Incapacitazioni e disabilità nella prospettiva evolutiva del diritto costituzionale
In: Minority Reports. Cultural Disability Studies, 2019
Permalink: http://digital.casalini.it/5150986
Studies on disability fill an important gap in the legal and social science literature. Scholars, lawyers and policymakers did not focus so much on the tie between disability and the different legal patterns of debarment, adult guardianship and other legal institutions which on both an explicit ground as well as implicitly, determine deprivation of personal liberty and individual rights. The author examines the historical developments leading to three opposite strategies adopted by legal orders to face disability. First of them is the tendency to isolate and control diversity providing segregation and legal declaration of inability. After the beginning of the 20th century dealing with disability implies recalling welfare state and public protection. It emerges also by the text of article 38 of Italian Constitution. As a third pattern, UN Convention on rights of people with disability (CRDP) emphasizes self-determination as a key factor. Under the light of the Convention, a new approach develops ensuring the highest protection of any individual as a person, pushing towards the goal of fulfilling at the maximum extent single paths of social relations and even political participation. The clash between these different approaches is still very harsh in western countries and it implies a deep legal knowledge of how to dismantle all the risks of coming back to discriminating schemes.