The Right to Fail
77 Oklahoma Law Review 11 (2024)
19 Pages Posted: 16 Sep 2024
Date Written: September 12, 2024
Abstract
This Article explores the conceptual and legal dimensions of the right to fail, particularly the role of support in its conceptualization and operationalization. The right to fail is the entitlement to make choices about one's own life, even when there is some nontrivial chance of negative consequences. The most natural normative foundation for it is human dignity, as the right to fail is derived from the principle of dignity of risk, though there are additional normative arguments for it that sound more in the values of autonomy or utility. The right to fail is important in disability rights scholarship and politics, as people with disabilities are often deprived of decision-making authority in various contexts. The Article's descriptive claim is that both choice and consequence in decision-making are more interdependent in nature than the traditional individualistic framing of the right to fail might suggest. The normative claim is that we should promote the adequacy and legal recognition of support networks in order to vindicate the right to fail, particularly but not exclusively for the population of people with cognitive impairments.
Keywords: autonomy, choice, cognitive impairment, consequence, decision-making, dignity, dignity of risk, disability, family, interdependency, mental illness, sex, sexuality, support, support network, supported decision-making
Suggested Citation: Suggested Citation