The Will of the Deviant
Responding to Susanna L. Blumenthal, The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America, 119 Harv. L. Rev. 959 (2006)
As long as insanity remained a question of deranged intellectual faculties — delirium, delusion, insensibility, or simply being “out of one’s wits” — both the criminal and the civil law could afford to acknowledge the significance of severe mental impairment without needing to reconsider basic tenets of culpability and intentional behavior. Theatrical histrionics and verbal pandemonium not only positioned the deranged beyond the reach of responsibility, but also required no special gifts for their discovery; neighbors and relatives served perfectly well as courtroom witnesses, called to attest to the raving mania displayed by the defendant or the testator. Medical practitioners in the early to mid-nineteenth century, however, introduced novel conceptions of insanity both in print and in court, qualitatively recasting the terms of medico-legal debate from intellectual derangement to volitional anarchy. In criminal prosecutions, the task of the jury was now to distinguish intentional evil from a “lesion of the will”; in civil hearings, the jury would be asked to separate pathological delusion from florid — though permissible — eccentricity.
It is not surprising that historians of law and psychiatry have focused most of their attention on the criminal side of the law. Often involving dramatic trial narratives and vivid courtroom debate, the examination of a putative murderer’s state of mind served as the occasion for public spectacle and professional confrontation. In The Deviance of the Will, Professor Susanna Blumenthal extends the debate into the civil law, and in this insightful and provocative essay, she alerts the reader to the continuity of contentious issues regarding insanity in both civil and criminal hearings. Prominent among these was the medical effort to proffer a “clear-thinking” insanity in which the moral sentiments, not the cognitive faculties, were extravagantly and separately deranged.
119 Harv. L. Rev. F. 230 (2006) | DOWNLOAD PDF
