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Handicapped or Disabled? A Predictable Shift in Legal Terminology
May 20,2020   By:CSHRS
Handicapped or Disabled? A Predictable Shift in Legal Terminology

LIU Pu*
 
Abstract: The negative impact of the term canji ren (“handicapped person”) has gradually come to be recognized. The terms canzhang ren (“persons with disabilities”) and canji ren (“handicapped person”) have been used interchangeably in academia. However, such interchangeable use causes difficulties for both law enforcement and the judiciary, and also gives rise to public confusion. Based on the etymology of “disabled”, its Chinese translation, and a survey of the three models of the concept of “disability”, it is apparent that the Convention on the Rights of Persons with Disabilities adopts an “integrated definition” of disability. China’s Disability Protection Law defines handicapped person in much the same way as the Convention on the Rights of Persons with Disabilities, with only minor deviations. Hence, to replace the term handicapped person with persons with disabilities is both in line with relevant provisions of the Convention as well as the legislative intent of China’s “Disability Protection Law”. In addition, this benefits the elimination of social discrimination and prejudice, as well as expanding the scope of legal protection.

Keywords: handicapped person ♦ persons with disabilities ♦ concept model ♦ term
 
The expression of legal language should be precise, concise and accurate, while fully reflecting and accurately expressing the intention of legislation. This is the basic requirement for effective implementation of the law. For a long time, we referred to people with physical, mental, intellectual and other disabilities as canji ren (“handicapped person”). In 2008, when the Disability Protection Law was amended, some scholars suggested changing the term canji ren (“handicapped person”) to canzhang ren (“persons with disabilities”).However, even today, there is still much debate. In recent years, the negative connotations of the term “handicapped person” have been increasingly prominent. Many scholars believe that the term “handicapped person” is discriminatory, so “persons with disabilities” is used instead of “handicapped person.” The expression “persons with disabilities” is now frequently used in academic papers and people’s lives. Changing the term from “handicapped person” to “persons with disabilities” reflects the changes in social attitudes towards this specific group. Their interchangeable use however inevitably brings inconvenience and misunderstanding to the application of law. The parallel or interchangeable use of terms will inevitably bring inconvenience and misunderstanding to the application of law. Should legal texts therefore adopt the term “persons with disabilities”?

I. Interchangeable Use of “Handicapped Person” and “Persons with Disabilities”

In the early days of human society, disabled people were viewed as incompetent or useless, so they were often referred to as canfei ren (“useless person”). Since the promulgation of laws on persons with disabilities in China, the expression canji ren or “handicapped person”2 has become an official term in China. However, with the progress of human civilization, social and economic development and the impact of scientific and technological improvement, all sectors of the society have a new understanding of the ability and value of persons with disabilities. In particular, with the development of international human rights cause, governments and all sectors of the society have gradually changed their attitudes toward “handicapped persons”.3 There have been calls in the international community to replace the term “handicapped person” with terms such as “people who may have limited health” “people who may have limitations in activities” “people with special educational needs” “people with disabilities” or “people with physical and mental disabilities”.4 Some scholars have begun to use the term “persons with disabilities” or “people with ** dysfunction” to refer to this specific group. This phenomenon exists both within the same discipline and between different disciplines.

In academia, when translating the foreign literature entitled Expanding the Scope of Social Science Research on Disability, Chinese scholars used the term canji ren (“handicapped person”). But within the same discipline, some scholars use the term canzhang ren (“persons with disabilities”), for example the papers entitled “Evaluation of the Objective of Employment Policy for the Disabled: Based on the Concept Model of Disability” and “Empirical Analysis on Influencing Factors of Demand for Home-Based Care Services for the Disabled Elderly: Investigation and Analysis in Six Western Provinces and Regions”.5 Sociologists usually do not define the specific meaning of “handicapped” or “disabled”, but assume that the connotations of the two are the same.

In the field of law, scholars will generally take the legal text expression as the standard, which is canji ren (“handicapped person”). However, in recent years, there has been a trend in favor of “handicapped person” being replaced by “persons with disabilities”.6 For example, the Public Interest Law Research Center of Wuhan University used the term “handicapped person” when it held a seminar on capacity building for multidisciplinary research on disability rights in China in 2012. But since 2014, all meetings held by the Center have been called “** Meeting on the Rights of the Disabled.”7 In recent years, some universities, such as Renmin University of China, Shandong University and Fudan University, have established research institutes on disability issues, often named “** Research Center for the Handicapped”. However, these research institutions have often used the term “persons with disabilities” in academic seminars held in recent years. Scholars usually think that “handicapped person” and “persons with disabilities” have the same meaning, so they often interchange the two concepts.

In the field of special education, the concepts of “handicapped person” and “persons with disabilities” are both abandoned. They believe that both terms are discriminatory because they are like labeling a specific group of people based on the individuals’ injury or limited ability. Therefore, the field of special education chooses to refer to these groups as “physically challenged” or “special”. They refer to the students of special education as having hearing impairment, visual impairment, etc., and occasionally use the concept of disability in a narrow sense.8

It can be seen that, at the theoretical and practical levels, and both within the same discipline and between different disciplines, there is an interchangeable use of “handicapped person” and “persons with disabilities”. Such problems may seem trivial, but the interchangeable use of terms can create problems when it comes to the application or enforcement of the law. The use of the term “handicapped person” will result in the situation that in the implementation of the law or social policy, people determine whether to provide legal protection or social support to an individual only based on the physical or psychological impairments of him/her, ignoring the obstacles in the social environment. Thus, the scope of legal protection is narrow. For example, in China, it is common to determine whether an individual is “handicapped” based on the method of medical evaluation, and, on this basis, to determine whether to provide legal protection or social support. In the educational field, children with learning disabilities cannot be identified as “handicapped”, and thus cannot be included in the scope of legal protection. However, they are a group that needs special protection in the process of education. Thus their rights and interests are often ignored by the society. While being discriminatory to some extent, the use of “handicapped person” could easily ignore environmental factors and hamper diversified means to determine whether to provide legal protection measures. Therefore, it is necessary to clarify the etymological meaning and historical evolution of definition of such concepts as “handicapped person” “persons with disabilities” and “person with ** dysfunction”, as well as the legislative intention of China’s laws, and re-examine whether the term of “handicapped person” should be modified.

II. Etymology Review: “Disable”, “Handicapped Person” and “Persons with Disabilities”

A. The meaning of “disable” and its Chinese translations

In lexical construction, “disable” is made up of the negative root “dis-” and the adjective ending “able” Its direct meaning includes “handicap” “weaken” and “cripple”.9 From the definition, it can be seen that people or things can both be described as “disabled”. In the early days of international interactions, the international community usually defined “disabled” by the provisions of the International Classification of Functioning, Disability and Health (ICF). The ICF describes in terms of body function and structure, and activity and participation, and makes definitions from environmental factors and personal factors, i.e., “disabled” includes the physical and mental disability of a person, and also includes the obstacles of the environment to the person. In other words, it includes the “disability” of individuals and the “dysfunction” in the environment.

There are different Chinese versions of the word “disable” in China. The common ones are canji (“handicapped”), canzhan (“disabled”), and shenxin zhang’ai (“with physical or mental handicap”). In China’s Taiwan region, it is usually translated as shenxin canzhang (“physical and mental disability”), while in the mainland, it is translated as canji or canzhang. For example, the Convention on the Rights of Persons with Disabilities is translated as shenxin zhang’ai zhe quanli gongyue10, which uses shenxin zhang’ai, while the mainland translated the title as canji ren quanli gongyue, which uses canji. “Disabled” is translated as canji in the query system of the official website of the United Nations.11 For example, “disabled” is translated as canji in the Constitution of the People’s Republic of China (hereinafter referred to as “the Constitution”), Disability Protection Law of the People’s Republic of China (hereinafter referred to as China’s Disability Protection Law) and other relevant laws.12 In domestic academia, however, “disabled” is translated as canji or canzhang. For example, some scholars translate the Individual with Disabilities Education Act (IDEA) of the United States into canji ren jiaoyu fa, which uses canji, while others translate it as canji renshi jiaoyu fa13 (using canzhang) or shenxin zhang’ai zhe jiaoyu fa14 (using shenxin zhang’ai). Therefore, it can be seen that in the international society, “disabled” refers not only the physical and mental unsoundness of individuals, but also the handicap caused by the environment to individuals. In other words, the “disability” (can) of individuals and the “handicap” (zhang) of the environment. However, the official language of China translates “disable” into canji, which literally only expresses the meaning of physical and mental impairments of individuals, but does not fully reflect the two meanings of “disabled”.

B. Canji ren and canzhang ren (“persons with disabilities”) have different meanings

In ancient times, China was a traditional agricultural country, where farmers were believed to be more important than merchants. The impairments of limb function meant the impairment or loss of ability to work. From this perspective, can means “useless,” and the canji ren are the “useless persons” in the society. So canji was also canfei (“useless”) or feiji (“useless disease”). For instance, the book of Rites - Liyun, Regulations of the Tang Dynasty, and other ancient books can serve as proof.15 It was not until the 1980s that the negative, even insulting term canfei was abolished thanks to the promotion of the disability protection cause in China. And canji ren became a common term. The Chinese word canji means an impairment in a limb, organ, or other functions.16 It includes impairments in limbs and organs, as well as functional impairments caused by disease. Canji removes the overtly discriminatory meaning of “you are useless because you are handicapped” in the term canfei.17 Therefore, canji ren has a more positive meaning than canfei ren. Since then, the term canji ren has been used officially in China. In the 21st century, with the development of China’s social economy, culture, science and technology, and under the influence of the international community, people begin to realize that canji ren (“handicapped person”) may also be discriminatory, so some people directly replace canji ren with canzhang ren (“persons with disabilities”).

In the general sense, canji ren usually refers to people who are physically, mentally and structurally disabled or have low abilities, while canzhang ren can be understood as the aforementioned group and the group with disabilities in social activities. In other words, canzhang ren include people with disabilities and those with social dysfunction due to environmental factors. “Disability”, or canji, here refers to the inability to do certain things and the reduced ability to engage in certain activities in certain ways, while “challenge”, or zhang’ai, refers to the disadvantages imposed on the individual.18 Thus, “disability” is a statement of a person’s physical and mental condition, while “challenge” is a possible social consequence of such a condition. The former refers only to an impairment, while the latter includes both an impairment and a challenge. Disability is the cause of the challenge, but disability does not necessarily lead to the challenge. For example, a child with hearing impairment is physically disabled, and must use sign language to communicate properly. If all the members of his/her family use sign language to communicate, the child has no trouble in the family environment. It is only when the child is in an environment where no one is using sign language that there is a challenge, because the problem of the environment prevents the child from fully or optimally playing the role in the environment.

It can be seen that there is a difference between canji ren and canzhang ren in the Chinese language. Canzhang ren includes “persons with disabilities” and “person with handicap”, and the scope of canzhang ren is larger than the scope of canji ren.

III. Historical Review: Evolution of the Concept of “Disability” Under Three Models

The history of canji ren as well as the development history of the societies of canji ren are both long. Human society’s understanding of the concept of “disability” has undergone a complex transformation from being static to dynamic, from single dimension to multiple dimensions.19 Under different concepts of “disability”, people have built different theoretical models of disability, which have deeply influenced social policies, legal provisions and social security measures. Therefore, it is necessary to examine theoretical models of disability to help us understand disability-related concepts.

“Disability” is an evolving concept. There are many models of “disability” in Western culture, including medical model, charity model, moral model, oppression model, pluralism model, and social construction model. These models can be summarized as individual model, social model and integration model.20 The medical model in the individual model, and the welfare model in the social model have a great influence on the society. At present, most researches in China focus more on individual model and social model, while less on integration model. Scholars often think that the individual model and the social model are diametrically opposed conceptual models, and the concept of “disability” is usually understood in these two models.21 This paper holds that the integration model of disability has appeared in the international community, which is a revision of the social model and a theoretical model of disability generally adopted by the international community today. This paper discusses the concept of disability and related theories from the three aspects of individual model, social model and integration model.

A. The Concept of disability under the concept of individual model

The theory of individual model is based on the theory of individual responsibility. In other words, a person’s disability is caused by his/her individual reasons, and the challenge is caused by that disability, so the individual should be responsible for it. Under this model, disability is seen as an individual’s misfortune, and rehabilitation focuses on improving or restoring the individual’s condition. Therefore, social policy focuses on functional limitations caused by injuries and psychological effects caused by impairments.22 The individual model is influenced by the ancient theory of separation of mind and body, which initially believed that disability was a result of sin. Based on this came the moral model of disability, and later the impairment model and eugenics model. During this period, disability was always regarded as a synonym of shame and guilt. It was not until major advances in science and medicine that the medical model emerged, which became one of the most popular models under the individual model. This model profoundly influenced the relevant institutional and social policies of the international community and many countries.

In 1980, the World Health Organization (WHO) proposed the International Classification of Impairment, Disability and Handicap (ICIDH) using the “medical model” paradigm, which divided disability into three stages, namely, Impairment (I), Disability (D) and Handicap (H). The corresponding Chinese translation is: quexian, canji and zhang’ai. Impairment refers to any abnormality or loss of certain organization or function in psychology, physiology or body structure. Disability refers to the lack of the ability to perform a normal activity as a normal person due to a disability. Handicap refers to a condition in which a person, because of a handicap or disability, is placed at a disadvantage that limits or prevents that person from playing the normal role that he or she should play in his/her age, sex, society and culture.23There is a causal relationship between the three words (as shown in Figure 1):
    Disease or Impairment ⇒ Disability ⇒ Handicap
Figure 1 Causality Diagram of Impairment, Disability and Handicap in ICIDH Published in 199824

As can be seen from Figure 1, WHO defines the three terms from the perspective of an individual’s lack of capacity or functional limitations, with the individual’s “impairment” as the root cause of his/her “disability” or even “handicap”. In this model, the causes of handicap are only the impairment or disability of individuals, without considering the possible consequences of “handicap” brought by social systems or policies. The causal sequence of the three overly makes the problems caused by disability or handicap personal in an attempt to solve a series of problems caused by disability or handicap through the recovery of individual’s hurt and disability. This theory regards disability as a loss of function, and considers “disabled people” as “sick” and “abnormal”. They are a deviation from the norm. They are “abnormal” in society. For the benefit of society as a whole, people with disabilities need to be changed. They need to mend themselves. If they cannot change themselves, they must be isolated and deprived of their citizenship. This idea results in the intentional or unintentional isolation and exclusion of the disabled in social life, which further leads to the neglect and oblivion of their interest appeals in the legal system and social policies of a country.25

The concept of disability in the individual model is characterized by stigmatization and labeling. This model focuses the concept of disability on the physical and mental impairment of individuals. Regardless of the social environment, the disabled are only required to change themselves or adapt to the existing social environment, otherwise they will be abandoned by the society. Social policies in the individual model provide little support and assistance to the disabled when it comes to resource allocation and competition with other groups.26 Therefore, this model reflects the society’s universal discrimination against the disabled, which is negative in nature. The model has since been heavily criticized.

B. The concept of disability under the concept of social model

In the period after the emergence of the individual model, the international community made many criticisms and reflections on the three basic terms of impairment, disability and handicap. Scholars believe that the original concepts and terms only reflect the medical and diagnostic perspectives, ignoring the impact of inadequate and impaired surrounding social environment, and ignoring the factor that being handicapped is caused by the relationship between disabled people and their living environment. They believe that the handicap is created when the disabled suffer from cultural, physical or social barriers that prevent them from using the social systems available to others;27 and that the words “disability” and “handicap” have unclear meanings and create confusion. Such confusion cannot effectively guide social decision-making and specific actions. Therefore, the individual model should be abolished. Later, on the basis of the criticism of the individual model, the social model came into being. The social model represents the rebellion toward and renunciation of the individual model, the theoretical basis of which lies in the strict distinction between “disability” and “handicap”.28

The social model treats disability as a “social problem” rather than an individual problem, shifting the focus of disability from clinical diagnosis and treatment or personal adjustment to the objective physical and social environment.29 This model does not deny the existence of disability, but it changes the root cause of disability from “disability” of an individual to “handicap” as a social factor. Disability is often described in terms of the handicap in a social context. In other words, as long as a potential adverse condition exists, the person in the adverse environment has a handicap. Regardless of whether the person has a physical or mental disability, he/she should be considered as disabled as long as the adverse environment causes any handicap. According to the ideas of the social model, the oppression against disabled people by society and the failure of society to provide a proper environment for disabled people are the reasons for the handicap. During this period, people’s understanding of disability focused on the review of environmental factors, and to some extent ignored the impairment of the individuals themselves. Therefore, in this model, the evaluation of whether an individual should be protected or not is mainly based on environmental factors, with relatively little regard for the feelings of individuals.

The social model also uses the terms “impairment, disability and handicap”, but it does not agree with WHO’s definition and relationship of them. Rather, this model denies the necessary causal relationship from impairment to handicap.30 With this concept, the UN resolution in 1993 adopted the Standard Rules on the Equalization of Opportunities for People with Disabilities, which specifically analyzed the difference between “disability” and “handicap”. It holds that “disability” refers to the numerous functional limitations that occur in countries around the world. A disability can be a physical, intellectual or sensory impairment, a medical situation or a mental illness. The impairment, situation or illness may be long-term or transitional. “Handicap” refers to the loss or limitation of opportunities, the inability to participate in social life on an equal footing with others, and the conflict between the person with a disability and the environment. This understanding of disability in the international community is aimed at avoiding handicap caused by factors such as information exchange or educational environment or other social factors that prevent persons with disabilities from participating in social life on an equal basis, and at enabling persons with disabilities to enjoy their due rights.

But in recent years, the social model has also been criticized by many scholars, who argue that it is not feasible to make a complete distinction between impairment and handicap. Because social “handicap” factors cannot be solved completely by relying on social changes. Whether they constitute handicap should also be judged according to the feelings of the disabled. They think it is necessary to integrate individual disability experience into the social model, and take the persons with disabilities’ situation, personal experience and social factors together into consideration, thus giving rise to a new model — the integration model.

C. The concept of disability under the concept of integration model

The purpose of the integration model is to modify the social model, to try to accommodate the individual model and the social model. This also represents a new understanding of the concept of disability. It argues that, although the individual model has the drawbacks that the social model suggests, the concept of disability in the medical model can well reduce the degree of handicap caused by disability in the early days. Although the social model emphasizes exclusion of discrimination and oppression, and focuses on the fight for civil rights, it is too ideal for disabled people with impairment to blindly stress the change of social environment and give up medical intervention. Therefore, the individual model and the social model reflect two different levels of appeals, which are not absolutely contradictory in theory. Rather, they can coexist. The integration model takes into account both individual and social factors in its understanding of disability, and holds that disability is the result of internal, external or interactive limitations caused by the deterioration of disability status or the handicap in the social environment.

The integration model redefines the criteria of impairment, disability and handicap. In 2001, the WHO clarified and revised the three basic terms of “impairment” “disability” and “handicap”, after several empirical studies and discussions in 65 countries. The International Classification of Functioning, Disability, and Health (ICF) was used instead to explain the concept of disability, which began to include the social dimension of disability in the definition, as well as the impact of social and physical environment on the individual’s functional performance. The ICF describes the concepts related to personal health in terms of body, personal and social aspects.

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As shown in Figure 2, the ICF describes disability in terms of body functions and structures, activities and participation, and views disability in terms of environmental factors and personal factors. Instead of defining impairment, disability, and handicap directly, the ICF proposes collective nouns that represent positive and negative sides. The collective noun which represents the positive concept is function, which refers to a collective term used to describe all the functional activities and participation of the body. The collective noun which represents the negative concept is “handicap”, a collective noun used to describe disability, activity restriction and participation obstacles, which is also divided into disability, activity restriction and participation handicap. In contrast to the definition in 1980, the term “disability” is replaced by “activity restriction”, and the term “handicap” is replaced by “participation handicap”. The root causes of activity restriction and participation handicap are explained from the perspective of personal and environmental factors. “Disabled” is given a larger coverage, including description of body functions and activities and expression of restricted activities and handicapped participation, judgment of individual disability and description of environmental handicap. This expression is exactly consistent with the meaning of canzhang in Chinese.

Different understandings of canzhang lead to different service objectives of social welfare policies. Those with an individual model set their goals on the possibility of changing the individuals, while those standing with a social model anchor social handicap beyond the individuals. Those sticking to the integration model comprehensively investigate the individual situation and environmental factors, and determine the legal system and social policy on that basis. Nowadays, the integration model is the mainstream thinking of the international community, and it was the idea adopted by the Convention on the Rights of Persons with Disabilities (CRPD) when it was formulated.

IV. A Review of the Purpose of Legislation: Understanding of disability in the CRPD and China’s Disability Protection Law

China was one of the first countries in the world to advocate and actively push the UN to formulate the Convention on the Rights of Persons with Disabilities. It was also one of the first countries to sign the Convention.32 The Convention entered into force in China in 2008. The Chinese government recognizes the concept and spirit of the Convention. But in China, what kind of model does the Disability Protection Law follow, the individual model, the social model, or the integration model? We can determine this by analyzing legal texts.

A. Similarities

The Convention on the Rights of Persons with Disabilities recognizes that “disability is an evolving concept that is the result of the interplay between the disabled and the attitudes and environmental barriers that prevent them from fully and effectively participating in society on an equal footing with others. On this basis, persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. The Convention argues that, however the concept of disability is chosen or defined, it is most important to recognize that the limitations imposed by disability are not only relevant to the persons with disabilities him/herself, but also to the limitations that exist or are imposed in the physical or social environment. This means that disability is not only a problem of the disabled themselves, but more importantly is caused by the social system, facilities, attitudes and other external environmental handicaps.33 Therefore, the Convention upholds the concept of disability under the integration model.

China’s Disability Protection Law stipulates that a person who is mentally, physically, or structurally disabled, or whose body structures or functions are lost or abnormal, or who has lost all or part of his/her capacity to engage in any activity in a normal manner, is a persons with disabilities. They include people with visual disabilities, hearing disabilities, speech disabilities, physical disabilities, intellectual disabilities, mental disabilities, multiple disabilities and other disabilities.34 The Commission for Legislative Affairs of the National People’s Congress Standing Committee has given an authoritative interpretation of this provision. “The concept of a persons with disabilities as defined in this article has both medical and sociological attributes. From the medical aspect, it refers to the loss or abnormality of certain structures and functions in the mind, physiology and structures of the human body. From a social perspective, it refers to the total or partial loss of the ability to engage in certain activities in a normal way. Moreover, the medical attribute and social attribute exert influence on each other and are both indispensable”.35 The concept was also adopted in the Classification and Grading of Disabilities of Persons with disabilities’ (national standards) issued in 2011. Therefore, it can be considered that the understanding of the concept of disability in China’s Disability Protection Law and the Convention on the Rights of Persons with Disabilities is both based on the integration model. They both consider individual factors and social factors in the identification of disability.

B. Differences

First, they differ in the time when determining whether or not they constitute a disability. According to the Convention, “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. It can be seen that the Convention regards whether the disability exists for long as a constituent element in the determination of disability status, while China’s Disability Protection Law does not have a time limit for the determination of disability. As long as there is a situation described in the law, one can be recognized as disabled. In the latter case, the coverage of the disabled group is larger. The term “chronic” in the definition of disability can make it difficult to identify a disability, because there are so many kinds of disabilities, and it is difficult to generalize about what is chronic. It may also result in the rights of some people with short-term disabilities not being included, thus passively losing the opportunity to be protected. Therefore, there are no “long-term” limitations in China’s Disability Protection Law, which can better protect the rights and interests of the disabled.

Second, they are different in terms of expression. On the definition of disability, the drafting body of the Convention on the Rights of Persons with Disabilities recognized that it was unrealistic to establish a standard of disability that was consistent with all circumstances and consistent with all countries. Therefore, the Convention adopted the provisions in principle, only made descriptions in principle, and defined physical, mental, intellectual or sensory disabilities. In contrast, China’s Disability Protection Law uses the methods of generalization and enumeration together. It not only defines the concept of disabled people, but also defines eight categories of disabled people. In particular, the bottom-line provision of “other disabled people” and the provision of “disability standards shall be stipulated by the State Council” provide more detailed identification standards for disabled people.

Based on the above analysis, it can be seen that the description of disability in China’s Disability Protection Law not only emphasizes the “disability” of individuals, but also considers the “handicap” factor of social environment. Like the Convention on the Rights of Persons with Disabilities, it adopts the concept of the integration model, which takes into account the physical and mental conditions of individuals and social environment. Although China’s Disability Protection Law and the Convention have some differences in the time recognition and expression of disability, China’s Disability Protection Law has already had the concept of disability under the integration mode in line with the development trend of the world. However, China’s Disability Protection Law still uses the term canji, which cannot effectively express the meaning of disability under the concept of integration model. It is easy to mislead the public into thinking that the law only protects the physically disabled, and the handicap in the social environment is often ignored, which will also bring inconvenience to law enforcement as well as other links.

V. Feasibility Analysis of Changing the Term Canji ren to Canzhang ren

Since the birth of human society, there have been disabled people. In human history, the disabled were once a severely excluded social group. With the progress of human civilization and the development of the movement for the rights of the disabled, the original thinking about the disabled has been gradually abandoned. In modern times, after the movement of racial equality and women’s rights, the movement of the disabled has played a significant role in promoting social equality, popularizing human rights and eliminating discrimination. Therefore, developed Western countries have changed their mindset and redefined those old words. For example, Japan used to use the term “person with physical and mental disabilities (zhang hai)”, but since the word “hai, or disease” is easy to cause discrimination, it now uses “people with physical and mental handicap”. In China’s Taiwan region, the term has been changed from “handicapped person” to “persons with disabilities” and to “physically and mentally challenged person”. In India, Canada and the United States, “persons with disabilities” are replacing “persons with disabilitiess”.36 Through the change of legal term, they not only established more positive legislative ideas and social policies, but also expanded the coverage of legal protection. It can be seen that countries with more developed undertakings for the disabled modify social attitudes towards “persons with disabilities” by modifying disability-related terms, and influence national legal systems and social policies by changing the terms.

In recent years, the protection of the rights of the disabled has entered an important period of rapid development in China. We should amend the law to change the term canji ren to eliminate the negative social impact brought by the term, and address the public’s misunderstanding of the concept of “persons with disabilities” in the Disability Protection Law.

It is practical to adopt the concept of canzhang ren in Chinese law. For a long time, the use of the term canji ren has caused people to focus only on the individual disabilities, and ignore the handicap caused by the social environment. According to the current laws and regulations of China, we already have advanced ideas, but we are still using the term canji ren which belongs to backward ideas. It could lead to discrimination and misunderstanding in the society. Therefore, according to the philosophy of the ICF and the provisions of the Convention on the Rights of Persons with Disabilities, the Chinese term canzhang ren can accurately reflect the situation of the interaction between the individual and the environment, and can reflect the result of the combined effects of the individual’s “disability” and the environment’s “handicap”. The expression of canzhang conforms to the spirit and development trend of international legislation, and reflects the legislative philosophy of China, which is conducive to the elimination of discrimination and misunderstanding.

Some scholars also propose the direct use of the expression “the physically and mentally challenged”. This paper, however, believes that it is inappropriate to use the term in China’s mainland today. This view can be proved by the course of law practice in China’s Taiwan. The Taiwan region used the term canji ren before 1980. Then in 1980, the Disability Welfare Law was promulgated, changing the term into canzhang ren. In 1997, the Law on the Protection of Rights and Interests of the Physically and Mentally Challenged was published, changing further the term into “physically and mentally challenged”. The minutes of the draft amendments to the Disability Welfare Law held on 22 June 1989 by Taiwan region’s legislative body, and the minutea of the 3rd joint meeting about the administrate authority’s letter requesting consideration of the second draft amendment to the Law, read: As for the difference between canzhang and zhang’ai, the latter is possible to recover by medical rehabilitation, while the former needs long-term care, with less possibility of rehabilitation. The number of the former is larger than that of the latter.37 It can be seen that the coverage of “physically and mentally challenged” is greater than that of canzhang ren, while the coverage of canzhang ren is greater than that of canji ren. If China takes a great leap from the term canji ren to the term “physically and mentally challenged”, it is bound to bring the problem of sudden increase of financial payment and the pressure of litigation to the judicial organs. It can also be seen from the concept stipulated in article 2 of China’s Disability Protection Law that the subject of legal protection in China needs to be identified according to two kinds of judgment criteria together: disability and handicap, and the legislation does not make a judgment completely based on some kind of handicap. Therefore, it is more suitable to change the term into canzhang ren at the present stage. Amending the law to change canji ren into canzhang ren, and combining the two criteria of “disability” and “handicap” to define concepts, will not only help eliminate misunderstanding and discrimination, but also expand the coverage of rights protection. Therefore, this change of term should be advocated.
(Translated by CHEN Feng)

*LIU Pu ( 刘璞 ), Deputy Dean of Human Rights Institute, Associate Professor of Administrative Law School, Director of Disability Research Center, Northwest University of Political Science and Law, Doctor of Law. This paper is one of the phased achievements of “Research on the Design and Policy Intervention Mechanism of the Protection System for Persons with Disabilities’ Right to Education in Western Rural Areas”, a fund of the Ministry of Education in 2016 to support young scholars in humanities and social sciences (16YJC880049).
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6.  For example, OPO Group for Disability (Beijing), a very influential NGO in China.
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