Review of "Who Qualifies for Rights?"

By Judith Lynn Failer
Cornell University Press, 2002
Review by Stefan Sjöström, Ph.D. on Jan 24th 2003
Who Qualifies for Rights?

The moral issues concerning compulsory psychiatric care has been a topic of debate for decades. Over time, legislatures all over the world have struggled to strike a balance between values both vital and conflicting: on the one hade the integrity and autonomy of people with mental illness and on the other hand, society’s obligation to help those in need in combination with its interest to protect itself from persons perceived to be dangerous. Most of the academics engaged in this discussion have a background in sociology, law, philosophy or psychiatry. As a scholar of political science, Judith Lynn Failer provides a fresh perspective by expanding issues about patient rights into the broader context of liberal rights in general. In an original approach, she investigates legal discourse about civil commitment to backtrack underlying assumptions about “regular”, “full” rights associated with citizenship. The aim then becomes to sort out who qualifies for rights.

Drawing on liberal theory of rights, Failer starts out establishing that any restriction to a person’s rights must be motivated by an inability to fulfill the duties that are tied to the right at stake. For example, it would be unjust to deprive a person of her right to vote only because she is economically deficient, even though it would be reasonable to deprive the same person of her right to enter into a contract. Going through mental health legislation as well as legal cases in the U.S. history, Failer finds a strong pattern of continuity in legal reasoning. Although commitment standards have been constructed in various manners, she finds six “legal images” that are continuously invoked regardless of time and place: four of those images relate to the state’s duty to enforce coercion to help people in need (parens patrie power), while two images highlight the necessity to protect society from dangerous persons (police power):


The person in need

The dangerous person

The economically deficient person

The danger waiting to happen

The bad family member

The imminent danger

The sufferer


The nonsurvivor



Failer then evaluates if these legal images can justify the comprehensive infringement of rights that civil commitment constitutes. Here, she rules out four of these images as insufficient grounds for instigating detention. This should be seen as a major critique of current practice - some mentally ill citizens are unfairly incarcerated. The only legal images that could justify civil commitment are “the nonsurvivor” and “the imminent danger”. In the first case, she argues that if a person cannot survive in freedom, then the freedom that his rights seek to protect becomes meaningless. In the second case, preventive detention is justified on the grounds that a person - who has recently engaged in violent acts - has a responsibility to avoid situations where she might cause further harm. This is a productive attempt to avoid some of the ethical pitfalls in connection with the issue of preventive detention, e.g. the notorious difficulty to make reliable predictions of dangerousness. However, it seems that there remains a problem regarding how to draw the line between “the danger waiting to happen” and “the imminent danger”. Moreover, it is not perfectly clear why these categories should be treated differently: one could argue that persons who have manifested angry outbursts, violent ideations or carry diagnoses that correlate with violent behavior (“dangers waiting to happen” in Failer’s terms), are under the same duty to avoid situations where they might harm others.

As indicated in the title of the book, part of the stated purpose is to frame the discussion about rights theory in the particular context of the homeless mentally ill. Accordingly, the backbone of the empirical analysis of modern legal practice is a minute and illuminating discussion of a single example: a high profile case concerning the commitment of Joyce Brown, a woman who lived on the streets of New York. Although the analytical commitment to a single case is quite rewarding, it seems to me that the particular situation of the homeless is of minor relevance when Failer completes her theoretical arguments. There is no discussion as to why this particular case was chosen, and how the analytical devotion to it may affect her conclusions. To put this critique positively, it appears that Failer’s conclusions deserve to be generalized further than to the homeless mentally ill.

In general, one would like to see more description of sampling and reflection over methodological choices. The text leaves little room for the reader to make a critical evaluation of methodology. Even if it is not explicitly stated, the book appears to be oriented towards a U.S. audience. In my opinion, Failer’s analysis would have profited from expanding the scope: her arguments are applicable to more than one nation. At the same time, the task of developing rights theory would surely gain if international comparisons had been made - if not from using primary data from other countries, at least by drawing on knowledge from the international literature. For example, it appears highly probable that the six legal images identified by Failer should prove meaningful in an international context as well. From this reviewer’s domestic Swedish viewpoint, it is fascinating to meet the continuous referral to human rights in concrete legal arguments. In Swedish court hearings concerning compulsory psychiatric care, the notion of rights is referred to only as a rare exception. Hence, it might be fruitful to pay more attention to the particular cultural context that accounts for the devotion to the notion of rights in legal rhetorics in the United States.

As an overall impression, Failer manages to make a well-structured, original and persuasive contribution to an important political/moral discussion. The critical implications of her work invites further exploration and development of the arguments. For example: if detention is too strong an infringement of rights for a suffering person, are alternative coercive measures conceivable? And is it possible to separate matters of individual rights from the social contexts in which the suffering persons may or may not acquire the sufficient support to manage their lives? Coercive measures are frequently thought of as a last resort - but perhaps a focus on paternal rights securing that the mentally ill acquire more resourceful support from society would help avoid the very situation where detention is called for?


© 2003 Stefan Sjöström


Stefan Sjöström, PhD, is Research Fellow at the Department of Social Work, Umeå University, Sweden. His research focuses on communication and coercive interventions in the Swedish welfare system.  He is author of the book Party or patient? Discursive practices relating to coercion in psychiatric and legal settings (Boréa, 1997).


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