Guardianship folly: the misgovernment of parens patriae and the forecast of its crumbling linkage to unprotected older americans in the



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TALLY ILL, THE MENTALLY DISABLED AND THE LAW (Samuel J. Brakel & Ronald S. Rock,

eds., Univ. of Chicago Press rev. 2d ed. 1971) [hereinafter Brakel & Rock]. The revised edition by Brakel and Rock adds the quantitative and qualitative dimensions of the prob- lem and comprises a seminal work that this article examines. See id. at xiii.

  1. See Terry Carney, Civil and Social Guardianship for Intellectually Handicapped People, 8 MONASH U. L. REV. 199, 205 n.30 (1982) (citing Eyre v. Shaftsbury, 2 P. Wms. 103, 24 Eng. Rep. 659 (1722)); see also Richard Neugebauer, Treatment of the Mentally Ill in Medieval and Early Modern England: A Reappraisal, 14 J. HIST. BEHAV. SCI. 158, 159 (1978) (discussing the English Crown's late 13th through early 17th century paternal treatment of mentally disturbed incompetents).

  2. See Legal Issues in State Mental Health Care: Proposals for Change, 2 MENTAL DISABILITY L. REP. 439, 444 (1978).

  3. See TUCHMAN, supra note 6, at 5. Tuchman defines folly as policy that is counter-productive to self-interest. See id.

  4. See generally Brakel & Rock, supra note 12, at 1 n.1 (citing JOHN BIGGS, JR., THE GUILTY MIND 3–34 (1955) and ALBERT DEUTSCH, THE MENTALLY ILL IN AMERICA 1–12 (2d ed. 1949)). For example, Egypt took mentally disabled persons to the temples for treatments, which included incantations, threats, and herbs and oils administered by priest-physicians. See id.

  5. See id.


ments, such as crushing the body or removing skull sections to re- lease the evil spirit.18 Greece was instrumental in dispelling the supernatural theory and recognizing mental disability as a natural phenomena.19

Advocates of the medical theory suggested that the mentally disabled deserved a comfortable, clean and well-lighted confine- ment.20 However, attempts at a humane legal approach proved un- successful. Although the view of mental disability slowly trans- formed from a religious one to one recognized as a medical problem, guardianship remained a vehicle to control assets and finances.21

Throughout the Athenian age, guardianship's misgovernment embraced famous, infamous, and common citizens equally.22 Sophocles' incompetency inquisition is only one example. Seemingly unable to manage his affairs, Sophocles faced his son in court.23 The






  1. See id.

  2. See id. Hippocrates (460–370 B.C.), the father of medicine and subsequent Greek physicians and philosophers, attempted medically-based classification of mental disabilities. See id.

  3. See Brakel & Rock, supra note 12, at 1.

  4. See id.; see also RICHARD C. ALLEN ET AL., MENTAL IMPAIRMENT AND LEGAL INCOMPETENCY 3 (1968).

  5. See generally Brakel & Rock, supra note 12; EDITH HAMILTON, THE GREEK WAY (1964) (providing comprehensive information relating to Greek life).

  6. See HAMILTON, supra note 22, at 66; see also ALLEN ET AL., supra note 21, at 8. As Athens' tremendous stream of life passed away, an adult Sophocles resigned to the decline of Athens' high hopes and failure of heroic endeavor. See HAMILTON, supra note 22, at 157–58. The Athenian march of folly sought to conquer all of Greece. Unfortunate- ly, Athens birthed the world's freedom only to destroy it. See id. at 158. Greece turned on the powerful and tyrannical Athens, and Sophocles lived to see Sparta at her gates. See id. Athenian life stood at death's door alongside a depressed and debilitated Sophocles. See id. at 157–58 (recounting Sophocles' old age struggle). “Gods then were men and walked upon the earth.” Id. at 158.

Acceptance is not acquiescence or resignation. To endure because there is no other way out is an attitude that has no commerce with tragedy. Acceptance is the temper of mind that says, “Thy will be done” in the sense of “Lo, I come to do thy will.” It is active, not passive. Yet it is distinct from the spirit of the fighter, with which, indeed, it has nothing in common. It accepts life, seeing clearly that thus it must be and not otherwise. “We must endure our going hence even as our coming hither.” To strive to understand the irresistible movement of events is illusory; still more so to set ourselves against what we can affect as little as the planets in their orbits. Even so, we are not mere spectators. There is nobility in the world, goodness, gentleness. Men are help- less so far as their fate is concerned, but they can ally themselves with the good, and in suffering and dying, die and suffer nobly. “Ripeness is all.”

Id. at 157. “This is the spirit of Sophocles . . . .” Id.
aged tragedian”24 presented his sole defense to his alleged incompe- tency when he stood before the jurors and read from a play he had just written.25 Exactly what he read is not known, but it could easily have been:
The long days store up many things nearer to grief than joy.

. . . Death at the last, the deliverer. Not to be born is past all prizing best.

Next best by far when one has seen the light Is to go thither swiftly whence he came.

When youth and its light carelessness are past, What woes are not without, what griefs within, Envy and faction, strife and sudden death.

And last of all, old age, despised,

Infirm, unfriended.26
Those great words did not fall on deaf ears. The case was dis- missed, the complainant fined, and the defendant allowed to depart in honor and triumph . . . .”27 It was a “literal instance of poetic jus- tice”28 noted one author who concluded that “[s]o dramatic a climax would be unique in any era of civilization.”29

If Sophocles had not convinced the jurors that he was not de- mon-possessed, the legal process would have condemned him to its Greek perversity. Although the Greek democratic misgovernment of guardianship, based on taboo and custom, was condemned as coun- ter-productive at the time, medical alternatives offered were fore- gone in favor of policies implemented by a group or by bureaucrats. Greek misgovernment of guardianship assumed a march of folly.
2. Roman Misgovernment






  1. HAMILTON, supra note 22, at 66.

  2. See id.; see also ALLEN, supra note 21, at 8.

  3. HAMILTON, supra note 22, at 158.

  4. ALLEN, supra note 21, at 8. “Judge a man who could write such poetry not competent in any way? Who that called himself Greek could do that? Nay: dismiss the case; fine the complainant; let the defendant depart honored and triumphant.” HAMIL- TON, supra note 22, at 66.

  5. ALLEN, supra note 21, at 8.

  6. Id.


Influenced by Greece, Rome's misgovernment of guardianship received more extensive treatment, and many current organized guardianship structures originated from the Roman Empire.30 This section discusses the laws of the Roman Empire, from the classical law to the law later developed through legislation, including that of Justinian.

For the purposes of this Article, the law of the Roman Empire begins with the fundamental law of the Roman XII Tables, enacted in 449 B.C.31 That comprehensive collection of rules was the first expressed legislation of the Roman state affecting private law.32 The XII Tables provide an early reference to guardianship, stating “[i]f a person is a fool, let this person and his goods be under the protection of his family or his paternal relatives, if he is not under the care of anyone.”33

As time passed, two powerful groups governed the application of the XII Table laws: the Pontiffs34 and the empowered jurists.35 The jurists developed the alieni juris concept, which considered the Ro- man citizen's power to be contractually bound.36 Women required their tutor's authority to be contractually bound.37 This consider- ation as manus and bondage of women was the initial concept of






  1. See generally Brakel & Rock, supra note 12, at 1–13.

  2. See id. at 1; see also W.W. BUCKLAND, A TEXTBOOK OF ROMAN LAW FROM AU-
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