Vulnerable Capacity. Notes on a Quiet Legal Revolution

Abstract

The vulnerability turn has contributed to the concept of vulnerability becoming an established part of the legal lexicon. By adopting a legal-philosophical perspective, this paper will explore what might be considered the most interesting theoretical outcome of the vulnerability paradigm: the concept of universal legal capacity, enshrined in Article 12 of the Convention on the Rights of Persons with Disabilities. The reasoning will focus on two main areas. First, the theoretical background of this reflection will be clarified, by investigating the main arguments of the current debate on vulnerability. Such a reflection will provide the necessary background to explore the relationship between autonomy and vulnerability. The second part of this paper specifically aims to analyse the content and legal implications of Article 12 CRPD. The exegesis of Article 12 will attempt to show that said Article is theoretically founded on the paradigm of vulnerability. Following that, a ‘reality test’ will give the opportunity to discuss some of the main positions that are present in the existing literature on the topic, with particular attention to the relationship between support and substitution. The expression vulnerable capacity has been used in order to emphasise the complex analysis required to adequately address the issue of capacity from a theoretical perspective. It will be argued that legal capacity can be considered vulnerable because it characterises a (universally) vulnerable subject.