Private Law Theory

ABSTRACT
In proposing a theory of ability capitalism, this paper considers how, where, when, and why law plays a constitutive role in labour market constructions of disability. In problematising typical or mainstream accounts that see markets as ‘natural’ social orderings, the paper suggests a constitutive economic sociology of law lens that shifts beyond the embeddedness metaphor to focus on feedback loops. Such an approach can highlight the market’s legal priors as well as the ways in which economic and legal phenomena are iteratively re-co-constituted at market boundaries. It can also highlight the role of legal predistribution and processes of commodification in the construction of disability as a market rationality. Through the commodification of labour-power, the law makes visible standard employment relations whilst rendering non-standard relations, preferences, assumptions and norms – typically those reflecting disabled people’s experiences – invisible. Thus, the paper extends historical materialist accounts of the construction of disability, explaining how and why rights-based narratives are not, and cannot be the sole response to market-generated exclusions, disadvantages, and inequalities. A cornerstone of equality legislation, the reasonable adjustment, offers a case study of natural market narratives in action and how law demurs to underlying efficiency calculations that determine a disabled worker’s inclusion in labour markets. While mainstream, natural market narratives assume rights to be a function of efficiency, a constitutive lens reveals efficiency to be a function of (predistributed) rights. This indicates additional sites at which the law constructs disability disadvantage, suggesting alternative pathways to its challenge. The theoretical contributions set out here are explored in the light of the COVID-19 pandemic’s normalisation of remote working and the resulting radical inclusion gains for disabled communities. The paper queries whether shifts in background labour market norms – where and when work tasks are carried out – might adjust some of the assumptions that feed into the efficiency calculations underlying the reasonable adjustment of remote working. If so, the prefiguration of alternative market practices suggests an additional way of challenging entrenched inequalities such as the intractable disability employment and pay gaps.

Clare Williams, Ability Capitalism: Law’s Constitutive Role in Constructing Disability, Industrial Law Journal. Published: 18 October 2024.