Suchergebnisse

Abstract
The right to legal capacity (Article 12) is the most contested realization of the UN Convention on the Rights of Persons with Disabilities (CRPD). If implemented, it would revolutionize the position of persons with psychosocial disabilities, intellectual disabilities and other cognitive conditions. Yet its implementation has been hindered by conceptual misunderstandings and a lack of distinction between the key questions in the debate. This contribution first demonstrates that advocates and opponents apply 'substitute decision-making' and 'legal capacity' differently, leading to different expectations. Second, it substantiates that once all the concepts are understood correctly, three distinct questions underpin the interpretation of Article 12 CRPD: (1) What makes a person's will reliable? (2) What is good support? and (3) How can such a reliable will be diverged from, given other interests? Instead of giving the answers, this contribution brings consistency to the debate and proposes a pathways for a future approach to legal capacity.

This article analyses two aspects of judicial activism at the European Court of Justice. First, four German landmark cases concerning European law demonstrate the dialogical relationship between the European Union and their member states with regard to judicial activism. Here, the question of whether the interaction between the ECJ and the German Constitutional Court (das Bundesverfassungsgericht) has consequences for the amount of judicial activism arises. Second, on the basis of rulings on discrimination law and the internal market law, it is substantiated that activism is not a negative, but a normal feature of the ECJ and that rather judicial restraint constitutes an interesting deviation. Consequently, we conclude that judicial activism at the ECJ is a natural feature in a dialogical context.