Self-determination, employment, housing, and access to credit are essential aspects of social justice insofar as they are necessary to satisfy citizens’ fundamental needs and ensure a range of basic entitlements (Caruso 2013).
All these central traits of the human condition are closely connected with (and dependent on) one of the basic and traditional concepts of private law, namely the recognition of the individual’s capacity to exercise rights and act within the framework of the legal system, i.e., ‘legal agency’, which is crucial for full involvement in society. The concept of ‘legal agency’ is essential for taking control of one’s life and making a range of choices, from the significant ones (such as deciding where and with whom to live, or getting married) to everyday decisions (for instance, taking up a job, disposing of one’s property, or consenting to medical treatment).
Historically, mechanisms related to the assignment and limitations of legal agency have been regulated by national private law. These regulations, which in the past also affected women, typically occur through the provision of an absolute substitution in decision-making process or the establishment of a (sometimes life-long) guardianship for persons with mental or intellectual disabilities, depriving them of their capacity. These practices have excluded such individuals from controlling their own lives under the guise of a paternalistic (often driven by purely economic interests) approach to disability.
The 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD) – which is broadly aimed at promoting respect for the inherent dignity of persons with disabilities and ensuring that they can participate on an equal basis with others in all areas of life – has challenged this idea. By virtue of Article 5 CRPD, ‘States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law’. Furthermore, it lays down that State Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds (Article 5.2 CRPD). This provision goes beyond a simplistic and hollow concept of equality; it lays the groundwork for addressing the issue of legal capacity and is closely linked to several other articles of the Convention.
According to Article 12 CRPD (‘Equal recognition before the law’), ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ (Article 12.2 CRPD) and ‘shall take appropriate measures to provide access by persons with disabilities to the support they may require’ (Article 12.3 CRPD).
Moreover, it is provided that ‘States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property’ (Article 12.5 CRPD).
As specified in the General Comment No. 1 of the Committee on the Rights of Persons with Disabilities, legal capacity – recognized as ‘the key to accessing meaningful participation in society’ – is an inherent right accorded to all people and is understood as the capacity to be both a holder of rights (‘legal standing’) and an actor with the power to engage in transactions and create, modify, or end legal relationships (‘legal agency’).
The latter aspect is the one that has often been denied or diminished with regard to persons with disabilities, leading to their marginalization through private law instruments (e.g., full incapacitation or plenary guardianship) which allow someone else to make decisions on their behalf, frequently based on a prejudice against them as a social type – that is, by virtue of their membership of a socially powerless group, and thus by virtue of an aspect of their social identity (Fricker 2007; Hesselink 2022).
While the Convention covers a broad spectrum of rights, which partly fall within the European Union competence and partly within that of the Member States (Ferri and Šubic 2023), it is a fact that it has been ratified by both the EU – marking the first comprehensive human rights treaty to be ratified by the EU as a whole – and all its Member States.
This highlights the alignment of intentions and binding commitments at a European level that not only assigns private law a primary role in the implementation of the human rights of persons with disabilities but also calls for ambitious and converging reforms to accelerate their inclusion.
The revolution – or the ‘paradigm shift’ – of Article 12 CRPD may not be entirely precise about the ultimate shape that legal capacity and access to support should take, but it has been clear enough to characterize the bulk of European legal capacity systems as outdated and in need of reform.
In this light, the CRPD could serve as a foundation for radical change to overcome the oppression and social marginalization caused by the deprivation of legal capacity and substitution regimes in decision-making for persons with disabilities. It calls, among other forms of intervention, for private law reforms that ensure everyone enjoys legal capacity on an equal basis with others as a matter of human rights.
The human rights-based model of disability shifts the focus away from the alleged ‘lack of legal capacity’ or ‘incapacity’ invariably linked to cognitive/psychosocial disabilities, impairments or deficiencies, towards supported decision-making that enables individuals to make decisions for themselves and expand their capacities to do so.
From this perspective, private law should ensure that persons with disabilities enjoy their rights to property (including the right to inherit it and manage or control their own financial affairs), to family life, to consent to or refuse medical treatments and to access justice, with the goal of achieving their equal, fair, and full participation in society.
Legal reforms on the legal capacity of persons with disabilities are underway in several member states, outlining new national patterns of social justice and embracing the notion of capacity as an integral part of all human beings. Many European countries have introduced, or are in the process of introducing, legislation on support in the exercise of the legal capacity, enabling persons with disabilities to make decisions that have legal effects. In line with General Comment No. 1, the term ‘support’ – which must respect the rights, will and preferences of persons with disabilities – should encompass both formal (such as the appointment by a court or other authority of a person charged with assisting the individual in making decisions) and informal (such as family- and community-based systems) support, including voluntary measures and advance planning mechanisms. The specific design of these ‘support measures’ (e.g., their scope and extent) should depend on individual needs as well as on the type of challenges persons with disabilities face when trying to exercise their legal capacity in a given context.
At the same time, CRPD has guided the content of the European Strategy for the Rights of Persons with Disabilities 2021-2030 (as well as its predecessor), which aims to make progress in all areas covered by the CRPD, both at EU and Member State level, ensuring that persons with disabilities in Europe enjoy their human rights, have equal opportunities and equal access to participate in society and economy, are able to decide where, how, and with whom they live, can move freely in the EU regardless of their support needs and no longer experience discrimination.
The topic of the full implementation of autonomy and self-determination for persons with disabilities across Europe (with the guarantee of the right to the support they may require in exercising their legal capacity), based on shared fundamental principles and values, is poised to serve as a tool for social justice.
Thus, the legal capacity of persons with disabilities may contribute to building a concept of social justice – which inherently includes a collective element (i.e., the protection not of individuals alone but of individuals who form particular groups within society) (Micklitz 2018) – beyond the nation-state through private law.
Long-standing national legal traditions and legal cultures seem to clash with the transformative power of the rights of persons with disabilities, which challenges deeply held constructs and offers opportunities for rethink some core concepts of legal systems that stem from the same long-established premises of modern individualism, overcoming certain structural identity prejudices.
All of this demands legal developments that address the core of what it means to be human (Keys 2009), balancing the need for appropriate safeguards with the right to autonomy and self-determination.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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