7719 results in Intersentia
Informed Consent and Support for Decision-Making: A Critical Review of Legal Reforms in Latin America
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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Summary
INTRODUCTION
Persons with intellectual and cognitive disabilities (hereinafter PICDs) face significant barriers when accessing health treatment and satisfying their right to enjoy the highest possible standard of health . This is worrying to the extent that these persons also experience a greater need for such treatments and have higher mortality and morbidity rates than the rest of the population. These difficulties impact access to health promotion policies and curative health treatments, and include, for example, inadequate time allocation by health care workers, discrimination, lack of reasonable adjustments or poor accessibility to premises and health systems. These barriers also affect the ability to select health care treatment and to control how it is provided. The latter affects PICDs in a particularly acute way due to a diversity of factors, which include, on the one hand, barriers associated with their impairments, such as those that affect communication, perception or memory, and, on the other hand, barriers socially constructed in their environment, which include, among others, paternalistic attitudes, lack of support from their caregivers and lack of expertise and training of health care workers, which often leads to discrimination and mistreatment.
To the extent that historically, PICDs have been subjected to regimes of legal incapacity where they are appointed a representative to make decisions for them on property and personal matters – as is the case with interdiction and guardianship in Latin America –, health legislation has relied on these institutions to determine who should make decisions regarding their health treatment. with the emergence of the debate on the need to provide informed consent (hereinafter IC) in the second half of the 20Thcentury, which reconstructs the doctor-patient relationship in terms of individual autonomy, the question has arisen about how PICDs can authorise health treatment. The default legal response, to the extent that IC appears as a personal legal act, is that if the person is under a regime of legal incapacity, the person who must provide IC as a substitute is their legal representative.
PART I - HISTORICAL PERSPECTIVES AND THEORETICAL FRAMES
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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Legal Capacity, Vulnerability and the Idea of “Person”
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Summary
To love, to derive joy from life, to learn the wonder of being: these are, I offer, the apotheosis of a good life, one that everyone can achieve – and that, perhaps, even a philosopher can appreciate.
INTRODUCTION
The equal recognition of the legal capacity of persons with intellectual, cognitive and psychosocial disabilities is a matter whose normative relevance in the field of political and moral philosophy, as well as in that of legal doctrine, is not especially relevant. Perhaps this is due, in part, to the fact that deep-seated liberal political or moral philosophy, and the law built around it, have tended to do with out the uncomfortable presence of vulnerability and dependency and with out the capital function of interpersonal relationships in exercising individual autonomy. Thus, while these categories seem to be “relegated” to specific fields – and relatively marginal or secondary in the great scenario of legal doctrines, such as family law or labour law – private law inhabits a space of, at least, tension with them. Thus, while dogmatic debates are opened, and new regulatory frameworks are created that invigorate the relationship between private law and fundamental rights – for example, in terms of nondiscrimination, privacy or access to information – other legal institutions remain alive and unquestioned. Such is the case of legal capacity.
My impression, however, is that the study of legal capacity – especially its specific conception as developed in the United Nation Convention on the Rights of Persons with Disabilities (UNCRPD) – is not a marginal nor a “niche” legal matter. The model of equal recognition of the legal capacity of all individuals and the establishment of a support system for decision-making, including the necessary safeguards for its exercise – is not an “irrelevant case” for theories of justice or the law. It is, instead, a hard case: a case that challenges its normative and legal dogmas. As such, studying the legal capacity of persons with intellectual, cognitive or psychosocial disabilities can allow us to improve philosophy and law. Not least significantly, a better understanding of the idea of legal capacity can help us reconstruct our conception of justice and the legal institutions derived from it in a way that is relevant, also, to specific people whose human lives deserve equal respect and consideration.
Frontmatter
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Legal Capacity in Canada: An Equality Rights Analysis in Light of the Canadian Charter of Rights and Freedoms and the Convention on the Rights of Persons with Disabilities
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- By Lana Kerzner
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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Summary
INTRODUCTION
Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) has fuelled disability advocacy, law reform and community organising efforts in countries world-wide with the goal of ensuring that laws, policies and practices live up to the vision of equality in the exercise of legal capacity for people with disabilities. Article 12, paragraph 2, requires that States Parties recognise “that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. This paragraph is frequently cited by disability advocates to substantiate their claim to a right to control their own lives and to resist any attempt at interference with their decision-making, through legal avenues such as guardianship and other forms of substitute decision-making. Because of the exclusion that many people with disabilities face and the historical restrictions on their autonomy resulting in an affront to their dignity, their claim has been hard fought for, but largely unrealised in jurisdictions internationally.
Understanding what is required to achieve Article 12's ideals demands an in-depThexploration of what is meant by the enjoyment of legal capacity on an equal basis. While equality, and the related concept of discrimination, are well understood in other contexts, such as physical accessibility, it is less clear what they mean in the context of legal capacity. What characterises a legal capacity law as discriminatory? In order to effect change, we must first be able to identify the problem with sufficient precision to guide action. This chapter explores legal capacity through an equality lens, based on the equality right in the Canadian Charter of Rights and Freedoms (Charter) and the CRPD.
The experience in Canadian law is examined to demonstrate one method of undertaking an equality rights analysis. Canada is an apt jurisdiction for this case study as Canada was the lead State Party at the United Nations in the development of Article 12. As described by Julian Walker, and citing a joint paper by the Council of Canadians with Disabilities and the Canadian Association for Community Living, “Canada's strong contribution to the CRPD allowed certain Canadian values to be enshrined in international human rights law.”
Acknowledgements
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Legal Capacity, Disability and Human Rights: Introduction
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Summary
The United Nations Convention on the Rights of Persons with Disabilities (hereinafter CRPD) recognises in its Article 12 the equal right to exercise legal capacity with out discrimination based on disability. In addition, the CRPD establishes the obligation of the States parties to ensure access to the supports a person may require for decision-making. Since its adoption, there has been a growing effort by the United Nations Committee on the Rights of Persons with Disabilities, domestic human rights courts, legal and policy researchers, and activists to critically examine the laws that restrict or nullify the exercise of legal capacity based on disability. Traditionally, this effort has focused on reforming those constitutional or legal standards regulating the exercise of legal capacity: laws on interdiction and guardianship or substitution of decision-making and mental health laws.
However, a fuller examination of legal capacity reforms or transformations reveals a wide range of laws, jurisprudence and administrative regulations. Analysed jointly, these sources constitute a patchwork of provisions that regulate legal capacity in many different directions: from a particular individual decision – medical care, inheritance, matrimonial or cohabitation arrangements – to how an entire population is labelled and treated by laws and policies, for example, people with intellectual disabilities or people diagnosed with a “mental disorder.” Together, this multiplicity of norms, provisions and rules regulate the exercise of legal capacity in a wide range of settings – for example, in making health care decisions or exercising personal care decisions in a long-term care facility, in financial decisions, in contracting goods and services, in transacting in labour and housing markets, in pursuing justice – for instance, appearing before a tribunal to appeal a decision, meeting capacity requirements to be a witness or stand trial or file a complaint about the violation of one's rights, and in political participation such as exercising the right to vote. Accordingly, the processes of legal capacity reform require a comprehensive view, with attention not only to historical, social and legal contexts, but also to the vast regulatory regime in any particular jurisdiction and the array of institutional arrangements which permeate it.
Legal Capacity in China’s Mainland
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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INTRODUCTION
This chapter reviews the normative framework of legal capacity in China‘s mainland. The primary focus includes China‘s adult guardianship system in the recently adopted Civil Code and the provisions from the first national Mental health Law (MHL) that authorise detention and involuntary treatment. This chapter defines legal capacity, the equal recognition of which is central to the spirit of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention), as boThthe capacity for having rights and the capacity for exercising rights. In China, as elsewhere, legal capacity, particularly the legal capacity of persons with intellectual disabilities and psychosocial disabilities, is denied through provisions for adult guardianship and the application of involuntary admission and treatment under Chinese non-criminal law. Following the adoption of the CRPD, the normative framework governing legal capacity has been subject to law reform, through which the respect for the autonomy of persons concerned has been strengthened. The chapter will outline the key points of this normative framework, with a view to highlighting the changes brought by the law reforms. It will also raise questions about the extent to which these changes have been translated into practice.
Before proceeding to a closer examination of the law regulating the exercise of legal capacity in China's mainland, we outline the approach that gives effect to CRPD Article 12 on legal capacity in this jurisdiction. Sections that follow discuss the law reforms related to the adult guardianship system in the Civil Code and the Mental health Law respectively. We conclude with a discussion on the implementation of such law reforms.
STATUS OF THE CONVENTION AT DOMESTIC LEVEL IN CHINA's MAINLAND
It is difficult to define whether the Chinese legal system, like most domestic legal systems, follows the theory of monism or dualism; therefore, the status of international treaties in the Chinese legal system is a very complex issue. There is not an explicit rule that prescribes the status, hierarchy, or effect of Article 12 in Chinese law. Before the ratification of the CRPD, China has been a party to all the core human rights conventions except for the International Covenant on Civil and Political Rights, which has not been ratified.
Legal Capacity, Disability and Human Rights
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Article 12 of the UN Convention on the Rights of Persons with Disabilities recognises the equal right to exercise legal capacity without discrimination based on disability, and obliges state parties to ensure access to the support a person may require in exercising it. Since its adoption, there has been a growing body of work by the UN Committee on the Rights of Persons with Disabilities, domestic and human rights courts, legal and policy researchers and civil society activists critically examining laws which restrict or remove the exercise of legal capacity based on disability. Traditionally, this work has focused on constitutional and legal standards regulating the exercise of legal capacity - guardianship or substitute decision making laws and mental health laws. However, reforming legal capacity seems to be an all-encompassing enterprise, which requires deeper attention to be paid to its historical, social and legal foundations, as well as the wide array of institutions that it permeates and their internal coherence. Legal Capacity, Disability and Human Rights comprises chapters by key legal scholars and practitioners in the field of legal capacity, disability and human rights from the Americas, Europe, Asia, Oceania and Africa. The book aims to achieve three main goals to address the aforementioned issues.
PART III - LEGAL QUESTIONS, PERSISTENT CHALLENGES
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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Emerging Judicial Precedents Related to Legal Capacity in Latin American High Courts
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Summary
Al andar se hace camino
Y al volver la vista atrás
Se ve la senda que nunca
Se ha de volver a pisar.
Antonio Machado, Caminante no hay caminoINTRODUCTION
This chapter presents an overview of some precedents considered groundbreaking for the evolution of jurisprudence concerning legal capacity in Latin American courts. This text does not attempt to be an exhaustive study of jurisprudence as it pertains to legal capacity in the Latin American region; instead, it provides an initial approach to its current status by identifying the precedents considered to have set the trend in the last decade. To that end, a series of emerging central themes have been identified, making up the content and scope of international law standards on the subject, as they refer to:
– recognition of legal capacity with out discrimination due to disability;
– the guarantee of accessibility, reasonable adjustments, and support for the exercise of legal capacity;
– the right of access to justice and adoption of procedural adjustments;
– self-determination, mental capacity, and informed consent;
– the right to exercise sexual and reproductive rights;
– the right to family life.
LEGAL CAPACITY IN COURT PRECEDENTS: MAKING THE PAThAS WE WALK
The Latin American region has been undergoing a process of law reform to incorporate the standards of the United Nations Convention on the Rights of Persons with Disabilities (hereinafter UNCRPD) regarding legal capacity. The justice system is a fundamental actor in this process. It is possible to identify precedents that have been accompanying the implementation of this change, as well as others that have been driving it forward. However, there is still a long way to go towards deepening a disability perspective and a human rights-based approach to legal capacity.
RECOGNITION OF LEGAL CAPACITY with OUT DISCRIMINATION BASED ON DISABILITY
The recognition of legal capacity on an equal basis with others requires, among other things, that legal capacity be recognised and can be exercised with out discrimination on the basis of disability. On this point, the jurisprudence in the Latin American region is quite dissimilar.
A Historical Review of Legal Capacity
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STATUS AS A KEY TO THE CULTURE OF IUS COMMUNE: with OUT STATUS, THERE IS NO PERSON
The legal culture of ius commune – medieval Roman law developed into a system of rules that formed a universal common law for Western Europe – built and deployed its categories and discourses on the reading and re-reading of various passages of the Corpus Iuris Civilis, which included the Digest, the Code and the Institutions. Jurists from the 12th century onwards found in the Corpus that the words “status”, “persona”, and “homo” were used in very varied contexts, especially in Title I of the Digest and two titles of the Institutions .
In Title I of Book I of the Digest and the first of the Institutions, specific passages from the Institutions of Gaius were, to a greater or lesser extent, reproduced; these may be regarded as a decisive point of reference for the construction of a discipline of the person, before codifications in law were developed. A triple division of personal law – de jure personarum – resulted from these texts, i.e., the summa divisio: liberi aut servi, followed by a second division, sui iuris or alieni iuris, and finally quae in tutela, quae in curatela or ceteras personas, quae neutro iure tenentur. In the culture of ius commune, these passages were read, in general, with a tendency to highlight the divisions they consecrated between the people, rather than a division of the law of the people. This interpretation consolidated a central idea in that culture: the “division” of people so that a perspective was imposed that highlighted plurality.
The second title of the Institutions refers to the capitis deminutio, conceived as prioris status commutatio, a change that could happen in three different ways – tribus modis accidit. These ways enabled jurists to establish, from very early on, the basic idea according to which there were three statuses of persons: civitatis, libertatis, familiae. This was not a trilogy typical of Roman jurisprudence, but it was articulated by ius commune jurists, and enjoyed singular fortune; so much so that the exposition of the right of persons conformed to this trilogy.
Respect for the Will of the Person
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- By Wayne Martin
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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Summary
The concept of will plays a role in CRPD Article 12 in two different ways: one explicit and one implicit. The concept makes its explicit appearance in the provisions of Article 12 that address the need for safeguards. Specifically, CPRD Article 12(4) requires states parties to ensure that “measures relating to the exercise of legal capacity respect the rights, will and preferences of the person” (emphasis added). But already in this formulation we can detect the second, implicit reliance on the concept of the will. For this call to respect the will of persons with disabilities pertains specifically to measures concerning the exercise of legal capacity. As we shall find in detail below, the very idea of legal capacity itself implicates the concept of the will, as well as a broader legal doctrine of the will and practices of ascription and attestation in which that concept is embedded. In contemplating the next steps in the ongoing struggle for disability rights (and in understanding some recent setbacks in that struggle), we therefore need to come to terms with the concept of the will – not least because the legal doctrine of the will has long functioned to exclude persons with disabilities from full participation in society and full enjoyment of their rights.
My plan is as follows. I begin in Section 1 with some ancient history, examining one of the oldest recorded law reforms in Europe, together with an episode from the history of its interpretation in early modern times. In these episodes from the history of law reform we can trace the social and legal architecture of an ancient regime of legal capacity in which the concept of the will came to occupy a crucial place. I then turn in Section 2 to contemporary law in Europe and Latin America, analysing modern civil codes in order to show that and how the concept of will plays a role as a legally primitive notion. In Section 3, I consider ways in which the legal doctrine of the will structures and constrains practices of will-ascription, will-attestation and will-nullification in ways that exclude persons with significant cognitive and psychosocial disabilities from full enjoyment of legal capacity.
Evaluating the Induction of Article 12 Jurisprudence in Indian Law: Is Half a Loaf Better?
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- By Amita Dhanda
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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INTRODUCTION
All advocates for change have to battle with dilemmas on the pace and process of the change that is being demanded. Should it be gradual or radical? Is it acceptable to make concessions and carry everyone along or should an inflexible stance be adopted as every concession would only prolong the rule of the old and provide the semblance of change only? Robert Caro in his biography on Robert Moses has a telling paragraph documenting the impatience of a leading politician with idealism and the idealist's inability to compromise. Such people, the politician bemoans, “were willing to devote their lives to fighting for principle and wanted to make that fight with out compromise or surrender of any part of the ideals with which they had started it”, even if the unwillingness to compromise causes real losses to those for whose mission they battle. The paragraph made me wonder, can idealists only be categorised as inflexible impediments? Also, if change is being visualised, is it enough only to agonise on the substance of the change, or is it also important to reflect on how the change should be executed?
Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (hereinafter CRPD) has often been referred to as effecting a paradigm shiftin the legal understanding of legal capacity by recognising that all persons with disabilities possessed it and the accessing of support to exercise legal capacity in no way negated the existence of capacity. I have elsewhere recounted the ebb and flow accompanying the adoption of this article in the United Nations. Since India follows the dualist system of international law, the Convention becomes part of Indian law only after the enactment of domestic legislation. This chapter will analyse: the seven year-long process of inducting Article 12 into Indian law; the tension between the demands made by various stakeholders at different points in time and the final text adopted by the legislature.
PART II - LAW REFORM: COUNTRY AND REGIONAL PERSPECTIVES
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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A Critical Review of Legal Capacity Reforms in the African Region
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- By Dianah Msipa
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INTRODUCTION
The majority of African countries have signed and ratified the CRPD and its Optional Protocol indicating a willingness to be bound by its norms and standards. Of the 54 African countries, 48 have ratified the CRPD and 49 have ratified the Optional Protocol to the CRPD. Article 12, which is regarded as “emblematic of the paradigm shiftof the Convention”, requires States Parties to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” Notably, the CRPD recognises “universal” legal capacity for all persons with disabilities, regardless of severity and requires States Parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” The African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (the “African Disability Protocol”) also requires the recognition of legal capacity and the provision of support to exercise legal capacity.
In spite of having ratified the CRPD, many governments, including African governments, remain opposed to the idea of “universal” legal capacity for all persons with disabilities. Nonetheless, there have been sporadic legal capacity reform efforts aimed at closing this chasm by aligning domestic legislation with the CRPD. Kenya, Zambia and Southhave all taken steps to reform domestic law on legal capacity with varying levels of success. Reform efforts in these countries have taken place through the courts and through the legislature.
After ratifying the CRPD on 5 May 2008, Kenya has two bills currently before Parliament, namely the Persons with Disabilities (Amendment) Bill 2015 and the Mental health (Amendment) Bill 2018, boThof which seek to domesticate the CRPD. Zambia ratified the CRPD on 2 February 2010, and two years later, enacted the Persons with Disabilities Act 2012, which domesticates the CRPD. In 2019, Zambia also enacted the Mental health Act to which the right to legal capacity is directly relevant. Southratified the CRPD on 30 November 2007 and is instituting legal capacity reform through the Supported Decision-Making Bill.
Foreword
- Edited by Michael Bach, Institute for Research and Development on Inclusion and Society, Ontario and Toronto Metropolitan University, Nicolás Espejo-Yaksic, Exeter College, Oxford, Universiteit Leiden and University College Cork
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For more than a decade, Mexico has undergone a substantive constitutional transformation. The 2011 constitutional reform on human rights empowers judges to strengthen the protection of all fundamental rights recognised boThby the Political Constitution and the human rights norms recognised in international treaties ratified by Mexico. This transformation has included the effective protection of the constitutional rights of persons with disabilities.
The Supreme Court of Justice of Mexico has undertaken several actions to fully adopt the social model of disability, whose main tenet is the elimination of all barriers that prevent the full exercising of rights under equality of opportunities. On the one hand, this Court has consistently affirmed in its judicial precedents, the equal right of all people to exercise their legal capacity, to be assisted to this end and to be safeguarded against abuses. To fully achieve this goal, the Court has exhorted legislative authorities to adopt concrete measures to align domestic laws with Article 12 of the UN Convention on the Rights of Persons with Disabilities. On the other hand, the Court has adopted specific protocols to facilitate access to justice for people with disabilities and has designed and promoted training programmes and activities to consolidate a deeper legal awareness about this matter.
This book represents a valuable contribution to deepening our understanding of what is required to protect the equal right to legal capacity and to avoid any discrimination based on the intellectual, cognitive, and psychosocial disabilities of a person. By looking at the theoretical, historical, comparative and critical dimensions of new legal regimes for legal capacity in Latin America and the world, the Supreme Court of Mexico expects to contribute towards the global goal of making all human rights effective to all.
3 - The Lawyer as Opportunity Enabler
- Petter Gottschalk, Handelshøyskolen BI, Christopher Hamerton, University of Southampton
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- Lawyer Roles in Knowledge Work
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The lawyer in the role of enabler is concerned with protecting and defending the rights of the client as well as helping the client achieve their personal and business objectives in a potential conflict with individuals, organizations, or public authorities. The lawyer in this role tends to apply substance communication, symbolic influencing, and information selection and control. Substance is legal arguments based on statutes in laws, regulations in procedures, and former decisions in district courts, courts of appeal, and the Supreme Court. Symbols are presented artifacts to portray the client in a better light by communicating both with opposing parties as well as with the media or other suitable outlets, in terms of garnering influence in favor of the client about the relevance and justice for the client to achieve goals and objectives. Information control is concerned with the selection of information that might benefit the client and the avoidance of information that might harm them (Gottschalk, 2014).
The Norwegian law firm Thommessen is one of Norway’s leading commercial law firms with offices in Oslo, Bergen, Stavanger, and London. A total of 220 lawyers work for the firm. The following message from managing partner Sverre Tyrhaug was present on its English website (www.thommessen.no/en) on August 21, 2021:
At Thommessen, we enable our clients to achieve their objectives by understanding their challenges and opportunities.
The frequently long-term relationship as a professional opportunity enabler is emphasized by other law firms as well, such as the Swedish law firm Mannheimer Swartling in terms of being an enduring business partner (www.mannheimerswartling.se/en):
In an evolving world and a shifting business landscape, the demands and expectations of our clients and our own people also change. A continuous and proactive attitude to change is absolutely essential for us to continue being the business law firm of choice – both for clients and our employees.
Unlike client defenders, who tend to put themselves before their clients by having a low opinion of their clients, whom they assume to be guilty of the crime in question (Newman, 2012), opportunity enablers are partners with clients in the joint ventures of helping the clients realize their ambitions and reach their goals. Clients are assumed to have the right to explore and exploit opportunities as long as this is done within a legal framework.
1 - The Knowledge Worker
- Petter Gottschalk, Handelshøyskolen BI, Christopher Hamerton, University of Southampton
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Summary
As argued by Litchfield et al. (2021), knowledge workers invest heavily in developing their human capital for work in the form of knowledge in addition to skills and abilities. This demands engagement and creativity, which in turn encourages lawyers to define themselves through their work. Knowledge represents the fuel that feeds the engine of creative idea generation (Mannucci and Yong, 2018).
Knowledge is often defined as information combined with interpretation (understanding), reflection (thinking), and context (situation). Knowledge is a reducer of uncertainty and complexity or relation to predict and select actions (Mofokeng, 2021). Knowledge is a meaningful organization of information that expresses an evolving understanding of a subject and establishes a basis for judgment and the potential for action (Ntsoereng, 2021). In a hierarchy, data are at the bottom moving into information and knowledge, and finally to wisdom. Data are numbers and letters that do not make sense. Put into a reference that makes sense, data transform into information. Information refers to facts that can be understood, stored, and transferred (McIver et al., 2013). When information is combined as stated, then it becomes knowledge. Accumulation of knowledge over time in the form of learning becomes wisdom.
A simple example is the number 60 for a person. It might be the person’s weight or the person’s age. When it is determined that the person is 60 years old, then data is turned into information. Reflecting on the person’s age depending on gender, nationality, and other age-related factors, the person can be considered old or not so old. In some countries, the average life expectancy is below 60 years, while in other countries, the average life expectancy is above 60 years.
1. THE CHARACTERISTICS OF KNOWLEDGE WORK
McIver et al. (2013) distinguished four types of knowledge work practice based on underlying knowledge characteristics involved in doing the work. Knowledge work practice refers to the way in which work gets done and knowing how to do it. Knowledge work practices are the actions engaged in by lawyers as knowledge workers to accomplish the ongoing work of the firm for its clients. The four types of practice derive from the dimensions of tacitness and learnability.
11 - The Value Shop Configuration of Legal Services
- Petter Gottschalk, Handelshøyskolen BI, Christopher Hamerton, University of Southampton
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- Book:
- Lawyer Roles in Knowledge Work
- Published by:
- Intersentia
- Published online:
- 28 December 2023
- Print publication:
- 20 July 2023, pp 219-242
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- Chapter
- Export citation
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Summary
The most important business processes are often found in the law firm’s value configuration. A value configuration describes how value is created in a firm for its customers. A value configuration shows how the most important business processes function is to create value for customers. A value configuration represents the way in which a particular organization conducts business. The best-known value configuration is the value chain (Gottschalk and Khandelwal, 2003).
In the value chain, value is created through the efficient production of goods and services based on the input of a variety of resources. The firm is perceived as a series or chain of activities. Primary activities in the value chain include inbound logistics, production, outbound logistics, marketing, and service. Support activities include infrastructure, human resources, technology development, and procurement. Attention is focused on performing these activities in the chain in efficient and effective ways.
Value cannot only be created in value chains; it can also be created in two alternative value configurations: a value network and a value shop (Stabell and Fjeldstad, 1998). Value chains, networks, and shops are compared in Table 11.1. A value network is a company that creates value by connecting clients and customers that are, or want to be, dependent on each other. These companies distribute information, money, products, and services. While activities in both value chains and value shops are done sequentially, activities in value networks occur in parallel. The number and combination of customers and access points in the network are important value drivers in the value network. More customers and more connections create more value to customers. Examples of value networks include telecommunication companies, financial institutions such as banks and insurance companies, and stockbrokers. Value networks perform three activities:
1. The development of customer networks through marketing and recruitment of new customers to enable increased value for both existing customers and new customers.
2. The development of new services and improvement in existing services.
3. The development of infrastructure so that customer services can be provided more efficiently and effectively.
The current technology situation in a value network will mainly be described through the infrastructure in activity 3 in the above list, which will typically consist of information technology.