| Chapter 1 argues that the new conception and institution of the rights of persons with disabilities(PWD)to realize access to justice has promoted the frontier of human rights studies.From the perspective of equal disability rights,the conception of human rights shall include more elements to be defined as an entitlement that everyone deserves as a human person to claim rightful interest through act or not act and be capable of such action.In this context,the equal access to justice for PWD means on an equal basis with others,the PWD shall use the formal and informal justice system to seek for and obtain remedies,participate in the judicial proceedings in other ways,and realize their inherent,universal and indivisible basic rights.It has been a historical process of practice for PWD to become an equal subject in human rights law after establishing the "natural" basis of diverse human capabilities and the legitimate status of their human rights claims.The Universal Declaration of Human Rights and early core human rights treaties set out the rights to an effective remedy and fair trial,while the Convention on the Rights of Persons with Disabilities(CRPD)explicitly enacts the right of access to justice for the first time.Chapter 2 overviews the relevant practice of PWD realizing access to justice in China.The equal access to justice for PWD refers to the cross issue of judicial protection of human rights and equal protection of vulnerable groups.The judicial protection of human rights consists of fair trial and legal aid,and the equal protection of vulnerable groups means both equal treatment and special support measures for women,children,the elderly,and PWD.It primarily reveals the intersectionality of multiple identities and related risk-vulnerability.The human rights practice in China highlights the PWD’s equal status as a legal subject and sets out a solid basis for a comprehensive judicial protection framework of disability rights.Chapter 3 analyzes how the existing formalism rule of law takes into account diverse human abilities.Equal access to justice for PWD requires realistic approaches,which shall cover 5 factors:(1)comprehensive judicial institutions,2)easy-to-understand legal information;3)rights awareness and confidence of legal subjects;(4)accessible legal service;(5)accessibility and accommodation supports in all the judicial stages.Before the door of justice,PWD prepare to act for rights,they shall be recognized by their entitlements and legal capacity,know their rights through public legal education and legal service,have faith in their choice,and have access to effective dispute solution channels.In the court,the equal arm principle required by fair trial includes legal aid and sign language interpretation,but also the implementation of the accessibility,procedural accommodation,and reasonable accommodation to enhance the power of PWD as equal participants when seeking justice.Moreover,it is essential to judicially safeguard the personal liberty and safety of PWD through due process in a rule of law society.Chapter 4 points out that to realize access to justice,PWD is confronted with unique challenges of fully getting recognized for their diverse abilities when connecting the external risks and internal vulnerabilities.The efforts of the modern welfare state to establish a system to approach justice for all in the global risk society cannot yet justly cope with the disability-related risk-vulnerability.The difficulties of accessing justice caused by disability identities and vulnerabilities include(1)persons with mental or intellectual disabilities arguing they can "recognize and control their behavior";(2)persons with hearing or language disabilities to realize "effective communication";(3)persons with visual or physical disabilities to argue they should not bear "higher obligation of caution".Moreover,the intersectionality of disability and other vulnerabilities such as age and SOGI has further urged equal treatment to such individuals to cope with the risk-vulnerability,build identity among multiple groups,and enhance their capabilities in the action of remedying rights.Chapter 5 emphasizes the CRPD has innovated positive duties for state parties to fully realize access to justice for PWD.States shall take active measures to eliminate barriers at all the judicial stages,provide procedural support and enhance the capabilities of PWD to use the law and pursue justice on an equal basis with others.The active obligation such as reasonable accommodation is embedded in most CRPD articles,which genuinely treat PWD as persons with different abilities,promote just treatment,and favor responding to individual needs to their maximum.China’s government and other actors of the society have gained good experience in establishing an accessible judicial system,training staff in the system,initiating impact lawsuits by disability communities,and promoting public interest litigation on accessibility by procuratorate.Chapter 6 provides critiques of justice theories underlying the access to justice for PWD based on the above-mentioned challenges and practice.The recognition of PWD as persons with different abilities and equal members of the society makes it necessary to overcome the limits of the justice theories based on individualistic liberalism and ableism,explore reformative institutions such as procedural accommodation and support,community empowerment,and other external goods such as peer support to enhance the capabilities approach of PWD to access justice.This approach replaces the fairness of distributing basic goods in the Rawlsian theory of justice with equality of capabilities.It focuses on the conversion from basic goods to the actual function of human faculties which involves the individual body and mind,social institutions,and natural environment.This conversion of capabilities creates a resource for human diversity.Therefore,the framing of a capability theory for PWD access to justice helps redress and protect the meaningful choice of involved PWD,balance the conflicts of basic freedom,and reflect on the inequality experienced by PWD which causes the limit to capabilities and derogation of dignity.Chapter 7 further establishes a theoretical framework for combining the capability approach and substantive equality dimensions to practice human rights.Practical materialism could carry and synthesize the various conception of human nature and justice,and provide a solid starting point to explore alternative theories to bridge the gap between the ideal personality/dignity and the human rights practice when PWD claims access to justice.This new theory framework shall go beyond the capabilities approach of comprehending human rationality,will,emotion and body,and build the agency of PWD through 6 dimensions in political participation,economic redress,legal accommodation,cultural advancement,science,and technology innovation,and social change.The application potential of this theory could be tested in 2 cases.Firstly,it illustrates how to transfer judicial protection of disability rights into judicial empowerment based on human rights,of which the principles and strategies further constitute the judicial aspect of resilience rule of law.Secondly,it interprets how to make a supported autonomous decision in the judicial process for persons with severe mental or intellectual disabilities,which further shows the significance of this theoretical framework to realize equal personality and substantive freedom for PWD. |
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