Making All the Difference: Inclusion, Exclusion, and American Law

For Martha Minow the "difference dilemma" is the social condition, social paradigm, and set of social events - in particular those in relation with the law, that remove all possibility to consider and provide a `choice between integration and separation' (pp. 20-21). This is when it becomes either (politically) unfeasible, or (financially) impracticable, or even (legally) impossible to treat people as other, as different without making them carry the stigma of difference and exclusion, and consider people as same without becoming insensitive and indifferent to their otherness, needs and idiosyncrasies. To reduce the effects of the dilemma and to suggest first solutions, Minow advocates a shift in the paradigm used to describe "difference": `from a focus on the distinctions between people to a focus on the relationships within which we notice and draw distinctions' (p. 15). This is because the "difference dilemma" has grown from the way society has constructed categories and decided on this basis whom to include and whom to exclude. To achieve her purpose, with an emphasis on the law and legal practice in the US, Minow divides her book into three parts. Part 1 deals with the dilemma as such. Minow gives in chapter 1 detailed explanations and legal examples in education (bilingual and special) that illustrate well the "difference dilemma". Chapter 2 is concerned with examining the forces (i.e. assumptions) that render the "difference dilemma" intractable. These sources of difference include considering that "difference" is intrinsic, adopting an unstated point of reference and comparison, treating the other as having no perspective, considering the other perspectives as irrelevant, and considering that the social and economic arrangements are natural and neutral. Minow offers some ways out in chapter 3 around the idea that "difference" is not inherent but rather a feature of a comparison drawn between people. Part 2 looks into the historical aspects and the evolution in social and legal thought that has brought about and consolidated the dilemma in contemporary legal practice. Chapter 4 presents three contrasting approaches to "difference". The first assumes that "difference" is inherent hence the need for special legal treatment; the second, in guaranteeing equal rights, constructs a category of sameness (i.e. those whose equality of rights is guaranteed) different from those who are not the same; with the third, "difference" is a function of social relationships and knowledge. Chapter 5 critically examines the persistence of the abnormal-persons and rights approaches; the latter is further expanded in chapter 6 around the idea that `commitment to provide the same treatment to all' strengthens `institutional arrangements that deny special accommodations.' (p. 146) This critique leads to the adoption of a relational view of the social domain, which is reviewed in chapter 7. Part 3 places emphasis on the question of rights from a social-rela

Minow gives a well-balanced overview of the problem of being different and how we tend to define "difference" as something inherent in others. She offers solid suggestions for overcoming the unstated assumptions we make that harm those whom we see as different. Her references are well-documented, and cover a broad spectrum of political perceptions. Minow recognizes that the same unstated assumptions that affect our views of the "different" also affect the inflexibility of our legal system. Her explanations are both clear and cogent.The work is strengthened by practical illustrations and by the realization that sometimes we work in less than ideal situations, with what we have. Well written and very "read"able. One of my favorites.