Book contents
- The Cambridge History of Rights
- The Cambridge History of Rights
- the cambridge history of Rights
- Copyright page
- Contents
- Contributors to Volume III
- General Introduction
- A Note on Translations
- Introduction to Volume III
- 1 Roman Law
- 2 Natural Rights
- 3 Historic Rights in Sixteenth-Century France
- 4 Common Law Rights
- 5 The Right of States to Self-Preservation
- 6 The Right of Natural Persons to Self-Preservation
- 7 Divine Right in Early Modern Political Thought
- 8 The Right to Punish
- 9 The Rights of War and Peace
- 10 The Right of Navigation
- 11 The Right to Trade, 1500–1700
- 12 The Right to Property
- 13 Fair Trials in Law
- 14 Freedom of Religion
- 15 The Right of Resistance
- 16 The Right to Political Participation and Representation
- 17 Rights and Power in Early Modern Feminism
- 18 Gender and Rights
- 19 The Rights of Women
- 20 The Rights of the Insane
- 21 The Rights of Asylum
- 22 The Rights of Peoples in Spain and Its Empire
- 23 The Rights of People in the English Empire
- 24 Rights in the Seventeenth-Century French Empire
- 25 Rights, Authority, and Autonomy
- Index
- References
20 - The Rights of the Insane
Published online by Cambridge University Press: 31 January 2026
Book contents
- The Cambridge History of Rights
- The Cambridge History of Rights
- the cambridge history of Rights
- Copyright page
- Contents
- Contributors to Volume III
- General Introduction
- A Note on Translations
- Introduction to Volume III
- 1 Roman Law
- 2 Natural Rights
- 3 Historic Rights in Sixteenth-Century France
- 4 Common Law Rights
- 5 The Right of States to Self-Preservation
- 6 The Right of Natural Persons to Self-Preservation
- 7 Divine Right in Early Modern Political Thought
- 8 The Right to Punish
- 9 The Rights of War and Peace
- 10 The Right of Navigation
- 11 The Right to Trade, 1500–1700
- 12 The Right to Property
- 13 Fair Trials in Law
- 14 Freedom of Religion
- 15 The Right of Resistance
- 16 The Right to Political Participation and Representation
- 17 Rights and Power in Early Modern Feminism
- 18 Gender and Rights
- 19 The Rights of Women
- 20 The Rights of the Insane
- 21 The Rights of Asylum
- 22 The Rights of Peoples in Spain and Its Empire
- 23 The Rights of People in the English Empire
- 24 Rights in the Seventeenth-Century French Empire
- 25 Rights, Authority, and Autonomy
- Index
- References
Summary
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.
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- The Cambridge History of Rights , pp. 533 - 557Publisher: Cambridge University PressPrint publication year: 2026
References
Further Reading
Boari, M., “Qui venit contra iura”: Il furiosus nella criminalistica dei secoli XV e XVI (Milan, Giuffrè, 1983).Google Scholar
Brett, A. S., Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton, NJ, Princeton University Press, 2011).Google Scholar
Calabritto, M., “A Case of Melancholic Humors and Dilucida Intervalla,” Intellectual History Review 18/1 (2008), 139–54.CrossRefGoogle Scholar
Colombero, C., “Un contributo alla formazione della nozione di malattia mentale: le Quaestiones medico-legales di Paolo Zacchia,” in De Bernardi, A. (ed.), Follia psychiatrica e società (Milan, Franco Angeli, 1982), pp. 319–29.Google Scholar
Fischer–Homberger, E., Medizin vor Gericht: Gerichtsmedizin von der Renaissance bis zur Aufklärung (Bern, Stuttgart, and Vienna, Hans Huber, 1983).Google Scholar
Foucault, M., History of Madness, ed. Khalfa, J., trans. J. Murphy and J. Khalfa (London, Routledge, 2006).Google Scholar
Houston, R. A., “Legal Protection of the Mentally Incapable in Early Modern Scotland,” Journal of Legal History 24/2 (2003), 165–86.CrossRefGoogle Scholar
Kuttner, S., Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX (Vatican City, Biblioteca Apostolica Vaticana, 1935).Google Scholar
Loughnan, A., Manifest Madness: Mental Incapacity in the Criminal Law (Oxford, Oxford University Press, 2012).Google Scholar
McGlynn, M., “Idiots, Lunatics and the Royal Prerogative in Early Tudor England,” The Journal of Legal History 26/1 (2005), 1–24.CrossRefGoogle Scholar
Mellyn, E. W., Mad Tuscans and Their Families: A History of Mental Disorder in Early Modern Italy (Philadelphia, PA, University of Pennsylvania Press, 2014).CrossRefGoogle Scholar
Pickett, R. C., Mental Affliction and Church Law: An Historical Synopsis of Roman and Ecclesiastical Law and a Canonical Commentary (Ottawa, ON, University of Ottawa Press, 1952).Google Scholar
Turner, W. J., and Butler, S. M. (eds.), Medicine and the Law in the Middle Ages (Leiden, Brill, 2014).CrossRefGoogle Scholar
Walker, N., Crime and Insanity in England, 2 vols. (Edinburgh, Edinburgh University Press, 1967–73).Google Scholar
Woodward, J., and Jütte, R. (eds.), Coping with Sickness: Medicine, Law and Human Rights – Historical Perspectives (Sheffield, European Association for the History of Medicine and Health, 2000).Google Scholar
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