Issues I’ve been thinking about for some time, relative to the work on legal capacity under Article 12 of the Convention on the Rights of Persons with Disabilities. I am finding support for my conceptualization in some readings in my coursework for the Public International Law master’s degree program at the University of Oslo.
- An article by Teruhisa Se and Rie Karatsu on a conception of human rights based in Japanese culture posits that autonomy is developed by cultivating empathy and internalizing the actual and imagined viewpoints of others about one’s own behavior, to the point of generalizing to an abstracted other and being free to act in accordance with one’s own conscience. This is counterposed to the Western sense of self as being independent from others, developed based on internal promptings, and conscience as being based on adherence to principles.
- An article by Matthew Craven titled “Statehood, Self-determination and Recognition” in the International Law textbook edited by Malcolm Evans (4th edition). This article which might seem dry from the title is blowing my mind because its discussion of the historical evolution in conception (and construction) of the state – in a European context that shaped modern international law – shows a number of relationships with legal capacity. First, there is a parallel and analogy between the individual’s legal personality and the conception of states as having a legal personality, in both cases the recognition/ conferring/ according of legal personality is a subordination to law at the same time as it is a creation of status that allows legal freedom (within the constraints of the law). Also in both cases legal personality was conferred on some while withhleld from others or conferred in only a limited form.
Legal personality of states was an evolution away from a natural-law concept of state sovereignty that identified the state with the sovereign in the form of an individual ruler, to whom a particular territory and population were subordinate (and did not have their own legal personality as a collective). The abstraction of the state allowed it both to take a more active role in “governing” rather than only ruling its population, and to be subordinated to a (more postivist) regime of international law. The shift to “governance” is related to the second relationship with legal capacity: it is said to have been related to mercantilism and the awareness of land as something to be used (eliminating the commons) and the possibility of putting the population to work; this motivated settler colonialism in addition to a shift within European countries. While the article hasn’t discussed this yet, it makes me wonder about the rise of the abstracted individual, which is the basis for traditional legal capacity in the West, and which is also related to the rise of a mercantilist class.
Oh, and it makes me think about the personality of corporations, which the U.S. Supreme Court decided in Citizens United implies that they have the same rights as individuals. My partner Diana Kline predicts that the next wars will be fought by corporations; it is a terrible thing to imagine but that is the direction that we are going in. And with the rise of corporations as formal actors in international law with legal standing to compel states to binding arbitration through free trade treaties being negotiated (e.g. Trans Pacific Partnership) the rights of individuals and the legal capacity of individuals have less and less value. If you are hungry and homeless talking about self-determination as the underlying value of legal capacity is not the same as if you are wealthy; it still has value though because if the state takes away your freedom, say by locking you up in psychiatry if you don’t go to a homeless shelter, you are even worse off. We need both formal and substantive freedom, in law and in fact, as Article 22 of the Universal Declaration of Human Rights says, we need to have fulfilled the economic, social and cultural rights necessary for the free development of the personality, and we need the equal recognition before the law with full legal capacity (Article 6 of the UDHR; though it doesn’t mention legal capacity this was part of what the drafters understood).
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These points are leading me to develop the concepts of meta-autonomy and meta-equality as the basis for human rights, particularly the right to legal capacity. I have referred to the concept of meta-autonomy before, it is the point that there is an irreducible active process of witnessing and choosing that is part of what it means to be human, irrespective of any disability. As a woman (and I feel the need to specify that I am using the term woman to mean adult human female, free from any gender construct or expectations) I feel that relational autonomy is a more accurate description of how autonomy works for everyone, and that girls and women in my society are socialized to focus on relationships and forget about autonomy while boys and men are socialized in the reverse way.
I like the way that Se and Karatsu articulate a process for development of relational autonomy and propose a human right to be reared in an intimate community as a way to ensure the conditions for developing autonomy through internalizing an awareness of others’ perspectives, which he sees as expressing the value of what it means to live the good life in Japanese culture. But they use the pronoun “he” throughout and do not discuss at all gender differences between Japanese women and men. So I cannot tell from this writing if there is hierarchy or equality between the sexes; given that morality is situational and depends on one’s relationship to the other person in particular, it would only be if women collectively are exercising autonomy in their own definition of the relations between women and men, and if women individually have an equal right as men to develop and fully exercise their autonomy that the conditions would be met for all people in the society. There is also a question of what role is played by one’s own criticism of other people; if there are hierarchies that are not situational (situational being for example teacher/student or task leader/other participants) then those at the top of a hierarchy will have an inflated sense of their own value because there is less criticism of them while those at the bottom will have a squashed sense of their value, and will lack experience of holding others accountable except in a downward sense.
For these reasons I think we need to posit a meta-autonomy and meta-equality as being principles of natural law. I do not mean that they are “god-given” or that our understanding cannot continue to evolve, or that they should be imposed on anyone. It is something that I would offer from my own standpoint as a female, survivor of psychiatric atrocity, American, Jewish, lesbian, gender non-conforming, lawyer and human rights defender. Human rights is a discourse that has a purpose of doing justice and eliminating oppression. It may be part of abstract western legal tradition, and it may be too tied to a construct of the state that we need to question, but the participatory opportunities create space for this very discussion; if we are going to deconstruct the whole order what is going to replace it that will informed by what we now value, and who will decide that? It is in view of this more long-term project/process as well as our current needs that I offer meta-autonomy and meta-equality as core principles. To say “meta” here means that we do not have to adhere to traditional western constructions of the self and state – both legal fictions – but to go beyond them to what we actually value without thinking that everyone has to be the same as white non-disabled heterosexual males in order for our perspectives, our choices, our contributions and our claims and criticisms to be valid and for us to have standing in the social order. Something similar might be true of different forms of social and political organization other than states, if we want to (r)evolve beyond the western dominant historical model there as well. The dystopia of corporate rule still threatens but/and we are trying to outrun it; human rights as a participatory discourse is one method and forum where it can happen.
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