Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity

International Journal of Law in Context, Volume 10, Issue 1, 2014

U of Melbourne Legal Studies Research Paper No. 732

58 Pages Posted: 14 May 2016 Last revised: 1 Aug 2016

See all articles by Eilionóir Flynn

Eilionóir Flynn

National University of Ireland, Galway (NUIG); University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Anna Arstein-Kerslake

University of Melbourne - Law School

Date Written: 2014

Abstract

This paper examines the regulation of ‘personhood’ through the granting or denying of legal capacity. It explores the development of the concept of personhood through the lens of moral and political philosophy. It highlights the problem of upholding cognition as a prerequisite for personhood or the granting of legal capacity because it results in the exclusion of people with cognitive disabilities (intellectual, psychosocial, mental disabilities, and others). The United Nations Convention on the Rights of Persons with Disabilities (CRPD) challenges this notion by guaranteeing respect for the right to legal capacity for people with disabilities on an equal basis with others and in all areas of life (Article 12). The paper uses the CRPD to argue for a conception of personhood that is divorced from cognition and a corresponding recognition of legal capacity as a universal attribute that all persons possess. Finally, a support model for the exercise of legal capacity is proposed as a possible alternative to the existing models of substituted decision-making that deny legal capacity and impose outside decision-makers.

Keywords: personhood, legal capacity, disabilities

JEL Classification: K00, K39

Suggested Citation

Flynn, Eilionóir and Arstein-Kerslake, Anna, Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity (2014). International Journal of Law in Context, Volume 10, Issue 1, 2014; U of Melbourne Legal Studies Research Paper No. 732. Available at SSRN: https://ssrn.com/abstract=2779376

Eilionóir Flynn

National University of Ireland, Galway (NUIG) ( email )

University Road
Galway, Co. Kildare
Ireland

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Anna Arstein-Kerslake (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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