International Rights of Older Persons: Ageism, Justice, and Social Policy

Vol. 35 Issue: 2

by

About the author: Prof. Israel (Issi) Doron is the Head of the Department of Gerontology, University of Haifa, Israel. He is also a former “International Commissioner” of the ABA Commission of Law and Aging.

(Note: The pdf for the issue in which this article appears is available for download: BIFOCAL Vol. 35, Issue 2.)

Introduction
Much has been said on the fact that we are living in the era of a demographic revolution: the revolution of ageing. The data and the implications on the dramatic change in the demographic composition of the human race are well-known, and have been reviewed in recent decades in innumerable articles, studies, and books. I would go so far as to say that there exists today a fairly broad consensus that one of the most important social policy issues that will engage the entire world in the 21st century is the issue of the ageing of society.

There are those who say that at issue is no less than a “social revolution,” and even if we do not agree with this term, it is undoubtedly a change in the human experience of a type that has never before been experienced in human history: There has never before been a time when a person could rise in the morning, go out into the public space, and every fourth person he or she meets in the street is above the age of 65. Looking inward, the central challenges in the domestic political sphere will therefore be connected to the various aspects of the ageing of the societies, and for the broad implications that this phenomenon will have on economics, health, and society.

This social demographic revolution has also legal implications. Elder law and the issues of rights of older persons have become key elements in legal reforms all over the world. New and novel pieces of legislation along new precedents and court-based (common-law) developments can be found almost in any country around the world. This is true not only on the national-law level but on the international-law level as well. As of today, one of the most important discussions at the international level is whether there is a need for a new human rights convention regarding the rights of older persons. I have written in the past on this issue (Doron & Apter, 2010, 2010a; Doron & Spanier, 2010; Doron, Brown, & Somers, 2013).

In this short article, which is based on my presentation, August 13, 2013, in New York as part of the fourth meeting of the UN Open Ended Working Group on Ageing, I argue that the need for such a convention rests, amongst other things, on the need for social justice for older persons around the world.

On Professor Nancy Fraser’s Model for Social Justice
My argument is based on a theoretical model of social justice. This model was presented by Professor Nancy Fraser of the New School for Social Research, New York, NY, in her article entitled, “From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age” (Fraser, 1995). It is a philosophical argument comprising four different parts, which I will briefly present below:

Injustice of Distribution vs. Injustice of Recognition
In the first phase of the argument, Professor Fraser draws a distinction between two different kinds of social injustices: economic-distributive injustice and cognitive-cultural injustice. According to her, the distinction is based on the fact that:

The first is socioeconomic injustice, which is rooted in the political-economic structure of society. Examples include exploitation (having the fruits of one’s labour appropriated for the benefit of others); economic marginalization (being confined to undesirable or poorly paid work or being denied access to income-generating labour altogether); and deprivation (being denied an adequate material standard of living).
The second kind of injustice is cultural or symbolic. It is rooted in social patterns of representation, interpretation, and communication. Examples include cultural domination (being subjected to patterns of interpretation and communication that are associated with another culture and are alien and/or hostile to one’s own); nonrecognition (being rendered invisible via the authoritative representational, communicative, and interpretative practices of one’s culture); and disrespect (being routinely maligned or disparaged in stereotypic public cultural representations and/or in everyday life interactions).” (pp. 70-71).

Exploited Classes, Despised Classes and Bivalent Collectivities
After Professor Fraser presents both types of the different injustices, she then presents what is derived from them – in other words, a spectrum of various types of “collectives” or “classes.” On one end of this group spectrum are the exploited classes: “At this end let us posit an ideal-typical mode of collectivity whose existence is rooted wholly in the political economy. It will be differentiated as a collectivity, in other words, by virtue of the economic structure, as opposed to the cultural order, of society. Thus any structural injustices its members suffer will be traceable ultimately to the political economy.” (p. 75). In practice, the classic example of such an exploited “collective” is, of course, the “working class,” at least in its Marxist conceptualization.

On the other end of the collective spectrum, Professor Fraser describes the following group: “At this end we may posit an ideal-typical mode of collectivity that fits the recognition model of justice. A collectivity of this type is rooted wholly in culture, as opposed to in political economy. It only exists as a collectivity by virtue of the reigning social patterns of interpretation and evaluation, not by virtue of the division of labor. Thus, any structural injustices its members suffer will be traceable ultimately to the cultural-valuational structure.” (p. 76). In practice, a good example of such a decentralized collectivity is, for example, the group of homosexual people who, despite the fact that they are dispersed across all parts of the economic-standing class of capitalist society, still suffer from scorn and humiliation due to their sexual orientation.

Finally, in a range between the two edges of the spectrum, Professor Fraser presents the collectives that she calls “bivalent,” which suffer both from economic and cultural injustice. As she says: “When we consider collectivities located in the middle of the conceptual spectrum, we encounter hybrid modes that combine features of the exploited class with features of the despised sexuality. These collectivities are ‘bivalent.’ They are differentiated as collectivities by virtue of both the political-economic structure and the cultural-valuational structure of society.” (p. 78). According to Professor Fraser, belonging to a gender or racial group are examples of bivalent collectivities, in which both encompass dimensions of economic injustices alongside cultural and symbolic injustices.

Affirmative Remedy vs. Transformative Remedy
After presentations of the various types of injustices, and presenting the types of social collectives derived from them, Professor Fraser goes on to present the various types of “remedy,” which purport to provide a solution for the various social injustices. Similar to the previous phases, Professor Fraser draws a conceptual distinction between two different types of social policy whose purpose is to resolve or to remedy the injustice: affirmative remedy and transformative remedy. Or, in her words:

My aim is to distinguish two broad approaches to remedying injustice that cut across the redistribution–recognition divide. I shall call them ”affirmation” and ”transformation” respectively... By affirmative remedies for injustice, I mean remedies aimed at correcting inequitable outcomes of social arrangements without disturbing the underlying framework that generates them. By transformative remedies, in contrast, I mean remedies aimed at correcting inequitable outcomes precisely by restructuring the underlying generative framework. The nub of the contrast is end-state outcomes versus the processes that produce them. (p. 82).    

Integration: The Results of an Intersection between the Types of Injustices and the Types of Remedies
After presenting the various types of injustices, the various types of social collectivities that are derived from them, and the patterns of the “remedy” for the various types of injustices, Professor Fraser, in effect, moves on to the operative “result” of the integration of the matrix of these classifications. The result is the following table (p. 87):

[For the chart, please see page 54 of BIFOCAL Vol. 35, Issue 2.]  

As the table shows, each intersection of a type of injustice with a type of change leads to a different pattern of social policy. From a description of matters thus far, it is fairly clear that Professor Fraser, on the conceptual level, supports a policy that integrates a transformative remedy on both of the injustice fronts – the redistributive as well as the recognitive. Or, as she puts it: “For both gender and ‘race’, the scenario that best finesses the redistribution–recognition dilemma is socialism in the economy plus deconstruction in the culture.” (p. 91).

Status and Injustice for Older Persons
At this point, I would like to incorporate the knowledge about the ageing, along with Professor Fraser’s theory of social justice that was presented above, and to ask first: From what “injustice” do older people suffer? And what “type” of social group are they? I will risk stating that, generally speaking, older persons suffer from what Professor Fraser would call distributive injustice. The basis for this argument is supported by a wide range of well-known data relating to poverty rates of older persons around the world: a significant portion of the older population experiences poverty. In many countries around the world, many older persons suffer from moderate or severe nutritional insecurity, or experience economic distress. I believe that there is sufficient evidence to prove that there is truth to the argument that older persons across the globe indeed suffer from “distributive injustice.”

I now arrive at the central question: Do older persons suffer – in addition to the distributive injustice – from cultural and symbolic injustice as well? My answer to this question is: Yes. Older persons are not only an exploited class, but a disparaged class as well. They are a disparaged class due to the fact that they suffer – significantly and substantively – from what is known as ageism. Ageism is a complex term, which is not easy to define. One of the key figures in connection with developing the boundaries of the term ageism and defining it is the late Dr. Robert Butler. One of the first definitions, known as “Butler and Lewis’s definition” of 1973, defined ageism thus (Butler and Lewis, 1973):

Ageism can be seen as a process of systematic stereotyping of and discrimination against people because they are old, just as racism and sexism accomplish this for skin color and gender. Old people are categorized as senile, rigid in thought and manner, old-fashioned in morality and skills [. . .] Ageism allows the younger generations to see older people as different from themselves, thus they subtly cease to identify with their elders as human beings.

Do older persons suffer from ageism around the world? Once again, I believe that there is ample evidence to suggest that the answer is yes. Older persons are discriminated because of their age at the work force; they are presented in a humiliated way in various popular media platforms; they are invisible to many key cultural institutions; and they are marginalized in major social activities. In most parts of the world, no one wants to be named: “old person.”

So - What Kind of “Social Justice” Do Older Persons Really Need?
At this stage, it is time to move to the socio-legal remedies. In my opinion, the socio-legal policies that have been adopted in many countries around the world in the sphere of social justice in old age have focused on the different aspects of affirmative remedy of the distributive injustice:

  • Creating a social security system that is based on old age and survivor allowances alongside old age assured income systems;
  • Adding long-term care (either in the community or in institutions) to social security schemes;
  • Allocating resources to financing institutional frameworks for nursing care; or
  • Creating a range of economic discounts and benefits for “senior citizens.”

These all focused on an attempt to redistribute revenues in a manner that would “correct” the injustice of the elderly poor.

On the other hand, thus far, in the vast majority of countries around the world, no effective and significant legal action has been taken as part of a coherent and clear social policy aimed to contend with the symbolic and cultural-recognition injustice of older persons. Reality in many cases is quite the opposite: Social policies increased and emphasized the aspects of weakness, illness, and disability of older persons, and in so doing, in effect, reflected and bolstered the disparagement and the humiliation from which older persons suffer.

My personal conclusion from the analysis presented above is clear: in the sphere of socio-legal justice for older persons, national and international focus should be shifted from the “well-known failure” of redistributive justice to the “unknown failure” of cultural and symbolic justice. More specifically, this conclusion is relevant to the current discussion at the international level regarding the need for a new and specific human rights convention for the rights of older persons.

Beyond all other arguments, the understanding that there is a real symbolic, cultural, and “recognitional” importance to a new international human rights convention exclusively dedicated to older persons – is of significance. It explains why even if legal rights of older persons can be currently indirectly addressed through existing human rights instruments – this is not enough: it will not resolve the existing socio-legal injustice older persons are experiencing. Only a new and exclusive human rights convention will symbolize and dignify our recognition of older persons as a fully equal group worthy of society’s respect.

References

Doron, I. & Apter, I. (2010). International rights of older persons: What difference would an international convention make on the lives of older persons? Marquette Elder’s Advisor Law Review, 11(2), 367-385.

Doron, I. & Apter, I. (2010a). The Debate Around the Need for an International Convention on the Rights of Older Persons. The Gerontologist, 50(5), 586-593.

Doron, I., & Spanier, B. (2012). International convention on rights of older persons: Where we were, where we are and where we are going? Global Ageing, 8(1), 7-16.

Doron, I., Brown, B., & Somers, S. (2013). International protection for the human rights of older people: History and future prospects. In P. Brownell and J. Kelly (Eds.) Ageism and Mistreatment of Older Workers: Current Reality, Future Solutions (pp. 165-180). NY, New York: Springer.

Fraser, N. (1995). From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age. New Left Review, 212, 68–94. ■ 

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