Law, language and personhood: disrupting definitions of legal capacity

Abstract

ABSTRACT The negotiation of the United Nations Convention on the Rights of Persons with Disabilities and in particular Article 12 on Equal Recognition Before the Law, has given rise to new understandings, descriptions and definitions of legal personhood. Emerging international jurisprudence has focused on the point at which restrictions on the exercise of legal capacity amount to a violation of an individual’s legal personhood. With this new thinking comes a need for new terminology, but also the risk that new terms may be applied to old concepts without a full understanding of the paradigm shift required. This article will explore the symbolic power of the language governing individuals’ exercise of legal capacity, its relationship to notions of personhood and legal agency and its codification in law. In particular, it will examine the cognitive dissonance often present in domestic laws which purport to implement Article 12, which state their desire to ‘empower’ disabled people and to recognise their personhood, while simultaneously describing how individuals’ legal agency can be restricted or denied. Drawing on ideas of epistemic disruption (Yamin, 2009; Fricker, 2007), this article considers how we might reframe legislative language to better reflect the radical ideology of Article 12.