For a few decades now, critical socio-legal scholars have been exploring law from common people’s point of view. This represents a critical turn in socio-legal scholarship, that traditionally privileged the study of the legal products of legislatures and courts, towards empirically exploring law as it is experienced and used in everyday life. Decentring formally legal phenomena, this stream of studies puts the lived experiences and perspectives of social actors at the heart of its inquiry, and has been important in investigating the ways in which regulatory frameworks work and are understood, used, resisted, or avoided by people in everyday life (Ewick and Silbey 1998, Merry 1990, Sarat 1990, Yngvesson 1988).
One of the key contributions of studies on law and everyday life is the notion of legal consciousness (Ewick and Silbey 1998). As a methodology to study the place of law in lived experience, legal consciousness allows going beyond formal definitions of law and opens up a space to explore its constructive power as well as its socially constructed nature. Studies that employ this approach show how law can influence individuals’ conduct and experiences, the choices and decisions they make in their everyday lives, and the way they make sense of their identities, relationships and situatedness (e.g., Harding, 2011). These studies have also argued that the relationship between law and subjects of its power is not one-directional but reciprocal, and that people are active participants in the construction of law and order. People’s perceptions of the law inform their attitudes and actions, which in turn influence how the law and rights work on the ground. In this way, everyday legal experiences are seen not only as constituted by the law and legal institutions, but also as constitutive of the various shapes that the law takes.
The inquiry into the place of law in everyday life of people with mental disabilities poses a series of compelling questions. What happens when the rights-bearing individual fails to fit the construction of the ‘rational’ decision-making subject? How does the law impact the lives of people with impaired capacity, and in particular, how does the Mental Capacity Act 2005 requirement of support in decision-making unfold in the context of everyday decisions that we would seldom consider ‘legal’ (like where to live, what to buy, who to see, or simply how to spend the day)? What do people with mental disabilities think about the role of law in their lives, and how do these thoughts structure their engagement with the law and demands for social justice? And finally, how can law better accommodate their needs in everyday decision-making?
In the Everyday Decisions project, we aim to shed light on some of these questions studying law’s everyday life from the perspective of both social care professionals and people with mental disabilities. By doing so, we hope to develop a better understanding of how legal regulations function in the context of everyday decision-making by people with mental disabilities and of the various perceptions and practices that circulate around their everyday interactions with the law. This kind of bottom-up approach will allow us to explore the various ways mental capacity and legal capacity are constructed and connected in the everyday lives of people with mental disabilities and the question of how to conceptualise the relationship between mental capacity and legal capacity beyond its dominant understandings in law and medicine. Ultimately, we hope that this inquiry will help us delineate potential support practices in the everyday lives of people with mental disabilities and contribute to the efforts of making the law better tuned to facilitate their decisional autonomy.
Ewick, Patricia and Silbey, Susan. 1998. The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press
Harding, Rosie. 2011. Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives. Abingdon: Routledge.
Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans. Chicago: University of Chicago Press
Sarat, Austin. 1990. “The Law Is All Over: Power, Resistance, and the Legal Consciousness of the Welfare Poor”, Yale Journal of Law and Humanities 2:343-79
Yngvesson, Barbara. 1988. “Making law at the doorway: The clerk, the court, and the construction of community in a New England town”, Law & Society Review 22(3):409-448