THE LANGUAGE OF LEGAL CAPACITY: COMPARATIVE PERSPECTIVES

This thesis examines legal capacity in relation to disability and healthcare decision-making, focusing on how contemporary legal systems balance individual autonomy with the need for protection. The central question addressed is how the law can respond to situations in which a person’s decision-making abilities are limited without fully substituting that person’s will. The study first outlines the theoretical foundations of legal and mental capacity, analyzing medical, socio-political, and human rights–based paradigms, with particular attention to international and supranational sources such as the Oviedo Convention, the United Nations Convention on the Rights of Persons with Disabilities, and General Comment No. 1 of the CRPD Committee. The thesis then examines selected civil law and common law systems. In the civil law context, Italy and Spain are analyzed with reference to traditional substitution-based models and recent reforms introducing support-based mechanisms. In the common law context, England and Wales, Ireland, and the United States are considered, highlighting more flexible and decision-specific approaches to capacity assessment. Finally, the study addresses the role of legal language and terminology in shaping the concepts of capacity, autonomy, protection, and support, with particular attention to the terminological and translation challenges that arise when comparing and transferring these system-bound legal concepts across different legal traditions.