'Temptation's Page Flies Out the Door': Navigating Complex Systems of Disability and the Law from a Therapeutic Jurisprudence Perspective
56 Pages Posted: 27 Jun 2018
Date Written: June 26, 2018
This article considers the difficulties inherent in the navigation of the legal system and the disability system, difficulties made more complicated when these systems intersect. Although this problem is not a new one, remarkably, it has never been the subject of any legal scholarship. We argue here that it is futile to consider either system to be a uniform one, and that to make any sense of the underlying ambiguities, it is necessary to consider both the potential conflicts both between domestic and international law (using fitness to proceed to trial as a case example), and the conflicts between social and medical models of disability (using eligibility for social welfare benefits as a case example) in order to bring coherence to this enterprise. We focus also on the significance of competency of counsel in any such effort, the potential impact of the UN Convention on the Rights of Persons with Disabilities on the underlying questions, the importance of the stigma of what we call sanism on the part of all system “players” (including lawyers), and on the need to embrace the principles of therapeutic jurisprudence in any attempt to resolve the contradictions and ambiguities inherent in the intersection of these systems.
Keywords: therapeutic jurisprudence; international human rights law; disability law; mental disability law; competency to stand trial; social welfare benefits; adequacy of counsel; sanism; Convention on the Rights of Persons with Disabilities
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