Mental capacity and states of exception: revisiting disability law with Giorgio Agamben

The Convention on the Rights of Persons with Disabilities (CRPD) claims a new era of disability rights - a stance that was affirmed when CRPD General Comment 1 provided its authoritative interpretation of CRPD article 12 (Equal recognition before the law). Since the publication of General Comment 1, disagreement about the meaning and significance of article 12 has heightened, particularly in response to its claim for universal legal capacity. The notion of universal legal capacity challenges a fundamental division in the law of modern liberal states - the different treatment of individuals who are unable to participate in the law as rational independent actors. This article draws on the work of Giorgio Agamben to argue that people with disabilities are placed in a 'state of exception' where they are subject to exceptional legal regimes. In modern law entry into the state of exception, where people with mental disabilities are exposed to violence and abuse, is triggered by the determination that a person lacks 'mental capacity.' This paper argues that the CRPD offers a new approach predicated on equality and inclusion.