This past April Ari Ne’eman spoke at the
NFB Disability Law Symposium. His speech was a remarkable display of insight into not just autism and disability issues but basic political theory as well. It is certainly very rare to see someone who can cover the full range from theory to practice. It is, therefore, with the greatest respect, that I offer a few words of disagreement. Not in terms of neurodiversity but simply on the grounds of political theory in the hope of generating further dialogue on the nature of rights and their application to people on the autism spectrum. Like Ari, I strongly support the association of autism and the wider disability cause with that of the civil rights movement and see this as the basis of neurodiversity. In particular, I take the
gay rights movement as a model for my autism advocacy. Up until a few decades ago, homosexuality was labeled as a mental illness. Today it is accepted by most of society, in some form or another, as an alternative lifestyle. I hope that one-day autism will gain similar acceptance.
Ari asks the question as to the nature of rights and where rights come from. He first raises the Enlightenment option in which rights come from a social contract. Ari objects to this for two reasons. The first objection is that a state of nature has never existed and no one has ever signed any contract to place themselves under a government. One could also suggest that a contract is signed with God, but that is also a problem in a society, such as ours, that recognizes atheism as a legitimate partner in our political discourse. His second objection is that this notion of rights is very narrow and only covers negative rights. You are protected from people doing things to you but you have no inherent right to pursue freedom in a positive sense. Following Alan Dershowitz, Ari argues that rights come from a historical recognition of wrongs having been committed to a specific group. For example, the gay rights movement has succeeded in making the case to society at large that homosexuals have been mistreated and that therefore it is necessary for society to actively recognize the gay community as a wronged group and actively grant them tolerance.
As a supporter of an “Enlightenment” understanding of rights, I would like to offer an alternative understanding of rights and some thoughts on the place of autism in this system of rights. Let me first respond to the issue of the social contract. For me, the social contract is not something signed in some mythical time in the past when man lived in a state of nature, but something that we sign every day with each other. There are people who would like to persecute homosexuals, ban them from the public sphere and even cause them physical harm. Why should I care, I am not gay? The reason is that many of the same people who want to harm homosexuals and stop them from living their alternative lifestyle also want to persecute me as a Jew and stop me from living my alternative, Jesus-free, lifestyle. This suggests an alliance simply on pragmatic Hobbesian grounds. I will agree to let homosexuals live their non-hetero lifestyle if they let me live my Jesus-free lifestyle. This is ultimately codified in a society-wide cease-fire agreement known as the Bill of Rights where we agree that everyone is going to be granted a list of rights and protections and we forgo the chance to stick it to our group of choice.
I think the real important difference between Ari and me is over the issue of how broadly to draw the boundaries of rights. I believe in a “right” (a deal that I am willing to make) to life, liberty, and property. Liberty, in this case, being the right to pursue one’s own good in one’s own way as long as one does not interfere with the liberties of others. As
John Stuart Mill argued, this notion of liberty could only work if one limited it to direct physical harm. The moment you try to apply liberty to a wider notion of harm you are faced with the problem that, when living in civil society, every action affects other people and causes some form of harm. For example, it is of critical importance that we do not allow my Christian neighbors to kick me or my gay friends out of our homes despite the fact that our presence and our alternative lifestyles may be causing real psychological suffering. The moment my Christian neighbors can bring their psychological suffering into play then they get, in essence, a blank check to persecute us and the whole notion of rights, ceasing to have any meaning, collapses in on itself. As part of the liberal tradition, our response has to be that as long as my gay friends and I have not physically harmed anyone we are protected and we are free to live our alternative lifestyles to our heart’s content.
Ari, along with modern liberalism, fails to hold to this narrow understanding of rights and instead takes a broader more abstract understanding of rights. This leads to the ultimate betrayal of the liberal tradition when he places the source of rights within the context of a discourse between minority groups and society. As long as the issue of rights is only one of physical harm then, by definition, rights can only apply to individuals. The moment rights are something belonging to groups then they are no longer something belonging to individuals. Instead of a universal brotherhood of individuals comes the petty tribalism of different groups set against each other.
To bring this back to the realm of autism, we can agree that right now we on the autism spectrum are getting the worst of both worlds. We operate within a political discourse of group identity yet society does not recognize us as one of these groups. This leaves us in a situation where we are not being granted the sort of rights that other groups take for granted. For example, let us imagine I was the parent of a gay child. Now this child, being different from other children, may find himself in a difficult situation, unable to make friends and subjected to various forms of harassment. Our societal discourse would support my insistence on having the school protect my child, beyond even simple physical harm and allow him to be his own special person. Society will not tell me that the problem is my child and that my child needs to change to become more like other children. In our present discourse, the same does not apply to children on the autism spectrum; we are being told that the problem is us and the solution is for us to change to conform to society.
I see two possible roads ahead of us. The first, which I would prefer though I admit may not be practical within our present discourse on rights, is to embrace a traditional more limited notion of rights. This would take away certain rights from us, but these are not rights that we, in practice, ever had in the first place so it would not be any great loss. While we will not have these rights no other groups will have these rights either. This would be helpful, beyond simple Schadenfreude, in that this will allow us to turn around and make some deals with these same groups for our mutual benefit. Right now the gay community has no reason to help us as we have nothing that we can offer them. Now get rid of gay rights and open up gays to everything short of physical harm and we have a different story. I will agree to accept and support the gay child in exchange for support for my autistic child.
The second option, which is most likely the more practical option, is to throw our hat into the game of expansive rights along with every other group. While I do not personally support such a view of rights I can go along with this method of advocacy without hypocrisy. Just like a liberal, pocketing a Republican tax cut, I have no problem with playing the system to my own benefit. If other groups are going to benefit from this expansive notion of rights then I certainly want my group to be at the front of the line. This could even support the case for a narrow view of rights. I believe that the modern liberal expansive notion of rights is a Ponzi scheme that can only work as long as only a few groups try to cash in. Let every group come and hold society hostage to their every whim and the whole system will collapse and there will be no choice but to resort to the more restrictive understanding of rights.
I am perfectly willing to pursue either option. In truth, these two options can exist side by side. One can attack the modern liberal expansive notion of rights and make the case for a more restricted notion of rights. At the same time, while we wait for society to come around, I would encourage autistics to take full advantage of the current discourse on rights. I might even say abuse it to the fullness of our imagination.
As an addendum, I would like to briefly respond to two obvious objections to this piece. I readily admit that my method of thinking has a strongly “Asperger” flavor to it. I focus on individuals at the expense of society and I take a rather pragmatic attitude toward social relationships that does not leave much room for “empathy.” The most obvious objection to my argument is that I am “cold” and “heartless.” I do not see this as a problem. On the contrary, I see this as an example of the strength of “Asperger” thinking. Aspergers are in a unique position to appreciate the distinction between physical and non-physical harm. One of the weaknesses of neurotypical thinking is that it is so wrapped up in social relations that the two become hopelessly mixed together. I believe that being on the spectrum has helped me be a better liberal and supporter of the free society. I would also like to defend my use of the term autism considering that much of what I say would be problematic if applied to many on the spectrum. Any discussion of rights, by definition, only applies to people who have reached a certain baseline of intellectual self-sufficiency. So autism rights, by definition, only apply to autistics on the higher end of the spectrum. If you are capable of reading this piece and understand what I am saying then you can rest assured that you pass the threshold. A completely different discourse would be needed for those on the lower end of the spectrum, one based on care and charity.
