Legal Studies 1 (38):147-163 (2018)

Authors
Tom O'Shea
University of Roehampton
Abstract
This article draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision-making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision-making capacity laws by those with psychological disabilities.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

 PhilArchive page | Upload history
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

A Republican Right to Basic Income?Philip Pettit - 2007 - Basic Income Studies 2 (2).

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Civic Republican Medical Ethics.Tom O’Shea - 2017 - Journal of Medical Ethics 43 (1):56-59.
Decision-Making Capacity and the Deprivation of Liberty Safeguards.Peter Lucas - 2011 - Philosophy, Psychiatry, and Psychology 18 (2):117-122.
A Republican Theory of Adjudication.Frank Lovett - 2015 - Res Publica 21 (1):1-18.
Mental Capacity and the Applied Phenomenology of Judgement.Wayne Martin & Ryan Hickerson - 2013 - Phenomenology and the Cognitive Sciences 12 (1):195-214.
The Paradox of the Assessment of Capacity Under the Mental Capacity Act 2005.Ajit Shah - 2011 - Philosophy, Psychiatry, and Psychology 18 (2):111-115.
Capacity, Mental Mechanisms, and Unwise Decisions.Tim Thornton - 2011 - Philosophy, Psychiatry, and Psychology 18 (2):127-132.

Analytics

Added to PP index
2018-07-03

Total views
112 ( #80,751 of 2,330,638 )

Recent downloads (6 months)
22 ( #28,095 of 2,330,638 )

How can I increase my downloads?

Downloads

My notes