Legal History and History of Psychiatry
Legal History, History of Criminology and History of Psychiatry
Legal texts provide extremely interesting crystallizations of the conception of the deaf, and of the difficulty of framing their citizenship while language is considered a major form of access to citizenship rights. For the deaf to be judged, it must be proven that they understand the criminal nature of their act. How can that understanding be proven among sign language users? Does a deposition in sign language have the same validity as one in spoken words when a deaf person cannot take an oath? From the moment in the nineteenth century when the deaf were given some of the rights of the hearing, the norms of legal practice were challenged by the very existence of such citizens. The mental abilities of the deaf have undergone a process of constant redefinition in legal discourse over the centuries, in terms both of deaf people’s rights (including rights to education, marriage, inheritance, and the vote) and their responsibilities (when accused of a crime, for example). T he discipline of medical-legal expertise was developed in the nineteenth century in response to these changing definitions, with physicians expanding their range of medical categories in order to pinpoint specific types of deafness and often binding that diagnosis to mental capacity.
Sabine Arnaud analyzed the debates and challenges involved in the construction of nineteenth-century legal texts such as the Napoleonic Code. For instance, she studied constitutional law as a way of tracing state involvement in the concerns of the deaf. She also explored the activities of Ferdinand Berthier, a deaf teacher who stood up for the rights of the deaf: he sent numerous petitions to the French government and changed ideas about the capacities of the deaf by rewriting the Napoleonic Code for a deaf audience.
John Carson's project investigated how the legal and medical communities constituted and contested the concept of “unsoundness of mind” (non compos mentis) during the eighteenth and nineteenth centuries. During the first decades of the nineteenth century, an extraordinary transformation took place in Anglo-American adjudications around the issue of mental competency. Challenging strict common law standards minimizing occasions where an actor’s ability to make a will, enter into a contract, get married, or the like could be placed in question, physicians and jurists sought, often successfully, to introduce more capacious understandings of impairments that might render an individual unable to manage his or her affairs. For all the similarity in goals, however, the relations between doctors and lawyers—and more broadly between medicine and the law—were anything but easy, as each profession jealously guarded its own prerogatives and proved suspicious of expertise drawn from other quarters. At the same time, the practical necessities involved in remaking notions of, and practices around, mental deficit, diminished responsibility, weakness of mind, and a host of other conditions loosely categorized in the law as “unsoundness of mind,” often encouraged each community to cooperate as well as spar with the other. His goal was to use the newly emerging quasi-sub discipline of medical jurisprudence to examine this tangle of contradictory tendencies and motives by analyzing the very different languages of mental impairment and personal agency that evolved within the legal and medical worlds during the late eighteenth and nineteenth centuries. Central to the invetigation was a concern with the ways and degree to which the demarcations between the normal and those deemed "unsound of mind” served to constitute distinct political categories, citizens for those deemed “normal" and subjects for those judged "unsound of mind."
During her residency, Silva Chiletti focused on the emergence of the notion of nervous pregnancy (grossesse nerveuse) in French medical culture at the beginning of the nineteenth century. “Nervous pregnancy” denoted a complex of symptoms, determined by either nervous or psychological causes, that simulate pregnancy but without resulting in tangible gravidity or childbirth. While this topic became particularly relevant in the neurological discourse of the second half of nineteenth century through its close connection to the idea of hysteria, its definition and aetiology were actually established, albeit controversially, in previous decades. The debate surrounding this phenomenon involved physicians, obstetricians and medical jurists in particular, and was mainly focused on the relationship between female sexual activity and pathology: Is it necessary for a woman to have sexual intercourse in order to “conceive” with a nervous pregnancy? How do a woman’s imagination and desires influence her body? What is the interplay between these discoveries and legal or normative forces governing reproduction and sexuality?
As a Postdoctoral Fellow, Raluca Enescu focused on decisions concerning deaf people taken by the Reichsgericht (Imperial Court of Justice) in Leipzig. Her project analyzed judgments involving deaf people in civil and criminal cases in Germany between 1879 and World War I, the Court’s first period of activity. The Court was the highest civil and criminal authority in the German Empire, basing its decisions on a common Criminal Code passed in 1871 and the unified Civil Code of 1900, which contained provisions on the deaf in the areas of contractual obligations, family law, and inheritance law. The Court’s main role was to standardize legal practice within the 27 territories of the newly unified German Empire. Twelve case decisions relating to deaf people provide insights into the motives of the Court. The judges’ argumentations reveal medical, philosophical, and educational concerns, and their decisions articulate their understanding of deaf people’s legal capacity. The limitation of the role of the deaf in the judicial system shows how the law contributes to shaping society’s definitions of the citizen who is granted full legal capacity, and also allows us to examine which cultural norms interact with court cases so as to determine the legal role of the deaf.