The emergence and consolidation of disability as an indispensable aspect of public philosophy and a catalyst of a new paradigm not just in equality law but in public law more generally provide a fresh and urgent opening for the revival of responsive legality as the defining framework for administrative justice. Yet just as the responsive and incipiently postliberal initiatives in Britain in the interwar and immediate postwar years foundered on the obduracy of restricted, autonomous and legalistic modes of legality, so the ability of a revived responsiveness to exercise its transformative alchemy is diminished by the lure of legalism and the risk of acquiescence in its hegemony. The tension between autonomous and responsive legalities can be illustrated by the way in which citizen grievance is accommodated in the separate but related mental health and special educational needs systems in England. Attention will focus on tribunals and public ombuds as twin institutional centres, before turning to a form of civic mediation which might provide a template for future procedural development.

The ‘mental health’ context

Mental distress and disability rights: from medicalism to legalism

The situations of those experiencing ‘mental distress’ or ‘psycho-social impairment’ were latecomers to the disability rights movement, commonly associated in its early phases with mobility and sensory impairment. The depiction of a wheelchair-user as the readily identifiable symbol of disability access is a recognizable legacy of that emphasis. Although the UN Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes those with psycho-social impairment within its scope, thereby acknowledging the extension of disability rights beyond the categories of mobility and sensory impairment, the recruitment of those experiencing mental distress to the ranks of ‘disabled people’ has not been without controversy (Spandler et al, 2015). Nevertheless, in the context of the modern history of responses to mental distress, the accession of psycho-social impairment to the disability rights fold has been heralded as largely progressive, as an emancipatory journey from ‘patient to citizen’ (Sayce, 2000, 2016).

That history is readily disclosed by the waxing and waning of state control within a shape-shifting legal framework, frequently characterized as expressing preferences for ‘medicalism’ or for ‘legalism’, respectively, as defining approaches.

The everyday quality of interactions between citizen and state, and the grievances they generate, should not be taken to denote a relationship that is simple and easily construed as one of inherent oppression. Street-level bureaucracy is a site of complexity, governed by its own fragile ecosystem. Individual grievance is similarly complex and socially embedded, situated in a social context that requires the cultivation of an ‘art of complaining’ that is a function of civic maturity. For those agencies charged with the task of responding to citizen grievance, constructive intervention that adds value and achieves an accountability dividend must be attuned to the complex relationships it encounters at street-level. Retreat behind a legal framework that too readily finds in law an autonomous instrument of control, insulated from complex and changing social reality, is an evasion that diminishes the possibility of transformational intervention in the name of administrative justice.

Bureaucracy and citizenship

‘A problem in relationships’

While the COVID-19 pandemic has turned the spotlight on ‘key workers’ and their undervalued social contribution, the wave of support for supermarket cashiers and delivery drivers has scarcely extended to those whose daily tasks are seen as tainted by state bureaucracy. The heroism attributed to those on the frontline of service delivery has remained largely inaccessible to those whose encounters with the public take place across a desk, office counter or, more often, mobile phone-call or computer video-link. Despite the advance of modern technology, the ‘desk’ remains a significant metaphor in the context of encounters between street and state, the site, in a small place, of their separation and of their different roles, identities and levels of power: in short, ‘the desk is a physical place where state–citizen encounters occur, but it is also a symbol of state authority’ (Dubois, 2016; Maynard-Moody, 2016: ix). Even in the contemporary world of virtual and digital bureaucracy, the notion of street-level encounter between frontline workers and individual citizens remains valid. In their contact with citizens as consumers and clients, pupils and parents, patients, tenants and vehicle drivers, street-level bureaucrats continue to function as the bearers of inherent discretion, policy co-producers and exponents of a distinctive occupational craft (Hupe et al, 2016: 16).

Disability human rights invite transgression of the traditional legal approach to citizen grievance against public authorities. In the mental health and special educational needs and disability (SEND) systems, ombuds, tribunals and mediators have accepted that invitation while being constrained from doing so effectively by the residual constraints of legalism. The Weberian model of compliance still casts its shadow, obscuring the complexity of street-level bureaucracy, of socially embedded citizenship and of intelligent accountability.

An alternative that is responsive to social reality takes account of postliberal strategic emphases: on the positive enabling function of the state and the delicate moral equilibrium of the street-level bureaucrats who embody it; on society as a positive network of empowering association and identity; and on the individual citizen as endowed with dignity and political agency by formation in the complex networks of that civic association. Against that background, the function of those agencies charged with responding to citizen grievance becomes one of orchestrating the bridging relationships between citizen, society and state so that damaging social relationships are transformed into sources of mutual restoration.

The state and therapeutic justice

The limitations of ‘administrative justice’

The illustrative material afforded by the mental health system and SEND has indicated that the barriers preventing innovation are frequently ‘structural’, entailing political considerations about the allocation of public resources, and ‘systemic’ in that they concern the way in which public authorities are organized and run. As the ethnographic literature on street-level bureaucracy indicates, they are ‘cultural’ also, concerning the ethos and texture of institutional relationships, both internal and external. Such challenges are not confined to the mental health system or SEND but extend across much of the public administration fabric: recent studies, for example, of the ‘hostile environment’ in which immigration policy has been implemented by the Home Office, and the ‘cruel, inhuman and degrading’ application of benefits sanctions by the Department for Work and Pensions, reinforce the need for approaches that go beyond the ‘usual suspects’ of more mass complaintshandling and individual retrospective redress (Adler, 2018; Thomas, 2022).

Autonomous legality and the liberal legalism into which it habitually elides represent more than a method, a way of proceeding or a set of techniques. Instead, they have to them an imaginative dimension that establishes a distinctive mentality, which through social reinforcement comes to seem mere common sense. It is this quality of liberal legalism that inspires its potency and its manifestation in subtly different guises, whether those of the common law mind, rights-based legalism or constitutionalism. In the image of the judge, also capable of deployment in the cause of a more repressive alternative, autonomous legality, and its sibling liberal legalism, finds persuasive expression.

The limits of liberal legalism

‘A pathology of the legal order’

In a study of the California Industrial Accident Commission (IAC) published in 1969, sociologist Philippe Nonet turned his attention to a government agency with significant dispute-resolution and rights-determining functions. Its remit was the administration of workers’ compensation laws in California, which since 1910 had governed the liability of employers for injuries to employees at work. The story Nonet had to tell was one of ‘the transformation of a welfare agency into a court of law’, of how an administrative authority with wide discretion and a mandate for social action had during the course of 50 years ‘lost most of its early sense of initiative and public mission’, instead acquiring the ‘outlook of a passive arbitrator, responsible only to those private interests of labor and industry it was originally meant to regulate’ (Nonet, 1969: 1). The story was, in other words, one of ‘legalization’, whereby the IAC became a ‘highly self-conscious judicial body, largely removed from the concrete problems of welfare policy and governed by exacting standards of procedure’ (Nonet, 1969: 1).

A significant aspect of the process of transition identified by Nonet was what he described as the gradual shift from ‘pattern orientation’ to ‘claims orientation’. In its early days, the IAC had little interest in the adjudication of individual claims. Instead, its chief concern was to create or foster appropriate practices in the management of claims and the provision of medical care, with interventions limited in purpose to educational and corrective action. In that context, the IAC’s residual adjudicative functions were merely a ‘safety valve’ for the small minority of cases that did not resolve themselves.

The association of contemporary liberalism with a legalistic social imaginary makes urgent the task of renewed critique in an era that is characterized as postliberal. Postliberalism as a political stance entails reacquaintance with strands of liberal thought that have slipped from prominence. In particular, it seeks to recognize the state as positive and ethical, and to situate the individual in a complex web of civic association that is a source of both identity and political agency. In the tradition of political pragmatism, it finds a function for response to citizen grievance that is primarily problem-solving and consensus-building rather than adjudicatory. Its imaginative representation, in contrast to that of the judge, resituates the virtue of justice in the company of other virtuous dispositions and as an aspect of the common good.

Postliberal democracy: ‘going on together’

Warnings of liberalism’s demise are hardly new, and indeed the concept of postliberalism by now has a significant pedigree (Gray, 1993). Various forms of communitarian, civic-republican or radical-democratic glosses on liberal themes are well established, including experiments in Third Way and Big Society politics. Indeed, the New Liberalism of L. T. Hobhouse and J. A. Hobson, which in the years before the First World War responded to the new wave of interventionist legislation by developing a positive account of liberty and of the state, might be seen as a precursor of the postliberal adaptation of classical liberalism. Yet events since the financial crash of 2008 and the global pandemic of 2020 have served severely to dent confidence in any prospect of a liberal ‘end of history’ and to intensify debate about alternative projections.

Even before the pandemic, there were insistent reports of the death of liberalism, or at least of the neoliberal form it has taken since 1979. The financial crash of 2008 represented a serious jolt to established assumptions about liberalism’s inevitable hegemony at the endpoint of history. The rising tide since then of populist and nationalist government in western states, has reinforced the suspicion that the neoliberal era of globalization has run its course and that liberal ideology itself is insufficient to meet the challenges of the moment.

Responsive legality, formally articulated in the US in the 1960s, largely failed to take root in the UK, despite the seeds of such an approach contained in the aspirations for tribunals between the World Wars, and for the ombud after the Second World War. More recently, administrative justice in England specifically, by contrast with the devolved administrations in Scotland, Wales and Northern Ireland, has at times been out of step with developments in other areas of substantive law which have implications for it and for the relationship between citizen and state. One significant area of innovation has been that of disability human rights, as part of a broader awakening of interest in the significance of disability as a social construct and as a litmus test more generally for inclusive citizenship. The advent of disability human rights as a ‘new paradigm’ in a legal context has been matched therefore by its reception as an aspect of human experience that must be reckoned with in any public philosophy that seeks to respond purposefully to contemporary society. The implications of disability human rights for the task of responding to citizen grievance in a postliberal context assume powerful illustrative force.

Disability human rights and social movement politics

‘Teamwork at the heart of everything’

Bert (later Sir Bert) Massie was born into a large working-class family in Liverpool shortly after the Second World War. When he was three months old, doctors told his mother he had polio. At that moment, his personal life became inescapably entangled with the development of disability rights. Yet the language of disability rights was for much of Massie’s life unavailable as an interpretative framework: as a child, he had no inkling that he was ‘disabled’ until somebody told him. Yet human diversity on the street where he grew up was inescapable: epilepsy, deafness, immobility, facial disfigurement and myriad other hidden impairments (Massie, 2019: 48–9).

The significance of social class and social disadvantage was not lost on him, nor the importance, and at times the ambiguous quality, of the emergent welfare state as a means of lifting people out of poverty: too often ‘things done to you, not with you’, and early social segregation at the Children’s Rest School of Recovery in Liverpool.

This book is a warning label for jokes, especially offensive ones. Of course, warning labels sometimes go unheeded. For example, safety stickers on toys don’t stop kids from swallowing Lego bricks and ending up in the hospital. Likewise, racists, misogynists, and homophobes will continue to tell jokes that injure others, no matter how much we implore them to stop. For the rest of us, The Trouble with Jokes aims to shed light on the kinds of laughter we’re capable of, the types of humour we enjoy, and the effects our jokes have on those at whom they’re directed. In particular, the book wants to recognize humour for what it is: a form of communication that’s so effective at conveying its message – whatever that may be – precisely because it denies that it’s trying to tell us something important in the first place. This is why humour is the go-to medium for political extremists. An offensive joke doesn’t yell and scream and kick down your door; it gets you to invite it in for a friendly chat about nothing in particular. Before long, it’s moved into your house and turned your spare room into a base for its political operations.

One of the most nuanced explorations of comedy and its attendant risks is found in Trevor Griffith’s 1975 stage play Comedians. Comedians has become a touchstone for thinking critically about humour, and for good reason. Set in an evening class for amateur stand-ups in the north of England, the play explores the familiar tensions around comedy: its ability to comfort, its willingness to shock, its flair for critique, and its propensity for violence. The play invites us to listen to the jokes told by the different characters and then helps us to pick apart the assumptions beneath the jokes. Some jokes are gentle and harmless. Others are edgy and transgressive. Yet others are mean and nasty. It’s never clear where we’re supposed to draw the line between joke-telling and hatemongering, or if there’s a line to be drawn in the first place. The play leaves us with no easy answers and offers few consolations; the only lesson is that humour is a pharmakon, both poison and cure.

In June 2022 the US Supreme Court overturned Roe v. Wade, the landmark 1973 case that guaranteed women the federal right to an abortion. Following this decision, more than a dozen states – including Arkansas, Alabama, Texas, and Mississippi – banned or severely restricted access to abortion services. The consequences of this reversal of legal precedent soon became clear. Stories began to emerge of women and girls having to travel hundreds or thousands of miles to neighbouring states to abort foetuses that suffered from a lethal birth defect or were the product of rape. More broadly, the Supreme Court decision represented the biggest rollback of reproductive rights for women in decades and has the potential to affect other constitutional rights, such as same-sex marriage and access to contraception. Given the magnitude of this shift, it came as no surprise when protestors took to the streets across the United States to denounce the court’s ruling.

Enter Matt Gaetz, Republican member of Congress for Florida’s first district. A month after Roe v. Wade was overturned, Gaetz gave a speech to students at the annual summit of Turning Point USA, a non-profit organization that promotes libertarian capitalism and grassroots anti-leftism. In his address, Gaetz targeted the physical appearance of pro-choice activists:

The speech is striking in its misogyny. Gaetz is saying that women who advocate for reproductive rights are fat and ugly – which is another way of saying that they’re socially worthless. But just as striking is Gaetz’s use of humour.

In August 2016, residents in Green Bay, Wisconsin reported sightings of a clown wandering the streets at night and holding in its hand four black balloons. After photos of the clown went viral, other sightings began to occur with alarming frequency. Clowns were spotted in woods, outside schools, and on urban scrubland across the US. A typical video on YouTube showed a clown skulking in the shadows before charging towards the camera, teeth bared in a menacing grin. The news media amplified the phenomenon by broadcasting interviews with worried parents and law enforcement officers. Before long, clown sightings had spread to the rest of the world.

The Great Clown Scare of 2016 taps into a deeper myth around clowns. The modern circus clown has its historical roots in trickster figures such as Harlequin and Pulcinella, stock characters who follow their own strange rules and mock our sense of order and decorum. The contemporary clown, too, is an ambiguous character, by turns silly and threatening. In the circus tent, the clown wears outrageous clothes and puts on an odd voice, throwing pies at people and destroying property with a gigantic mallet. It’s unnerving to watch the clown go about its manic business and we’re unsure whether we should join in with the fun or take cover from the chaos.

In recent decades, the evil clown has become a cultural archetype, one that resonates with some of our most primal fears. As cultural critic Mark Dery puts it, ‘the psycho-clown who takes sociopathic slapstick outside the ring is moving centre stage in the pop unconscious’. Part of this shift is no doubt related to US serial killer John Wayne Gacy, who famously performed at kids parties and charity events as Pogo the Clown, earning him the sobriquet the ‘Killer Clown’. Gacy’s infamous statement to police officers that ‘a clown can get away with murder’ confirms our worst suspicions about clowns: that behind all the extravagant wackiness lurk some grisly secrets.

Since Gacy, the trope of the scary clown has continued to spread in popular culture. We see various iterations of this candy-coloured nightmare in books and films,

This book is a warning label for jokes. Of course, this book is much longer and more nuanced than the kind of label you’ll find on the packaging of products with small parts. But it says basically the same thing: humour is a choking hazard. A joke is something you put in your mouth and roll around on your tongue, feeling its sharp edges and rough textures. You enjoy its taste, its consistency. Yet if you’re not careful, a joke can get stuck in your throat. One minute you’re fooling around, the next you’re gasping for air.

We’re accustomed to thinking of humour as a diversion from the serious side of life. But probe a little deeper and we see a darker side to humour. Jokes are passive-aggressive: they command us to take pleasure in their punchlines, and they won’t take no for an answer. A joke prods and pokes until it gets a response, and there’s nothing we can do about it – apart from gritting our teeth and forcing out a chuckle. At its worst, a joke can tease and taunt and bully and harass (‘The joke’s on you’). If we fail to laugh, a joke reproaches us for refusing to join in with the fun (‘Can’t you take a joke?’). And however bad it gets, a joke can always shrug its shoulders and walk away from the carnage (‘It’s just a joke’). In the not-serious world of jokes, anything is permitted and everything is fair game, and this is what makes humour so seductive and so insidious.

The Trouble with Jokes explores the hidden risks of humour in civic life. Weaving together cultural analysis, political discussion, and philosophical reflection, the book explores humour as a complex and contradictory phenomenon at the heart of modern society. The main argument of the book is that humour is a political discourse that thrives on transgression and outrage. In the public sphere, jokes obscure the line between irony and sincerity, which lowers our defences against objectionable ideologies. This explains why humour has fuelled some of the most worrying political trends today, such as the rise of the far right, the spread of online conspiracy theories, and the resurgence of violent misogyny. Academic studies on humour and politics, with some notable exceptions, tend to overstate the extent to which jokes can subvert power relations or liberate us from oppression.

In the podcast series Dear Joan and Jericha, comedians Julia Davis and Vicki Pepperdine play two middle-aged agony aunts who respond to their listeners’ letters. The podcast covers the familiar terrain of advice columns like The Sun’s Dear Deirdre: sex, relationships, and embarrassing bodily problems. The twist is that Joan and Jericha offer truly awful advice. In the show, the agony aunts blame women for their problems but cloak their misogyny with a tone of sympathy and solicitude. In one episode, a 59-year-old listener writes in:

We’d normally expect an advice columnist to push back against the husband’s demands and insist on a woman’s right to control her own body. Instead, Joan and Jericha offer some hilariously inappropriate feedback:

The agony aunts imply that a boob job is a small price to pay to please your husband. Expanding on the theme, Joan and Jericha tell their listeners that men will become violent, quite understandably, if their desires aren’t met. It’s very simple, Joan says:

Dear Joan and Jericha is so funny because agony aunts are meant to be caring and compassionate, not irredeemably chauvinist. It’s as if the presenters of BBC Radio 4’s Woman’s Hour have been radicalized by male supremacists in the manosphere, swapping soothing homilies for virulent anti- feminism. We laugh at this unexpected juxtaposition because we know that these worlds don’t belong together, that women ought not to parrot the views of their abusers.