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Universalizing Legal Capacity

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.