Academic journal article Law & Society Review

Realizing the Right to Access in France: Between Implementation and Activation

Academic journal article Law & Society Review

Realizing the Right to Access in France: Between Implementation and Activation

Article excerpt

There is nothing more gratifying, nothing more fulfilling than being able to be free of one's movements, to be free to move, to be independent. (Lea Martin, 28-year-old woman with mobility impairment, Jan. 2015)

To be able to go out to some friends' place, without any constraint. That's my sweet dream. (Laetitia Roger, 40-year-old woman with mobility impairment, Nov. 2014)

Freedom to move, independence, access to social life: these quotes illustrate the fundamental nature of the right to access for disabled people, whereas its characterization as a "sweat dream" reveals the commonality of its infringement. In his famous 1966 article "The Right to Live in the World: the Disabled and the Law of Torts," Jacobus tenBroek pinpointed this peculiar social and legal status of the right to access for disabled people, a fundamental right at stake in everyday life and as commonly infringed upon, without this deprivation being the object of much comment: "Without legal redress in many areas, and with the frequency of arbitrary action, disabled persons have been turned away from trains, buses, and other common carriers, from lodgings of various sorts, from the rental of public and private housing, from bars, restaurants and places of public amusements [...], declared by statute as well as by common experience to be places in which the public is accommodated" (tenBroek 1966: 851). TenBroek also described in terms of "unawareness" this ambiguous legal context (tenBroek 1966: 913).

The (still) common deprivation of the right to access is a major issue. A fundamental right in itself, this right also is a precondition for the realization of several other types of rights (Mor 2018:619). Without accessibility, other disability rights such as the right to education or employment risk being nothing more than "fragmented protections," doomed to fail in their realization (Satz 2008: 541). For example, legal provisions against employment discrimination are likely to be of little effect in a context where neither sidewalks, public transportations, nor offices are accessible for wheelchair users or blind persons.

It comes as no surprise, then, that accessibility has been a key goal of disability rights mobilizations over the past decades (Barnartt and Scotch 2001; Fleischer and Zames 2011; Heyer 2002, 2015; Olson 1984; Prince 2009; Scotch 2001; Swain et al. 2013; Vanhala 2011). Parallel to national reforms, this resulted in its recognition by the United Nation's 2006 Convention on the rights of persons with disabilities (CRPD; Lawson 2014). Article 9 of the Convention provides that "To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas" (CRPD, Article 9 [excerpt]).

To what extent and how does this right to access become real in the lives of persons with disabilities? Most studies of rights (non)realization focus on intermediary actors and processes, such as collective mobilization, litigation, and administrative implementation, which mediate the realization of rights, either favoring or limiting it. This article adopts a different approach, focusing on the individual bearers for whom rights may eventually make a difference. Building upon legal consciousness studies (Ewick and Silbey 1998; Marshall and Barclay 2003; Merry 1986; Sarat 1990; Yngvesson 1988), I define an original theoretical framework for the study of how rights become real or are infringed upon at the individual level. This framework has four main characteristics: (1) rights realization has practical and material dimensions besides the more common apprehension of individual rights consciousness in cognitive terms; (2) it has a commonplace, everyday character; (3) rights do not necessarily need to be activated by individuals in order to become real, and efficient policy implementation may suffice to make rights real in individual lives; and (4) rights realization may be partly disconnected from social movements. …

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