powerfully shown, for disabled people in Israel, disability
allowances are about the here-and-now, while disability rights that attempt to
restructure society are perceived as a long-term goal, if not a utopian ideal.
Listening to disabled people’s voices is an important, corrective methodology.
It deviates from the historically traditional approach, in which disabled
people were treated paternalistically: they were persistently told what was
right for them and thus were excluded from decision-making processes that
concerned their lives and well being. If the issue of disability allowances
occupies the most vocal arena of disability activism in Israel today, then this is
an issue that must be addressed and considered in critical terms.95
The demand for dignified disability allowances cannot be dismissed as
irrelevant to the struggle of disability rights, or as a matter of “false
consciousness;” nor should it be viewed as a naïve and misguided belief in the
power of allowances. A useful concept here would be “double
consciousness,” as developed by critical race theorists, in reply to the critique
of rights, which was raised by critical legal studies. Double consciousness
means that the demand for rights made by disadvantaged groups is more
than a mere fascination with rights and an inability to comprehend their
limited and sometimes oppressive power. Thus, Mari Matsuda, for instance,
has argued that oppressed groups demand rights, not because they are
captivated by the myth of rights. Rather, minority groups, such as African- or
Asian-Americans, consider rights a vehicle for hope, while they nevertheless
acknowledge that in the current reality, rights might mean very little.96 The

94 MARTHA MINOW, MAKING ALL THE DIFFERENCE 47, 385-387 (1990). For a review of

United States history of affirmative action policies and the debates that surrounded them, see
CHARLES R. LAWRENCE III AND MARI J. MATSUDA, WE WON'T GO BACK: MAKING THE CASE FOR
AFFIRMATIVE ACTION (1997).
95 Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV.

C.R. - C. L. L. REV. 329 (1987)


Matsuda, id. See also Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies
96

Have What Minorities Want?, 22 HARV C.R.-C.L. L. REV. 301 (1987); Patricia J. Williams,
35 BETWEEN HOPE AND EVIL

same can be said about disabled people’s demands for granting disability
allowances as a matter of right. This needn’t suggest that disability allowances
are a quick and easy repair for disabled people’s destitution, since their
everyday experiences leave no doubt that the road to equality is a long one. In
this view, formulating disability allowances as a matter of rights could indeed
be an act of hope, which rather than representing a naïve approach is – In
effect – a call for struggle.97 Nevertheless, the issue of disability allowances
cannot be embraced unequivocally solely because disabled people demand it.
Critical listening means that “voices from the bottom” are taken into account
but examined and judged, in light of other principles and of relevant
historical, political, and socioeconomic context.
The current disability rights discourse is complicated by the dual
plight of disabled people: disability and poverty. Consequently, it faces two
main challenges. The first challenge, which is also more vocally advocated by
disability activists, concerns disabled people who do not yet participate in the
labor force for various economic, social, and political reasons. The challenge,
in this case, focuses on addressing their status during the transitional period,
until disability rights become a reality. The second challenge concerns the
group of disabled people who will never be able to work, a definition (and
assumption) that, as explained below, undermines the assumptions that are
fundamental to disability rights claims.
Presently, the first challenge focuses on resolving the conflict between
a shortsighted view, which focuses on the present and the immediate and
foreseeable future, and the long-term view, which seeks a better future.
Instead, as the current study suggests, the focus should shift to the measures
that should be taken in the interim time period. Thus, the question that arises
is “who should pay the price for society’s ableist power structure and its
consequences until ableism is dismantled?” Clearly, excluding disability
insurance from the discussion implies that society is not required to bear the
full cost for its past and ongoing ableist norms and practices. It also means
that until society is fully transformed, disabled people will remain poor.
However, as the campaigns and strikes of recent years have demonstrated,
disabled people are no longer willing to bear a burden that belongs to society
as a whole.
Furthermore, focusing on the interim period poses a greater challenge
to rights activists, as it calls for the realization that society’s transformation
will be a long and drawn out process, which might never be fully completed.

Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401
(1987).
97 See text to note 101 which discusses the view of rights as process.
Sagit Mor 36

Therefore, the need to rely on disability allowances for survival might persist
for a much longer time than disability rights advocates are willing to consider,
much less admit. The argument that disability rights are indeed a utopian
ideal that will never reach full realization is not so radical in light of the
history of rights struggles.98 That history shows that even heralded rights
victories such as Brown v. Board of Education99 or Roe v. Wade100 are part of long
processes that had ample failures and defeats, and that rights do not make
poverty go away. Yet, contending with poverty during an interim period
poses a fundamental problem for disability rights advocates; namely, given
that their goal is to eradicate poverty from disabled people’s lives, any
measure that acknowledges the persistence of poverty casts doubt on the
efficacy of their approach. It suggests that the goal of creating a world with no
barriers for disabled people is, perhaps, unattainable, and more broadly, it
symbolizes the futility of rights.
Approaching the issue of disability allowances in terms of hope vs.
evil, an unavoidable yet undesirable necessity, requires a different view of
rights (and similarly of law) – as a process rather than an outcome, a resource
rather than an objective, a terrain of ongoing struggle rather than a promise
for stability. Rights in this view belong to the contradictory and conflicted
dynamics of legal and social relations as opposed to abstract theoretical
inquiries. Finally, in this view, rights are constantly produced and reproduced
rather than given.101 Interestingly, disability rights advocates were willing to
acknowledge that in some aspects, the difficulty with disability allowances
and their status as a temporary measure was characteristic of the entire
initiative of legislation for the equality of disabled people. Thus, Auphir and
Orenstein, two of the most influential figures in the legislation process of the
ERPWDL, concluded their article with the following point:
Indeed a paradox. On the one hand, by enacting the ERPWDL a new
age has begun in the annals of the struggle for equality and social

98 And as the history of social welfare teaches us, as well.


99 Brown v. Board of Education, 347 U.S. 483 (1954).
100 Roe v. Wade, 410 U.S. 113 (1973).
101 See SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS
AMONG WORKING-CLASS AMERICANS 145 (1990) (based on her field work on rights, Merry found
that “rights come to be opportunities for action, not guarantees of protection”). For similar
approaches to rights. See also MICHAEL W. MCCANN, RIGHTS AT WORK – PAY EQUITY REFORM AND
THE POLITICS OF POLITICAL MOBILIZATION (1994); JOHN BRIGHAM, THE CONSTITUTION OF INTERESTS
(1996); HELENA SILVERSTEIN, UNLEASHING RIGHTS – LAW, MEANING, AND THE ANIMAL RIGHTS
MOVEMENT (1996).
37 BETWEEN HOPE AND EVIL

justice in Israel. On the other hand, Israeli society’s greatest


achievement will be the day that it will become obsolete.102

The second challenge to the effort to establish rights for the disabled
concerns the group of disabled people who will never be able to work. This
raises extremely delicate and complicated issues, because it questions the very
project proposed by disability rights activists. Their aim is to narrow the
boundaries of that group, by claiming that many disabled people are
currently unproductive because it is society – rather than their disability – that
limits them. Once society mends its wrongs, a large portion of this
unproductive group can in fact become part of the labor market. However, it
seems reasonable to acknowledge that there is a group of people, particularly
those with very severe developmental disabilities, who cannot perform any
form of wage earning labor. While this is a marginal group, focusing on its
needs assists in urging the question: what about those who must rely entirely
on public support for food, clothes, and furniture, not to mention leisure
activities, such as a vacation or a movie? Therefore, to reject a general
disability allowance, rights advocates must assume the existence of other
types of dignified living allowances, on which severely disabled people can
depend. At this juncture, strategic alliances with other disadvantaged groups
become pertinent, thus leading disability rights advocates to recognize the
role that “mere poverty” still plays in their vision. The inevitable conclusion is
therefore that the scheme of disability rights must depend on a strong social
insurance mechanism that is either particular to disabled people or universal
to all poor people. This last issue is at the heart of the next and last section of
this paper.

F. Towards Reframing Disability Allowances


In order to re-conceptualize disability allowances as a matter of rights, it is
necessary to consider what they intend to cover. This chapter presents three
possible models of general disability allowances. The traditional way to
understand general disability allowances is as a sub-type of the old form of
social welfare living allowances, a minimal safety net that intends to cover
basic needs such as food, shelter, and clothing. Another, more critical way of
understanding disability allowances, which is presented here, is as a new form
of benefit that is designed to cover unspecified disability-related costs that stem
from society’s continuing exclusionary institutions and practices. The third
model integrates the first two by incorporating both basic needs and additional
extra costs.

102 Auphir and Orenstein, supra note , at 87.


Sagit Mor 38

The understanding of disability allowances as mere living allowances


carries the risk of perpetuating the marginality of disabled people and
legitimizing the ableist power structure. Not unlike the current model of
disability insurance, it is practically destined to have “need” as its guiding
allocative principle, and thus to perpetuate disabled people’s poverty and
inferiority.103 Even in a more generous system, this structure is most likely to
reproduce the power relations to which disabled people are currently
subjected, since it still manifests a view of poverty as rooted in the individual,
ignoring society’s role in generating indigence and disablement. The Israeli
Invalids Law for disabled veterans is a good example in this context. The
Invalids Law is indeed generous, yet even as it acknowledges the direct and
explicit role of society in disabling the soldiers, by sending them to military
service, its underlying compensation principle overlooks society’s ongoing
role as an ableist structure, manifested in its inaccessibility to the disabled,
and the socio-cultural understanding that equates disability with inferiority.104
Another pitfall of this model is that it is highly unlikely to change the
hierarchy of benefits among disabled people.
This study proposes a very different understanding of disability
allowances from that described above. It contends that, first and foremost, the
justification for disability allowances must acknowledge their necessity;
second, it must explain their role in a way that differentiates disability
allowances from other allowances; and third, it must not perpetuate that
marginalization of disabled people. The approach suggested here is that
disability allowances be viewed as society’s obligation to pay for its role as an
ableist structure, a payment that must continue until the last of these social
barriers disappears. Accordingly, the extra costs of disability are a matter of
social responsibility and not the individual’s burden.105
A somewhat similar rationale was developed by the Israeli group
Campaign for the Handicapped, which, as mentioned earlier, promoted a
view of allowances as rights that aim to bridge the gap between the cost of
living of a disabled person and those of a nondisabled person. To recap, the
Campaign for the Handicapped memorandum argued that “disability
allowances are an investment that allows the disabled to secure [their] unique needs,
to integrate into the country’s life and contribute to it.”106 This concept was

103 Silvers, supra note 79, at 13.


104 Mor, supra note 6.
105 For a most recent survey of the extra costs of disability, see Zaidi & Burchardt, supra
note 9.
A memorandum submitted to the Israeli government by the Campaign of the
106

Handicapped People in Israel regarding the establishment of a public committee as part of the
39 BETWEEN HOPE AND EVIL

also developed with great elaboration by the Disability Income Group (DIG),
a British organization of disabled people that, since its establishment in 1966,
has been campaigning for the acknowledgement of the extra costs that
disabled people accrue in their daily lives.107
Both the Campaign for the Handicapped and DIG have indeed
asserted that the gap between the cost of living of a disabled and a
nondisabled person (and therefore the level of allowance) is dynamic, and
depends on the level of services provided by the state; both have also viewed
the state as responsible for providing appropriate care and treatment for every
person. However, the situation demands a further elaboration of the role of
the state in creating the current social, cultural, and political barriers, and a
detailed explanation of the ways in which forms of discrimination and
exclusion continue to contribute to this gap.108 The critique offered by the
current study calls for a reformulation of disability allowances as society’s
debt to disabled people, for its failure to supply full access, equal rights and
opportunities, and economic security. A new justification for disability
allowances would therefore include two modular layers: first,
acknowledgement (and in fact exposure) of the social, dynamic, and
interactive nature of disability; and second, the shifting of the costs of
disability to society, which is accountable for denying services and for not
eliminating all forms of discrimination and exclusion of disabled people.
A possible next step would be to demand that any disabled person,
whether working or not, rich or poor, would be entitled to disability
allowances, because such allowance is not intended to be a substitute for
wages but rather to cover additional costs imposed upon disabled people, in
comparison to other non-disabled people, working as well as non-working.
Such a scheme has recently been adopted in England. Moreover, once the
ableistic rationale that underlies disability benefit programs is exposed, no
disability program can escape the consequences. Thus, in contrast to the
current situation in Israel, whereby veterans receive much more substantial
benefits than other disabled people, based on this new logic, disabled veterans
might receive lower levels of disability allowances than other disabled
persons, because they enjoy services that are more comprehensive,
progressive, and generous. However, under the new formulation, the

agreement that at the end of the 2001/2002 strike. Dated May 9, 2002 (emphasis added) (on file
with author).
107 For policy papers developed by DIG, see http://www.leeds.ac.uk/disability-

studies/archiveuk/disablement%20income%20group/dig.html. On their role in the history of


the British disability movement, see OLIVER, supra note 79, at Chapter 2.
108 That was UPIAS criticism towards DIG and the main reason for the split among the
groups. See OLIVER, supra note 79, at Chapter 2.
Sagit Mor 40

allowances would be allocated to compensate, not for the inferiority that is


associated with disability, but rather for society’s role in allowing the
persistent social, cultural, and political disablements that transform disabled
people into inferior citizens. This is therefore a universal model for disability
benefits, based on a social construction model of disability, that takes the
consequences of ableism seriously, and that connects all disabled people and
all disability benefit programs under one umbrella.
Following the view of disability allowances as mere living allowances,
and that which considers them society’s debt, the third and final model of
disability allowances covers both basic needs and nonspecific disability-
related costs. Such a formulation is more comprehensive than the second
model, as it addresses also the needs of disabled people who cannot work at
all. It expresses an understanding that even in a world of complete, adequate,
and dignified services, and of no discrimination, marginalization, isolation, or
any other form of oppression, there would be a group – albeit a small one – of
disabled people without the means to cover daily living expenses.
It is at this point that the issue of group consciousness and inter-group
relations reappears and raises significant questions concerning the relations
between disability allowances and general living allowances for people who
live in poverty. If disability and poverty are interrelated, then it would be
impossible to construct separate social welfare mechanisms to address the
implications of each. A true commitment to social solidarity must assume that
every person deserves to live with human dignity and economic security, not
only disabled people. A comprehensive view of social welfare dynamics
mandates a link between all persons who require basic living allowances for
their physical survival, disabled or not.
Disability advocates, therefore, have three options with regard to the
basic needs component in disability allowances: first, to avoid the issue of
living allowances as unrelated to disability, an option that might alienate a
substantial group of disabled people; second, to promote dignified living
allowances only for disabled people, a path that strengthens intra-group
bonds, although it carries the risk of conveying a message that disabled
people are more deserving of those allowances; and third, to join, or better
yet, form an alliance of all people who live in poverty, which would promote
dignified living allowances for all.
The resources for establishing the fundamental right to disability
allowances are already available, although its specific formulation may vary.
One approach would be to structure it as a right to social security. Thus, for
example, Article 9 of the International Covenant on Economic Social and
Cultural Rights provides that “The States Parties to the present Covenant
41 BETWEEN HOPE AND EVIL

recognize the right of everyone to social security, including social insurance.”109


More recently, the United Nations adopted the Convention on the Rights of
Persons with Disabilities. Article 28 to the Convention promulgates that
“States Parties recognize the right of persons with disabilities to an adequate
standard of living for themselves and their families, including adequate food,
clothing and housing…” Another possible approach would be to base this
legislature on a substantive right to welfare, an attempt that was unsuccessful
in the United States.110 It seems, however, that the welfare right is of a lower
status than the right to social security, because of the related hierarchy
between social security and welfare. The vision of social insurance for all
entails higher principles of social responsibility, economic security, and
dignified standards of living. These are not the only options available, of
course, but mere examples. Additional formulations could be a right to
dignified living and/or to socio-economic security, which might achieve the
same goals while applying even higher standards. In any event, the goal here
is to show that tools and precedents for articulating such a right already exist.
One last word before concluding: as this study comes to an end, it
might be mistakenly viewed as arguing that disability allowances are the
single most important issue for disabled people in their struggle for equality,
dignity, and economic security. Although important, disability allowances
cannot be examined in isolation. Indeed, the view promoted here is that
disability allowances should be part of a larger quest for justice, and disability
rights are currently the major vehicle through which to achieve it. Clearly,
disability allowances cannot be the only issue on the agenda of disabled
people; yet ignoring them altogether is both impossible and wrong. In fact,
disability allowances receive the place that they deserve only when they are
positioned within a comprehensive view of dismantling ableism. Without
such a comprehensive plan, the “hope” component is lost and only “evil”
remains.

109 International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A

(XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into
force Jan. 3, 1976 (emphasis added).
110 On the welfare rights movement, see text to notes 50-52.