Mental capacity and states of exception: revisiting disability law with Giorgio Agamben^*

* A brief version of this paper was delivered in the Legal Cultures of Disability Rights stream in ‘Complicities’: Law, Literature and the Humanities Association of Australasia Conference, Sydney, Australia, December 2015.

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) claims a new era of disability rights – a stance that was affirmed when CRPD General Comment 1 provided its authoritative interpretation of CRPD article 12 (Equal recognition before the law). Since the publication of General Comment 1, disagreement about the meaning and significance of article 12 has heightened, particularly in response to its claim for universal legal capacity. The notion of universal legal capacity challenges a fundamental division in the law of modern liberal states – the different treatment of individuals who are unable to participate in the law as rational independent actors. This article draws on the work of Giorgio Agamben to argue that people with disabilities are placed in a ‘state of exception’ where they are subject to exceptional legal regimes. In modern law entry into the state of exception, where people with mental disabilities are exposed to violence and abuse, is triggered by the determination that a person lacks ‘mental capacity.’ This paper argues that the CRPD offers a new approach predicated on equality and inclusion.

Acknowledgements

The author would like to thank the reviewers of this paper for their helpful comments.

Notes

* A brief version of this paper was delivered in the Legal Cultures of Disability Rights stream in ‘Complicities’: Law, Literature and the Humanities Association of Australasia Conference, Sydney, Australia, December 2015.

1. In this article the term ‘people with disabilities’ refers to individuals with impairment who are recognized under article 1 of the CRPD. The term ‘people with mental disabilities’ refers to those with intellectual or psych-social impairment.

2. Legal capacity refers to the dual ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency) (McSherry 2012).

3. Mental capacity in this sense refer to the common law concept of mental capacity summarised in article 2 of the Mental Capacity Act 2005 (England and Wales) as the ability of an individual to understand information relevant to a decision, weigh the information in order to arrive at a decision and communicate the decision.

4. Remnants of Auschwitz: The Witness and the Archive (2002); State of Exception (2003); The Kingdom and the Glory: For a Theological Genealogy of Economy and Government (2007); The Sacrament of Language: An Archaeology of the Oath (2008); Opus Dei: An Archaeology Of Duty (2013); The Highest Poverty, 2013).

5. Finding an explanation for the Nazi phenomenon is a key theme in Agamben’s work.

6. Cf. In History of Sexuality Foucault argues that sovereign power, thought of as ‘the ancient right to take life or let live was replaced by a power to foster life’ and that the power of life evolved into the two forms of anatomo-politics, or the disciplining of the economically useful human body and the and bio-politics that focused on the species body as imbued with the mechanism of life (Foucault1978, 138, 139). In his later work, Foucault describes governmentality as a complex form of modern power encompassing disciplinary and sovereign power (Foucault 2008).

7. Queensland’s new mental health laws provide an exception.