Legal Capacity

From a Substitute Decision-making Regime to a Supported Decision-making System

Abstract

Modern civil law has created an abstract image of individuals who act on the basis of reason and discard their social status. This has created a system of separation in which those who lack the capacity to make rational decisions are restricted in their legal capacity, and legal decisions are made by others in place of the individual. However, people's decision-making is supported by interdependent support relationships, and the disparity in abilities between people with and without disabilities is largely due to the disparity in interdependent support relationships. Article 12（3）of the Convention on the Rights of Persons with Disabilities calls for rectification of this disparity to support the exercise of legal capacity. It is premised on a social model of psychosocial disability., which is viewed as more personal than physical disability. The disparity in interdependent support relationships is mainly because traditional social entitlement benefits aim only to meet welfare needs. Additionally, these relationships have created a framework that brings together those with similar welfare needs and provides aggregated benefits in a special framework that is separate from other citizens（Separate Parallel Tracks）. Based on the indivisibility, interdependence, and interrelatedness of human rights, the human rights model of disability requires that social welfare rights be provided with respect to other human rights values such as autonomy, equality, and respect for diversity and difference. It calls for removing the institutional barriers caused by Separate Parallel Tracks and for benefits to be provided in a manner that simultaneously satisfies other human rights values. The development of modern contract law―which is developing ways to reincorporate consumer vulnerability and social relations into contracts ―is on continuous grounds with the way people formulate their intentions, as revealed by psychosocial disabilities. Furthermore, it shows the possibility of eliminating the Separate Parallel Tracks that bisected legal actors by legal capacity and constituting a universal contract law theory.