Task Competency in the Rights Analytic: Mental Health and the Justification for Rights and Duties

The paper concerns the moral status of persons for the purposes of rights-holding and duty-bearing. Developing from Gewirth’s argument to the Principle of Generic Consistency (PGC) and Beyleveld et al.’s Principle of Precautionary Reasoning, I argue in favour of a capacity-based assessment of the task competencies required for choice-rights and certain duties (within the Hohfeldian analytic). Unlike other, traditional, theories of rights, I claim that precautionary reasoning as to agentic status holds the base justification for rights-holding. If this is the basis for generic legal rights, then the contingent argument must be used to explain communities of rights. Much in the same way as two ‘normal’ adult agents may not have equal rights to be an aeroplane pilot, not all adults hold the same task competencies in relation to the exercise of the generic rights to freedom derived from the PGC. In this paper, I set out to consider the rights held by children, persons suffering from mental illness and generic ‘full’ agents. In mapping the developing ‘portfolio’ of rights and duties that a person carries during their life we might better understand the legal relations of those who do not ostensibly fulfil the criteria of ‘full’ agent.

The principle of legal certainty as a principle of economic efficiency

Legal certainty, a feature of the rule of law, constitutes a requirement for the operational necessities of market interactions. But, the compatibility of the principle of legal certainty with ideals such as liberalism and free market economy must not lead to the hastened conclusion that therefore the principle of legal certainty would be compatible and tantamount to the principle of economic efficiency. We intend to analyse the efficiency rationale of an important general principle of EU law—the principle of legal certainty. In this paper, we shall assert that not only does the EU legal certainty principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such. The economic perspective of the principle of legal certainty in the European context has, so far, never been adopted. Hence, we intend to fill in this gap and propose the representation of the principle of legal certainty as a principle of economic efficiency. After having deciphered the principle of legal certainty from a law and economics perspective (1), we shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representation (2). Finally, we conclude in light of the findings of this paper (3).