Respect for the Will of the Person

Ongoing law reform efforts aim to achieve inclusive recognition of legal capacity for persons living with disabilities, as required under the United Nations Convention on the Rights of Persons with Disabilities. This article focuses on the ways in which the legal concept of the will [voluntas] plays a role in defining a regime of legal capacity. Full legal capacity requires the ability to exercise legal agency in creating, modifying or terminating legal relationships. An analysis of legal history and modern civil codes demonstrates the extent to which juridical agency is conceptually dependent upon a legally fundamental but largely undefined concept of a person’s will. The result: practices of will-ascription, will-attestation and will-nullification serve to establish the boundary conditions for the recognition of legal capacity. These practices are regulated by the legal doctrine of the will and by principles of legal ethics. The current configuration of these practices serves to exclude many persons with cognitive or psycho-social disabilities. The exclusionary principles that govern those practices are deeply embedded in legal history and in the foundations of modern civil law. Two strategies for reform are distinguished and assessed.