1. Rights as property, or is there another way? Self-ownership or self-sovereignty?
The human rights regime has been challenged as viewing rights as a kind of property, with ownership as the ultimate right (see discussion in Robin West, Normative Jurisprudence). If this is so, then the regime has tied its own hands and made itself unable to overturn capitalism, an economic system that entails vast exploitation and abuse of human beings and the planet. But another view is possible.
Self-sovereignty, or self-determination or autonomy at the personal level (I am not now discussing the right of peoples to self-determination) is sometimes articulated as ownership of the self. Particularly when rights concern my own body, as in a right to abortion or right to suicide, I might say, ‘I own myself, the state doesn’t own me.’ This view is expressed in Wayne Ramsay’s 2017 article, which was brought to my attention by survivor of psychiatry activist Mary Maddock on Twitter.
Self-ownership suggests that we are property that we might own or another person or collective (like the state) might own. I recalled my similar discomfort or sadness to hear advocates with developmental disabilities state, ‘I am my own guardian.’ Guardianship was normative in their lives; parents of people with developmental disabilities were seeking guardianship over them when they turned eighteen, to deny their newly adult children the rights and privileges of adulthood and transition seamlessly from parental guardianship over children to the system of guardianship over adult wards.
In thinking about the rights we hold so precious in the survivor community to define our own identities and life stories, to defend ourselves from forced drugging and electroshock and from confinement in locked wards and in restraints, I think that self-sovereignty describes the right we have in relation to ourselves, and it is not one of ownership but unity of self from a legal point of view and insistence that the relationship one has to oneself is not penetrable by others without violation.
This is related to the concept of boundaries that we establish between ourselves and others, which also are commonly defined as the word suggests, in relation to a territory. I find that when I think of ‘boundaries’ that way, I find that it creates a provocation – a line in the sand that doesn’t so much say ‘you will not step over’ as, ‘I dare you to step over’ – a signal of willingness to fight, more than a signal of impenetrability. It is furthermore a boundary that I am reaching to establish, that feels like it extends beyond myself, or into myself, and that is not strong or stable. Instead, if I think of the boundary as a limit on the person’s behavior towards me, I focus on the limit itself and not the violation or potential for violation. It is a boundary that proceeds outward from my strength.
Feminists and survivors of psychiatry both need to think about these issues.
2. The right to legal capacity and theory of personhood
The right to legal capacity, which is the legal status that recognizes individuals as actors capable of creating legal effects through an exercise of personal autonomy, has come into focus in the Convention on the Rights of Persons with Disabilities as the pre-eminent right without which no other rights can be guaranteed. This is not merely a prioritization of one right over another; without legal capacity one can be tortured or arbitrarily detained with impunity as no one is obligated to pay attention to your saying ‘No!’ when a doctor or court or guardian says ‘Yes’ on your behalf to institutionalization and destructive ‘treatments’.
The focus of activists and experts working on legal capacity through CRPD has been primarily to explicate the paradigm of universal (adult) legal capacity in terms of its details (how to differentiate between substitute decision-making and support) and how it responds to problems and challenges (like the situation of coma), rather than to develop an underlying theory of personhood. When theory of personhood is addressed, it has been unsatisfying to me as a feminist and survivor of psychiatry; the focus is on human interdependence as a justification for recognizing that legal capacity can be exercised with support, which does not help to argue for recognition of equal legal capacity of persons with disabilities full stop, with a right to reject support the same as everyone else might do.
Interdependence is not satisfying to me as a feminist or as a survivor of psychiatry. In my experience, women and girls are trained to discount ourselves as the source of answers, wisdom and strength, and to look to someone else as initiator (especially sexual initiator), arbiter of decisions, and defender. Interdependence is a false promise when your own independent selfhood is denied – it becomes dependence and inequality. Psychiatry enforces this misogynistic abuse-expectation and abuse-catering pattern that is demanded of women, and trashes us to the hilt – the end result of abuse that is so totalized, reaching from family to medical authorities to the state, legitimized by civil society and neighbors, is to make us unfit for interdependence – unable to relate with others as equals due to their own prejudice and our own internalized oppression.
On the other side, many women and many survivors of psychiatry find that they are not entirely beaten down, that they find strength and knowledge in bonding with other women, other survivors, and speaking the truths that the abusers forbid. The feminist movement and the survivor movement have promoted interdependence as a value from this experience. But it is a different kind of interdependence than that invoked to justify supported decision-making in legal capacity. It is an interdependence starting with the collectivity of oppressed people finding their own voices together in resistance to those who tell us we have to depend on them. It is not an interdependence that is experienced as an unequal dependence in which we strive for mutuality but are doomed to fail.
Ethics of care has started from the point of dependence as an inevitability in human life, given that we all begin life as infants and that women, as mothers and as carers for adults in situations of vulnerability, have a standpoint from which to theorize ethics based on something other than a relationship of equals, viewed as liberal market-paradigm relations between rational autonomous individuals. Yet ethics of care can obfuscate the issue of personal autonomy and self-sovereignty as a right of individuals who are in situations of high dependence on others to meet their basic needs. If it takes the perspective of the mother and not the infant, the carer and not the one who is relying on care, it is skewed and is morally lopsided. I would like to leave aside the question of infancy for now and what it means to take the perspective of an infant, but it is clear that disabled people who rely on care have their own perspectives and have articulated them – that is a large part of the disability rights movement(s).
I suspect that the notion of interdependence to justify supported decision-making derives from an adaptation to ethics of care; ‘not dependence but interdependence’ as a way of presenting the situation of people with intellectual disabilities who rely on support in exercising their legal capacity as an extension of everyday life for non-disabled people. And it is true that the best way of understanding supported decision-making is to look at one’s own life, where I have used support when making decisions, when have I supported someone else, what does that look/feel like? Yet, it begs the question of what this kind of support really amounts to, why we are presenting it as a particular thing and not simply saying, you know how we all support each other?, well the same is true for people with disabilities.
3. Self-sovereignty and impenetrability of self-relation, in CRPD
Self-sovereignty as a right of personhood, including for those who rely on support to exercise their will, has been present throughout our work on legal capacity in and through the CPRD, in the insistence that every person has a will (by DPOs in the negotiations), in the requirement in Article 12.4 that all measures relating to the exercise of legal capacity ‘respect the rights, will and preferences of the person’, in the careful calibration of the obligations of support in relation to the exercise of personal autonomy (as the substantive dimension of legal capacity) in General Comment No. 1. ‘Interdependence’ has played partly a public-relations role, invoking softer caring relations and mitigating fears that people with disabilities will be left on their own and will fail. Yet GC1 is clear that support serves the individual concerned, that there is a right to refuse support, and that ultimately carers have to stand aside and respect the ‘autonomy, will and preferences’ of the person they support.
Similarly, GC1 incorporates the right to be free from forced psychiatric interventions, which it characterizes as ‘an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16)’ as well as ‘a violation of the right to equal recognition before the law [the parent right from which legal capacity is derived].’ (‘Infringement’ rather than ‘violation’ suggests that forced psychiatric interventions may not always violate those personal integrity rights, a manifestation of unnecessary caution from the CRPD Committee that has since been rectified (see General Comment No. 3 paras 32, 53 and 54; General Comment No. 6 para 56; Guidelines on Article 14 para 12; which recognize forced ‘treatment’ as a violation of Articles 15, 16 and 17).) Here and in paragraph 7, which includes ‘mental health laws that permit forced treatment’ as a substitute decision-making regime, GC1 gives effect to the right to defend oneself against physical violence that has been legitimated by positioning it as defense of the person against intolerable potential for harm or deterioration within the self that decides or acts – with the irony that the act of penetration itself, if successful, accomplishes a splitting of the self and undermining of initiative that confirms the belief (of psychiatrists, family and friends, and the person her/himself) in an unreliable and illegitimate self that cannot be trusted to act.
GC1 also soundly rejects the ‘functional’ approach to deprivation of legal capacity, found in mental capacity assessments and also in the concept of ‘unsoundness of mind’, which is both the prong of legal capacity deprivation most invoked against people with psychosocial disabilities (who are viewed as incapable of ‘discernment’) and the assumption underlying involuntary internment and involuntary ‘treatment’ in the mental health system. In its discussion of the functional approach, GC1 underscores the right to self-sovereignty as impenetrability (unknowability) of the self by other selves:
This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. [emphasis added]
4. Conclusions and directions to explore
The right to self-sovereignty as impenetrability of the relationship to oneself, a unique relation that unlike others is not a relation of conceptually or physically separate entities, should be further developed in scholarship at the intersection of mad studies, disability studies, and critical disability jurisprudence – primarily by survivors of psychiatry and those identifying as mad, ourselves – and in feminist theory and jurisprudence. (I have primarily developed the disability issues here but hope that the implications for eradication of rape, abortion rights, female autonomy/female-only space and other concerns of feminism can be extrapolated and elaborated.) It should also be developed in advocacy and in the work of the CRPD Committee and CEDAW and other relevant UN entities, to promote understanding of personhood and human rights that is based in the standpoint of oppressed people fighting for liberation and not in property ownership, which beyond personal property or use-rights that meet human needs and are sustainable for the environment amounts to exploitation and should not be protected in a human rights regime.
Self-relation, the relationship one has to oneself, is unique and particular. But it might also be an instance of relationality as a way of thinking about law and about human rights; duties to one another and how to relate to one another and to the environment in ways that promote the common good and individual flourishing, rather than the static and territorial approach to rights as marking a line in the sand that sets us up for fights, and is even designed to do so in an adversarial legal system (like the one in the USA). Comparative law and comparative philosophy are important to this project; I have written before about being inspired by indigenous law, and have encountered interesting features of civil law and parliamentary systems and other countries’ constitutions that inspire me as well; I am currently reading ‘African Philosophy as Cultural Inquiry,‘ which is opening doors about philosophy of personhood generally and from a comparative perspective.