Disability Discrimination: Obesity and the Court of Justice of the European Union’s decision in Karsten Kaltoft v Billund Kommune Case C-354/13 ECJ

Walker and Karsten are two important decisions in disability discrimination law – not solely on the basis of their legal and practical repercussions for the United Kingdom (UK) and European Union (EU), respectively, but because they capture the very ideological spirit of domestic and European anti-discrimination legislation. The former directly relates to disability discrimination in the UK and the entire EU is feeling the brunt of the Court of Justice of the European Union’s decision in the latter. This article explores the impact of both these decisions and to what extent the obese or those suffering from a functional overlay are now protected from being discriminated against by the Framework Directive 2000/78 and the United Kingdom’s Equality Act 2010.

Spatial justice: law and the geography of withdrawal

While spatial justice could be the most radical offspring of law’s recent spatial turn, it remains instead a geographically informed version of social justice. The majority of the existing literature on the subject has made some politically facile assumptions about space, justice and law, thereby subsuming the potentially radical into the banal. In this article, I suggest that the concept of spatial justice is the most promising platform on which to redefine, not only the connection between law and geography, but more importantly, the conceptual foundations of both law and space. More concretely, the article attempts two things: first, a radical understanding of legal spatiality. Space is not just another parameter for law, a background against which law takes place, or a process that the law needs to take into consideration. Space is intertwined with normative production in ways that law often fails to acknowledge, and part of this article is a re-articulation of the connection. Second, to suggest a conception of spatial justice that derives from a spatial law. Such a conception cannot rely on given concepts of distributive or social justice. Instead, the concept of spatial justice put forth here is informed by post-structural, feminist, post-ecological and other radical understandings of emplacement and justice, as well as arguably the most spatial of philosophical discourses, that of Deleuze–Guattari and the prescribed possibilities of space as manifold.

Law’s spatial turn: geography, justice and a certain fear of space

This is a critical reading of the current literature on law and geography. The article argues that the literature is characterized by an undertheorization of the concept of space. The focus is either on the specific geography of law in the form of jurisdiction, or as a simple terminological innovation. Instead, the article suggests that law’s spatial turn ought to consider space as a singular parameter to the hitherto legal preoccupation with time, history and waiting. This forces law into dealing with a new, peculiarly spatial kind of uncertainty in terms of simultaneity, disorientation, materiality and exclusionary corporeal emplacement. The main area in which this undertheorization forcefully manifests itself is that of spatial justice. Despite its critical potential, the concept has been reduced by the majority of the relevant literature into another version of social, distributive or regional justice. On the contrary, if the peculiar characteristics of space are to be taken into account, a concept of justice will have to be rethought on a much more fundamental level than that.

Giving guilt: the aneconomy of law and justice

The concept of guilt is seen here as debt beyond repayment. Following Derrida, the gesture of giving is placed in the economy of gift, an aneconomical gift that is not part of the exchange cycle. At the same time, guilt is linked to desire, the desire to give and to be free from guilt. Desire is described as the urge to cross over, to apprehend the non-identical and to give oneself away. In this reinforced crossing, where the improbability of giving conditions the improbability of reaching out, guilt and its impetus are found locked up in claustrophobic self-reference. For this reason, the author consults Kierkegaard and Luhmann whose contributions show that the gesture of giving acquires its relevance not so much on account of its recipient, but precisely because of the absence of such a recipient. The combination of an absent recipient and an absented giver fills the gift with an emptiness that can only be channelled back upon itself, in the autopoietics of guilt. This is exactly the fate of the law, which can deal with the guilty but never with guilt (in the above sense). In its attempt to give away guilt, the law attempts to become other than itself: justice. The improbability of crossing over becomes more obvious than ever.

“An Absurdly Quiet Spot”: The Spatial Justice of WW1 Fraternizations

Recent research on WW1 shows that incidents of fraternization across enemy lines took place regularly. However, fraternization remains a taboo in many contexts. The fact that the 2005 film Joyeux Noel by Christian Caron, which explicitly deals with the subject, encountered resistance from the authorities, is an indication of the kind of difficulty associated with the issue. I am drawing my inspiration from the way fraternizations are depicted in the film and in the literature in order to explore the concept of spatial justice. I define spatial justice as the question that emerges when a body desires to occupy the same space at the same time as another body. Defined like this, the question of spatial justice opens up in the dread of No Man’s Land and in particular the exchange of affects, objects and narratives that went on during fraternizations. I trace the movement of spatial justice as one of withdrawal from the asphyxiating atmosphere of the war and the propaganda machine. This withdrawal is not one of unpatriotic stance but of a courageous and difficult detachment from the supposed legality of the war that could only function on the basis of hate and demonization. While fraternizations did not end the war, they allowed for the possibility of spatial justice to emerge, as an opportunity to reorient the space and the bodies within.