The Rights of the Insane

The rights of the insane, it is usually assumed, were not a prominent concern in early modern Europe, and they have rarely attracted the attention of scholars. However, the social and legal significance of mental disease in various times and places is well known, so it should be no surprise to find that the persons of the insane, and their attendant capacities, obligations and rights, were matters of substance in early modern jurisprudence. This essay shows how in this era the European legal understanding of insanity developed, and how the insane were deprived of many of their rights; but also how some of these were preserved. In the first part, I outline the conceptions of insanity, derived from Roman civil law, that were applied by jurists. We shall see that there were broadly two ways of thinking about madness in legal contexts. The first, which had wide acceptance from antiquity to the sixteenth century, treated all kinds of insanity as legally equivalent forms of irrationality.