Challenges and Limits of Comparative Socio-Legal Research in a Post-National World: The Example of Adult Guardianship Law

The UN-Convention on the Rights of Persons with Disabilities (CRPD) has prompted a paradigm shift in dealing with the legal affairs of mentally impaired people. While instruments of “substitute decision-making” (guardianship, conservatorship) have been the traditional response of the law to the needs of persons deemed as incapable of handling their affairs for centuries, the treaty favors concepts of “supported decision-making”. Following a human rights perspective and a predominantly “social” model of disability, the CRPD seeks to normatively guarantee the legal capacity to act even to people with the most severe cognitive or mental impairments. This ambitious goal can undoubtedly be viewed as a “future we want”. Nevertheless, despite its origins in transnational discourses, the CRPD's practical implementation is confronted with a whole gamut of different national legal traditions. What is more, many welfare capitalist states have witnessed a historically unparalleled rise of the demand for adult guardianship in recent years. Whereas this is commonly attributed to demographic changes leading to more incidences of dementia, it will be argued that this explanation has some serious theoretical and empirical shortcomings. However, understanding the “history of the present” is critical for building a desirable future. The proposed presentation asks whether it is possible to identify determinants of the increased prevalence of substitute decision-making measures beyond the scope of individual national jurisdictions. It presents selected findings from a multivariate quantitative study in which Swiss and Austrian data were merged into a single dataset. It can be shown that the application of guardianship law is highly dependent on local legal cultures. Finally, the implications of these findings for the possibility of social change through international law are discussed.