Article 15 of the Convention on the Elimination of Discrimination against Women
(CEDAW) recognized that women have the same legal capacity as men. This recognition was an acknowledgement that women were being treated differently from men, and the breach of formal equality needed to be remedied. The inextricable relationship between legal capacity and assertion of rights was not appreciated at that point. The Convention on the Rights of the Child demonstrated a better appreciation between legal capacity and the opportunity to be your own person when it introduced the principle of evolving capacity to countervail the best interests principle, in which child rights was till then implicated. The Convention on Rights of Persons with Disabilities, in contradistinction to the earlier Conventions, admits that even the possibility to assert ones rights was closely connected with the right to legal capacity. Hence the Convention explicitly recognizes that all persons with disabilities have a right to legal capacity in all aspects of life on an equal basis with others.
Along with children, the group of persons with disabilities is most often denied legal capacity across legal systems. By asserting that all persons with disabilities shall enjoy legal capacity on an equal basis with others, the CRPD sets out to universalize legal capacity. This course aims to study the content and significance of this paradigm shift; the barriers to its realization; the policy initiatives required to universalize legal capacity and the impact of such universalization on constituencies other than persons with disabilities. I Personhood Choice Participation
This first module examines the close connection between personhood, choice and participation. The module uses readings in philosophy, psychology, experiential biography and feminist theory to appreciate how choice and participation are integral to the development of personhood. Thus persons denied an opportunity: to live life according to their own lights; and to make mistakes and learn or not learn from them; are also persons who are denied to develop personhood. In a perfect example of circular logic persons with intellectual, psychosocial, and developmental disabilities cannot develop personhood because they are denied choice and participation; and are then denied choice and participation because they do not possess personhood. This module sets the ground for arguing why there needs to be a right to legal capacity.
Readings Carl Gustav Jung, The Undiscovered Self pp 63-79 ( Routledge 1958) P B Bentall Madness Explained: Psychosis and Human Nature ( Oxford University Press Oxford 2003) Bhargavi Davar, From Mental Illness to Disability: Choices for Women Users/ Survivors of Psychiatry in Self and Identity constructions in Renu Adlakha (ed) Disability Studies in India Global Discourses, Local Realities Gabor Gombos and Amita Dhanda Catalyzing Self Advocacy : An Experiment in India ( Bapu Trust 2009)
II Minority, Best Interests and Evolving Capacity
This module examines how children are the second group whose legal capacity is routinely denied. The arbitrary nature of this denial can be appreciated when the disqualification is examined from the lens of child psychology, anthropology and culture studies. The principle of evolving capacity adopted in the CRC can be usefully employed to challenge the exclusion of children from decisions which impact on them. This module explores what is required by the principle of evolving capacity and how this principle once accepted for children would aid in universalizing legal capacity.
Readings Gerison Landsdowne Evolving Capacities of the Child http://www.unicef- irc.org/publications/pdf/evolving-eng.pdf
III Support Substitution and Legal Capacity
This module explores the difference between support and substitution and how even when substitution is prompted by the benevolent impulse, its consequences are far from beneficent. Arguments in favour of substitution are primarily made by pointing to extreme dysfunctional situations such as coma, severe disability etc. it is contended that in these empirical situations communication is impossible; hence substitution is the only ethical solution. Since the argument for substitution is set up from the premise of inevitability; the extent to which inevitability emerges from the acceptance of substitution is not appreciated. Cases of persons with whom no communication can be established despite maximal support are quoted but there is no factual basis to this assertion. When substitution is possible, maximal support will necessarily stop way earlier than when it is not possible. Since substitution was both ethically and legally perceived as unproblematic; there was no impetus to push the boundaries of communication. The CRPD paradigm of universal legal capacity with support has emerged because the large scale deprivation emanating from substitute arrangements have been acknowledged. In this scenario, the new paradigm would require the boundaries of support to be pushed further and new legal artefacts created. The possibilities of support and the limitations of substitution shall be examined in this module.
Readings The MDAC studies on the abuse, deprivation and discrimination experienced through guardianship. http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_Serbia.pdf http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_Russia.pdf http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_Kyrgyzstan.pdf http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_Bulgaria.pdf http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_Georgia.pdf http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_the_Czech_Republic.pdf http://www.mdac.info/sites/mdac.info/files/English_Guardianship_and_Human_R ights_in_Hungary.pdf The primary materials subsisting on various systems of support from the Swedish ombudsman to peer support etc. http://www.peerzone.info/sites/default/files/resource_materials/Peer%20Suppor t%20Overview%20O'Hagan.pdf http://www.futurepolicy.org/5775.html Amita Dhanda Constructing the new paradigm of Universal Legal Capacity with Support
IV Legal Status and Social Reality It is often contended that the law is a poor instrument of social change and peoples lives are lived independent of the law. To this extent questions of legal capacity are only sophisticated academic questions. However narratives emerging from persons with psychosocial disabilities show that the discrimination and exclusion subsisting in the law causes people with disabilities to pass off as non disabled. Studies also show the costs paid by people who need to live their lives in denial of their real time distress. The legal status accorded to persons with psychosocial disabilities causes them to live in denial. Without people coming out of the closet, it is difficult for self advocacy of persons with psychosocial disability to take off
Readings Erving Goffman extracts from Stigma Susan Stefan The Discredited and Discreditable: the Search for Political Identity by People with Psychiatric Diagnosis 44 William and Mary law Review 1341 ( 2003) Bruce Winck The Side Effects of Incompetence labelling and the Implications for Mental Health Law 1(1) Psychology, Public Policy and Law 6-42 ( Mar 1995) Extracts from Applebaum and MacArthur Studies on Competence
V The New Paradigm of Legal Capacity and Strategies to Realize it
This module will concentrate on Article 12 of CRPD and will include deliberation on the negotiation and drafting of the article; the steps taken by States to implement it as deducible from the country reports and the concluding remarks of the treaty body; and lastly analysis of the Draft General Comment and the submissions on the comment made to the CRPD Treaty Body.
Amita Dhanda Syracuse Article Concluding Observations on article 12 Draft General Comment and submissions made to treaty body.
VI Covert Deprivation of Legal Capacity
This last module aims to open up discussion on deprivation of legal capacity to groups and individuals other than persons with disabilities. This module aims to demonstrate that deprivation of legal capacity is a time tested mode of exclusion, and the benefit of universalizing legal capacity will not be restricted to persons with disabilities. The cause of unorganized workers; stateless persons and citizens generally would be strengthened with this deliberation. This module would also demonstrate why the right to legal capacity needs to universally present.
Readings Statutes denying legal capacity Study on Trafficking of Garment and Domestic Workers.