The Right to Live in the World: The Disabled in the Law of Torts

Abstract

Jacobus tenBroek* M OVEMENT, WE ARE TOLD, is a law of animal life. As to man, in any event, nothing could be more essential to personality, social existence, economic opportunity-in short, to individual well-being and integration into the life of the community-than the physical capacity, the public approval, and the legal right to be abroad in the land. Almost by definition, physical disability in many of its forms entails difficulties in getting about, and this is so quite regardless of the particular surroundings. Such is the case of the cripple, the paraplegic, and the legless. The word "halt" itself is a description of disability in terms of limitation on mobility. Some difficulties in getting about arise out of the conditions of the modern world in combination with the particular disability, as in the case of the deaf person in traffic. However different from what they are widely supposed to be, there are travel problems inherent in blindness and these are to some extent increased, to some extent diminished, by the structures and conditions of modem urban t Author's Note: If the blind appear in these pages more than other disabled, it may be because the author is blind and has a special interest in his kind. He thinks not, however. The fact is that the blind individually and collectively are a very active group of the disabled, if not the most active. If the National Federation of the Blind appears in these pages more often than other organizations and agencies composed of the blind or dealing with their problems, it may be because the author founded that organization in 1940, served as its president for 21 years, and is still an active leader in it. He thinks not, however. The National Federation of the Blind is an aggressive, militant, activist organization of the blind themselves which in a quarter of a century has achieved a great deal, legislatively and otherwise, and has always been in the thick of the fight. If the Braille Monitor is cited more often than other magazines, it may be because the author is editor of that journal. He thinks not, however. That journal specializes in information and coverage which have a special relevance to the issues here discussed. This article is amply flecked with footnotes, citing a wide range of formal materials. The views expressed, the author believes, are verified by his personal experience as a disabled individual far more than by all the footnote references put together. The author wishes to acknowledge his indebtedness to the following persons for their services as research assistants:

Disability, Rights, and the Construction of Sexuality in Tort Claims

“…The study of tort law from a disability perspective is quite recent, but its roots are older. Already in 1966 Jacobus TenBroek identified tort law liability rules as the foundation of the right of disabled people “to live in the world” (TenBroek ). More recently, there has been a growing interest in disability and tort law.…”

Democratizing Disability: Achieving Inclusion (without Assimilation) through “Participatory Parity”

“…Within the field of disability studies as well, the theme of inclusion has been widely discussed, beginning when Jacobus tenBroek wrote the seminal essay “The Right to Live in the World,” in which he called for the full and equal participation of people with disabilities in all realms of life (tenBroek ). More recently, many proponents of the “social model” of disability argue that whereas impairment is a physiological condition, disability is largely socially constructed through exclusionary policies and practices.…”

A Case for including Disability Policy Issues in Public Policy Curricula

“…One issue that many managers will confront during their working lives is the value that government places on lives of people who, in one way or another, have traditionally been discounted in society: minorities, immigrants, women, and people with disabilities [TenBroek, 1966;Eisenberg et al, 1982;Bowe, 19901. As Steve Kelman has pointed out, "Through government people seek recognition of their dignity and worth .…”