Civil Death: Rethinking the Foundations of Legal Personhood for Persons with a Disability
![handle is hein.journals/irishjur56 and id is 290 raw text is:
CIVIL DEATH: RETHINKING THE FOUNDATIONS
OF LEGAL PERSONHOOD FOR PERSONS WITH
A DISABILITY
GERARD QUINN with ABIGAIL REKAS-ROSALBO
By marriage the husband and wife are one person in law: that is the very
being or legal existence of the woman is suspended during marriage...
[which is] for the most part intended for her protection and benefit.
Sir William Blackstone, Commentaries on the Laws of England,
Vol.1 (1765), pp.442 and 445.
...[I will argue against the exclusion] of those with severe cognitive
disabilities from moral consideration of persons, and I believe this
exclusion to be as morally repugnant as earlier exclusions based on sex,
race, and physical ability has been.
Eva Feder Kittay, At the Margins of Moral Personhood,
Vol.116, No.1, Ethics (2005) 100.
INTRODUCTION
Civil death is a hauntingly evocative phrase. It suggests the erasure of one's
legal personhood.1 As originally invoked by Blackstone it referred to the
legal status (or non-status) of women upon marriage. By operation of law,
marriage took away all the rights of a woman's personhood including the right
to hold property, to manage one's finances, to sue and to make most personal
choices. These and other rights of personhood were transferred to her husband
rendering her little more than a chattel in law. In a sense, women became
objects to be managed by others rather than full human subjects in their
own right. This evisceration of a woman's personhood was rationalised as a
form of protection-something done for her own good. It has taken over two
hundred years of piecemeal law reform to return, one by one, the full indicia
of legal personhood to married women.2 It hasn't happened at the same pace
everywhere in the world but the arc of reform is clear.
Civil death has affected-and still affects-many groups. The paradigm case
had to do with slavery imposed on people of colour.3 Prisoners, too, continue to
1. A useful history of civil death is contained in a Note, Civil Death-a New Look at An
Ancient Doctrine, 11 Wm. & Mary L. Rev. 998 (1969-1970).
2. See Frances E. Olsen, The Family and the Market: a Study of Ideology and Legal
Reform, 97:7 Harvard Law Review 1497 (1983).
3. See P. Finkelman, Slavery in the United States: Persons or Property?, Ch.6, in Alain,
J. (ed.) The Legal Understanding of Slavery from the Historical to the Contemporary,
(Oxford: Oxford University Press, 2012).
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Civil Death: Rethinking the Foundations of Legal Personhood for Persons with a Disability
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