_Mind and Reason in Capacity Law_

This book offers a new theory of mental capacity in law. The problem the theory addresses is capacity law’s disarray. Today, judges lack the conceptual resources that are necessary for being able to say what counts as capacity, and leading academics openly wonder whether capacity law is even law given the looseness of existing principles for addressing its central questions. Against that backdrop, this book advances three main lines of argument. Part I argues that the problems of capacity law stem from conceptual and legal frameworks that drastically underdetermine their subject matter: though we have statutes that give us lists of conditions for incapacity, we lack principled ways to link mental and behavioural phenomena to those conditions. That is a problem both for the individual whose capacity is in question and for courts whose rule of law duties include giving principled reasons for their decisions. To address these problems, Part II presents what will be called the two-part theory of capacity. The first half of that theory advances the view that capacity is best understood as a cognitive state in which one’s deliberative processes minimally conform to certain norms of rationality. The second half of the theory adds to this picture by arguing that capacity depends on our belief formation system functioning as it should from a naturalistic point of view. Part III takes the two-part theory of capacity and applies it to a number of actual and theoretical hard cases in the law. What emerges from these applications is a restatement of the law of capacity that resolves the conceptual and practical inadequacies of the prevailing framework identified in Part I.