Abstract
Gerard Quinn advances the proposition that there is a ‘legal culture’, which consists of unstated values and institutional expectations that underpin legal orders and constitute a ‘morality’ which enables law to be possible. He focuses on the United Nations Convention on the Rights of Persons with Disabilities (CRPD 2006), in particular on Article 12—Equal recognition before the law, to discuss the limited power (to date) that it has had in dislodging fundamental assumptions in legal cultures concerning legal capacity. Quinn uses this example to show how changes to ideas of legal personhood and mental capacity are difficult to achieve because of ‘legal fictions’ that lie at the heart of legal systems’ legal cultures. Quinn puts forward some ways to dislodge the historical ‘legal fictions’ embedded in legal culture.
Fictions are to be found not only in the opinions of judges, but in critical treatises written by men free from any of the influences which supposedly restrain the judge and warp his expression. Even the austere science of jurisprudence has not found it possible to dispense with fiction. The influence of the fiction extends to every department of the jurist’s activities. Yet it cannot be said that this circumstance has ever caused the legal profession much embarrassment.
(Fuller 1930, p. 363)
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Notes
- 1.
Perhaps the most seminal law review article on the concept of legal culture is Friedman, L., ‘Legal Culture and Social Development,’ 4 Law & Soc’y Review 29 (1969).
- 2.
Legal fictions were long ago recognised by Sir William Blackstone in his ‘Commentaries on the Laws of England’. Lon Fuller revived an interest in the role of ‘legal fictions’ as a foundational part of legal culture in (Fuller 1930–1931).
- 3.
The apparent exception is the reform of the Peruvian Civil Code in 2018: see https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23501&LangID=E. More typical is the 2015 legislative reform in Ireland which innovates with assisted decision-making but which also preserves a reduced form of guardianship: Assisted Decision-Making (Capacity) Act 2015—available at—http://www.irishstatutebook.ie/eli/2015/act/64/enacted/en/html.
- 4.
Article 15 of the Convention for the Elimination of all forms of Discrimination against Women (CEDAW 1979)—is the closest analogue in the other UN thematic human rights treaties to Article 12 CRPD (2006).
- 5.
Full text of the various Reservations, Declarations and Understandings lodged by States Parties (RUDs) is available here: https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chapter=4&clang=_en.
- 6.
For a history of the reliance interest notion see Hudec, R., ‘Restating the Reliance Interest,’ 67 Cornell L. Rev., 704 (1981–1982).
- 7.
UN CRPD Committee General Comment 1, Equal Protection before the Law, (2014): available at https://www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx.
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Quinn, G. (2020). Legal Culture and the CRPD. In: Kakoullis, E.J., Johnson, K. (eds) Recognising Human Rights in Different Cultural Contexts. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-15-0786-1_2
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