Relationships, autonomy and legal capacity: Mental capacity and support paradigms

Abstract

Within law and legal scholarship there are different models of legal personality and legal capacity. The most well known of these emphasises individual rationality, and is distilled into the medico-legal concept of ‘mental capacity’. In connection with the UN Convention on the Rights of Persons with Disabilities (CRPD) a new approach to legal personality is being developed, emphasising relationships of support and recognition of universal legal capacity. Recent scholarship on both ‘mental capacity’ and CRPD approaches to legal capacity has drawn from feminist writings on relational autonomy. In this paper, I use this scholarship on relational autonomy to explore the differences between these approaches to legal capacity. I argue that the approach connected with the CRPD offers a refreshing take on the importance of relationships of support in exercising legal capacity. However, despite their pronounced differences, especially in relation to the legitimacy of coercion, there are remarkable similarities in the underlying challenges for each approach: the extent to which others can ‘know’ our authentic and autonomous selves, and the inextricable relationships of power that all forms of legal capacity are embedded within.