Mary Donnelly, ‘Changing Values and Growing Expectations: The Evolution of Capacity Law’

Legal responses to impaired capacity reflect different (and sometimes competing) values, with ongoing tension between empowerment and protection norms. These tensions are both inevitable and desirable; without them capacity law would be one-dimensional and conceptually inadequate. However, while normative underpinnings are important, concern with what law should be doing must not be allowed to distract from analysis of what law is doing. To understand this, we need to evaluate capacity law as a ‘social fact’. This article attempts to do this, drawing on aspects of systems theory to trace the evolution of capacity law and analyse the circular dynamic whereby broader societal norms impact on developments within the legal system and law in turn impacts on developments outside of the legal system. It identifies points of ‘perturbation’ between the legal system and the systems in law’s environment and argues that ongoing observation and strategic responsiveness are essential if capacity law in the future is to be able to sustain and advance the normative progress which has been made in the past.

Mary Donnelly, Changing Values and Growing Expectations: The Evolution of Capacity Law, Current Legal Problems, Volume 70, Issue 1, 1 December 2017, Pages 305–336,

First posted 2017-12-18 07:03:52

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