This week, thinking about the rise of what Habermas calls ‘juridification’, the expansion of law and legal machinery into formally unregulated social matters. In mental health law, we call this ‘legalism’ – and in some ways the Mental Capacity Act 2005 was supposed to be non-legalistic (‘informal’) and offer a lightweight legal framework for regulating paternalistic interferences in health and social care (through the ‘general defence’).
What we’ve seen in recent years is the retraction of the ‘general defence’ and the growth of various formal legal processes being invoked to offer safeguards to protect people’s rights in health and social care. The most obvious example of this, of course, is the deprivation of liberty safeguards and the Cheshire West case, but there have also been a string of cases which are about when disputes or certain issues need to go to court.
The circumstances in which court authorisation is now regarded as required by the Court of Protection have expanded quite significantly since the MCA was passed and the Codes were written. These are examples of the ‘juridification’ of health and social care and even, to some extent, the domestic sphere. One of the problems with ‘juridification’ is that it assumes a class of citizens willing and able to assert their rights, which is hugely problematic in the context of the MCA and health and social care. For this reason, the domestic and European courts have developed a case law about the compensatory safeguards that are required to ensure that juridification is meaningful and not merely on paper (although whether these work is doubtful, and the value of juridifcation is certainly open to question). This is presumably what Habermas (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy Cambridge, MA: MIT Press), meant when he wrote:
In the area of private law, we find a number of proposals for escaping welfare-state paternalism. One line of thought directs attention to the actionability of rights. This approach starts with the observation that materialized law, because of its complex references to typical social situations, requires conflicting parties to have a high level of competence. Rights can become socially effective only to the extent that the affected parties are sufficiently informed and capable of actualizing, in the relevant cases, the legal protection guaranteed by the basic right of due process. The competence to mobilize the law already depends in general on formal education, social background, and other variables (such as gender, age , previous courtroom experience, and the kind of social relationship affected by the conflict) . But the access barriers are even higher for utilizing materialized law, which requires laypersons to dissect their everyday problems (regarding work, leisure and consumption, housing, illness, etc.) into highly specialized legal constructions that are abstractly related to real-life contexts. This makes it reasonable to require a compensatory approach to legal protection, which strengthens the vulnerable clients’ legal knowledge, their capacity to perceive and articulate problems, their readiness for conflict, and in general their ability to assert themselves. In addition to conventional measures, such as forms of legal insurance and legal aid, the countervailing power of social interests can be promoted by developing collective modes of implementing law. Naturally, class-action suits or community complaints, as well as the creation of ombudspersons, arbitration boards, and such, will counteract the disempowerment of overburdened clients only if collective legal protection, besides relieving the strain on individuals through competent representation, also involves them in the organized perception, articulation, and assertion of their own interests.
Interestingly, and unsually (in my view) for a political theorist, Habermas did not stop at the recognition that getting to court could be half the problem, but recognising that what happens once you’re in court is really important to counteract the very ‘loss of voice’ that the legal framework was supposed to safeguard against:
If the above proposals are not to further exacerbate the loss of voice in the welfare state, then affected citizens must experience the organization of legal protection as a political process, and they themselves must be able to take part in the construction of countervailing power and the articulation of social interests. Participation in legal procedures could then be interpreted as collaboration in the process of realizing rights, thus linking positive legal status with the status of ac tive citizenship. Paul Haberle has extended this democratic-process view of participation to the realization of social entitlements in general. He sets his hopes on the elaboration of a “status activus processualis” (active procedural status ). Even if one should not overburden and misuse procedural law as an ersatz theory of democracy, this proposal for correcting Georg Jellinek’s venerable status theory (Statuslehre) at least reminds us of the internal relation between private and public autonomy. p410-11