A preliminary survey of formal concepts of disability from the Twelve Tables of Rome of the 5th century BCE to the Prerogativa Regis in English law of the late 13th century CE is presented. Firm conclusions are restricted by problems in translation and other limitations in available data. However, it appears that the concept of intellectual disability and its distinction from episodic mental illness first emerged in several subcultures of Western civilization during the height of ancient imperial Rome and during the early medieval period in Northern European and Arabic civilization.
Social constructions of disability can be specific to place and time, but their application may be so broad as to be almost universal. At the most superficial level, names can change. The terminology for what we now call intellectual disability has changed in current times once or twice in each generation. In the last 50 years, mental defect, mental deficiency, mental retardation, developmental disability, mental handicap, and mental subnormality have been used in various times and countries.
In this paper, I use many terms that are currently regarded as inappropriate but are consistent with usage in the translations of source materials (e.g., idiocy, madness). I use disability to describe any mental or physical disability; mental disability to refer to what we would now call mental illness and/or intellectual disability; mental retardation and intellectual disability to denote our current understanding of intellectual disability; cognitive disability to refer to intellectual disability and/or dementia; and mental illness or insanity to refer to psychoses.
At a deeper level, some of the attributes of our concepts may be controversial. There have been significant disagreements about some aspects of the concept of intellectual disability. For instance, does the modern concept of intellectual disability imply that it is congenital and incurable (Goodey, 2001, p. 24), or can causes occur after birth (Tredgold, 1914), and is the notion of incurability logically circular (Cantor, 1955)? Second, what about the concept of adaptive failure? Is it best to emphasize psychometric measures or adaptive behavior? Is description of characteristics of the individual adequate or should the nature of the cultural environment also be considered (Clausen, 1972)? Third, should treatment be part of the description of intellectual disability, as it was in the 1997 International Statistical Classification of Diseases (ICD-10), or should treatment remain separate from description as it is in the current American Association on Mental Retardation (AAMR) definition?
We can conclude only that the concept of intellectual disability is still very much in flux. However, the basic concept that currently defines the general condition in modern times has remained the same for the last 100 years. It has been with us at least since the British Royal Commission of the early 20th century and the subsequent conceptualization of three factors as defining characteristics: (a) arrested development of mental capacity, (b) onset during the developmental period, and (c) adaptive failure (e.g., Doll, 1917; Tredgold, 1914).
Before the last century, low intelligence (poor understanding or a defect in reasoning) tended to dominate the general concept. The origins of a hierarchical concept of intelligence may be found in the 5th century BCE in classical Greece (e.g., Goodey, 1992). In philosophies during the 16th to 18th centuries (Goodey, 1995, 2001; Stainton, 2001a), developments in psychological measurement of the early 20th century, and recent cognitive research as well as anthropological studies, authors have attempted further to define individual differences in general mental ability (Detterman, 1987; Jenkins, 1998). In other words, although a generic concept of intellectual disability has been with us across history and different cultures (Edgerton, 1968), there has been continued refinement of the concept.
One stage in the development of the concept of intellectual disabilities was its emergence from a general concept of mental illness. Neugebauer (1996) and Stainton (2001b) described the distinction between mental retardation and mental illness in the Prerogativa Regis, a document from the late 13th century during the reign of Henry III or Edward I. The relevant text of the Prerogativa Regis follows:
The King shall have the Custody of the Lands of natural Fools, taking the profits of them without Waste or Destruction, and shall find them their Necessaries, of Fee soever the Lands be holden; and after the death of such Idiots he shall render [it] to the right Heirs, so that such Idiots shall not aliene nor their Heirs shall be disinherited.
Also the King shall provide, when any, that beforetime hath had his Wit and Memory happen to fail of his Wit, as there are many [per lucida intervalla] that their lands and Tenements shall be safely kept without Waste and Destruction, and that they and their household shall live and be maintained competently with the Profits of the same, and the Residue besides their sustenance shall be kept to their Use, to be delivered unto their use when they come to the right Mind; so that such Lands and Tenements shall in no wise be aliened; and the King shall take nothing to his own Use. (George, III, 1810, p. 226)
Therefore, it appears that between classical ancient Greece and the 13th century in England, a concept of intellectual disability separated from a generic impression of mental illness. That is, the Prerogativa Regis had definite predecessors. At the same time that a general concept of mental disability emerged and became differentiated over the centuries, however, there were also clear differences in its meaning and social implications in different cultures. The writings about mental disabilities center on care of property in the Roman tradition; responsibility for injury to others in Celtic law; religious observance and appropriate response to people with disabilities in the Jewish Mishnah; and in the very early Christian tradition, God as the determiner of individual differences and prayer as a cure.
In this article, I review first the potential methodological limitations to these general conclusions. Then, I proceed to a description of the development of the concepts of mental disabilities in some of the main Christian, Jewish, and Roman religious, medical, and legal writings before and during the time of imperial Rome (i.e., from the 5th century BCE through the 6th century CE. (For earlier reviews, see Gardner, 1993; Garland, 1995). Then, I summarize developments during the early and middle Medieval period. Finally, I discuss my conclusion that the modern definition of mental retardation in Western culture seems to have emerged slowly over a period of 2 millennia, but that even in its earliest stages, there were clear differences in the cultures of the time.
Words and Sources
It is important to begin this discussion with translations of words for mental illness and intellectual or cognitive disability. Gardner (1993, p. 168) has pointed out that several Latin words are used for mental disability, for instance, furiosus, insanus, mente captus, fatuus, and demens. Though it seems apparent that furor and dementia refer, respectively, to mental illness and what we would now call cognitive disability (i.e., intellectual disability and dementia), in fact, the difference between them was not always clear. In general, mental illness and cognitive deficits, and certainly dementia and intellectual disability, were often confused during this early period (see Bonafante, 1925/1963 p. 644; Renier, 1950). Perhaps any confusion is due to lack of a clear conceptual distinction between them at the time. Another, not inconsistent, possibility is that most sources that are used today are later translations of earlier languages. It is possible that confusion of the concepts was added by translators of these early languages.
Another example is the Hebrew word shoteh, which, according to Preuss (cited in Rosner, 1978) was used in the Mishnah exclusively for imbecile (see discussion below). The word shoteh, however, is translated by modern dictionaries (e.g., Segal, 1938) as “fool, silly person, madman etc.” It is true that in some English translations of the Mishnah (e.g., Danby, 1933), there is no reference to mental disability other than imbecile, despite the fact that there are frequent references to particular physical disabilities. In other translations, the terms mentally defective and mentally deficient are used instead. The problem is that in the Mishnah, there are no other words for mental disabilities such as mental illness (e.g., meshugah) or intellectual disability (e.g., tipeish).
In her authoritative book on the early history of Jewish thinking about disabilities, Abrams (1998, pp. 139–144) defined the word shoteh as “one lacking in Da'at [cognition]” and applies it mainly to people with profound mental illness or intellectual disability. However, she also underlined the complexity of the term with other related meanings. The question, then, is whether the rabbis intended to refer only to what we would call “intellectual disability,” whether they conflated intellectual disability with mental illness, or whether they meant something quite different.
Moreover, readers should remember that this review is taken from written sources, which might or might not reflect usage in everyday life. In ancient times, not many people could read or write. So, the written word could provide only a rough picture of the understanding about disabilities in the society at large. Undoubtedly, distinctions about disabilities preceded their presence in formal laws. That is, the dates of the emergence of certain concepts in a culture probably preceded their appearance in laws and other written materials. In short, written samples are biased samples and generalization applies to this survey as it does to other historical reviews that depend on written words or on works of art. With these caveats in mind, I proceed to what must be considered a preliminary review of the early history of the concept of mental disability.
Religious Sources in the Roman Empire
The Mishnah of the late 2nd century CE was a document bringing together, interpreting, and making more explicit Jewish oral law that had developed since the collation of the Hebrew Bible in the 7th to 6th centuries BCE. With respect to young children and to people with various disabilities, the Mishnah focused on (a) various forms of religious observance, (b) the ability to value the economic worth of another person, and (c) the degree of responsibility for certain acts in everyday life.
With respect to religious observance, everyone is subject to the mitzvah (good deed) to appear before the Lord, as Lipman (1970) described,
except a deaf-mute, an imbecile, a minor, one of double sex, women, slaves, a man who is lame or blind or ill or aged, and anyone who cannot walk to Jerusalem. (p. 14)
Anyone may slaughter—and what they slaughter is kosher [ritually pure]—except a deaf-mute, an imbecile, and a minor, lest they impair what they slaughter. But if any of these slaughter while others watch them, what they slaughter is kosher. (p. 250)
Second, the term evaluation was used in the sense of estimating a person's financial status for the purposes of giving gifts to the Temple or in estimating the price they would bring if sold as a slave: “A deaf-mute, an imbecile, or a minor may have their worth or evaluation vowed by another, but they may not vow the worth or evaluation of another, since they have no understanding” (Lipman, 1970, p. 255).
Third, “It is an ill thing to knock against a deaf-mute, an imbecile, or a minor: he that wounds them is culpable, but if they wound others they are not culpable (Danby, 1933, p. 342).”
From these quotations, it is clear that several disabilities were differentiated in the late 2nd century. Although hearing and mental disability were distinguished as different from each other, their social functions sometimes overlapped. There is no clear evidence from the Mishnah itself whether mental illness was seen as different from intellectual disability; however, Abrams (1998) pointed out that such a differentiation was evident in the Tosefta, the first commentary on the Mishnah. It is also clear that although the attitude reflected in the Mishnah tended to be protective of people with disabilities, this protection sometimes excluded them from participation as full members of society.
St. Augustine of Hippo
Two ideas concerning disabilities were included in the Christian Scriptures. The first regarded disability as a natural phenomenon rather than as a punishment for sinful behavior. The second idea allowed for the possibility of cure rather than necessarily regarding illness as a life-long condition (see Berkson, 2004). Later Christian writers (e.g., Gregory, Bede) also often believed in miraculous cures (MacKinney, 1937, p. 64).
For most of its history, Rome was a pagan society. However, by the time of Constantine (4th century), Christianity began to become dominant. Perhaps the most influential Christian writer of the Roman period was St. Augustine, whose Confessions and City of God have continued to be basic contributions to the literature of Western civilization. Stainton (2004, p. 472) expressed the view that although Christian tradition is generally thought to be more humane and tolerant of people with intellectual disabilities than classical and, subsequently, modernist views, this was qualified by St. Augustine's “two cities” doctrine, which does not support a view of equality in all respects in this world for those who have intellectual disability.
In several of his writings, St. Augustine acknowledged the existence of individual differences among people and believed that these differences are inborn: For instance, in On the Predestination of Saints, he wrote “let that grace also by which, among men themselves, the handsome are made from the ill-formed, or the intelligent from the stupid … be ascribed to nature” (Oates, Vol. I, p. 787).
Nevertheless, in The City of God, St. Augustine regarded all people as having a common essential human nature:
Whoever is anywhere born a man, that is, a rational, mortal animal, no matter what the unusual appearance he presents in color, movement, sound, nor how peculiar he is in some power, part, or quality of his nature, no Christian can doubt that he springs from that one protoplasm. We can distinguish the common human nature from that which is peculiar, and therefore wonderful. (cited in Oates, Vol. II, p. 326–327)
In Chapter 32 of A Treatise on the Merits and Forgiveness of Sins, and on the Baptism of Infants, Augustine again affirmed the centrality of God in causing individual differences. He summarized the view, apparently by others, that souls that have sinned in a previous existence “are born with faculties akin to brute animals—who are … so silly as to make a show of their fatuity for the amusement of clever people, even with idiotic gestures” (Schaff, 1989, Vol. 5, p. 27). But then he went on to describe a person who threw stones at his audience when they attempted to provoke him by blaspheming the sacred name. At the end of the chapter, Augustine posed the question of how such a person must be regarded. He argued against the idea that sin produces mental disability and in favor of the idea that behavioral differences are
brought into being … in order that those who are able should understand that God's grace and the Spirit “which bloweth where it listeth” does not pass over any capacity in the sons of mercy, nor in like manner does it pass over any kind of capacity in the children of Gehenna. (Schaff, 1989, Vol. 5, pp. 27–28)
Early Christian writers, therefore, emphasized that although all people share a basic humanity, individual differences are determined by God. The writers also took the position that cures might be effected by prayer.
Medical Concepts in Imperial Rome
The thinking about disabilities in Roman society is reflected in medical and legal writings. Both medical and legal concepts had their origins in Stoic philosophy. Building on Stoic ideas, Cicero wrote on emotions in the Tusculan Disputations in the first century BCE (Appuhn, 1934, pp. 188–193; Graver, 2002, p. 6). In Part III, Cicero wrote that previous philosophers
considered that the sound health of souls consisted in a state of equable calm: they applied the term ‘unsoundness’ to the mind that was not in this state, because they thought that in a disordered soul … soundness of health was impossible. (J. King, 1971, p. 235)
He further distinguished between the Latin terms amens and demens:
V. And there was no less insight in their giving to a condition of the soul, marked by an absence of the illuminating influence of the mind, the name “mindlessness” [amens] as well as “aberration of mind” [demens]: and from this we must understand that those who gave these names to such conditions held the view which the Stoics took from Socrates, and steadily adhered to, that all unwise persons are in an “unsound” state. For the soul, which is suffering from some disease … is no more in a sound condition than the body which is diseased. It follows that wisdom is a sound condition of the soul, unwisdom on the other hand a sort of unhealthiness which is unsoundness and also aberration of the mind. (J. King, 1971, p. 235)
In differentiating between amens and demens, Cicero may have set the stage for a distinction between cognitive disabilities and insanity. This early distinction suggests that even in formal writings, such a distinction was an early development. Of course, in everyday discourse, it might have developed even earlier.
Soranus and Caelius Aurelianus
Working in the 2nd century was Soranus of Ephesus, who wrote an influential book on midwifery and gynecology. In this book, he mentioned hydrocephalus as causing difficulty in birth (Temkin, 1956, p. 179). He also provided specific criteria for a midwife to decide whether a newborn infant is worth rearing. (This was a period when exposure of infants at birth was practiced, see discussion below).
Soranus also wrote treatises on acute and chronic illnesses, which were republished probably in the 5th century by Caelius Aurelianus in a translation from Greek to Latin (Drabkin, 1950). In it, many forms of mental aberration were described, some associated with acute fevers and others not. Examples include phrenitis, apoplexy (stroke), epilepsy, and lethargy. The closest of these to mental retardation is the chronic disease he calls furore or insania (mania in Greek). Soranus (or Caelius Aurelianus) described it as an impairment of reason that is chronic and generally without fever whose onset can be sudden or gradual. It occurred more frequently in young and middle-age men, rarely in old men, and most infrequently in children and women (Drabkin, 1950, p. 537). Although Caelius Aurelianus' description of insania is perhaps closest to our modern concept of mental retardation, it is hardly recognizable as such to modern readers, thus emphasizing how different our modern concepts are from these early ones
Medical writings are also represented in the 2nd century by Galen, whose system was an important influence on the practice of medicine for at least 1500 years. With respect to disabilities, he located memory and rational thought as faculties subserved by the brain rather than the heart. In taking this position, he followed the Hippocratic writings of classical Greece.
Galen's work was much more explicit than were the writings of the Hippocratic school, and he referred to specific cases that he had seen. He also suggested specific treatments that he thought followed from a humoral theory of disorders of the brain. This humoral theory was also based on traditional ideas derived from Greek sources going back at least to the 7th century BCE. The main relatively modern compilation of Galen's writings is the publication by Kuhn (or Kuehn), a multi-volume presentation of Galen's writings in Greek and in Latin, but not in English. Fortunately for readers of English, Siegel (1976) published a translation of Galen's “On the Affected Parts,” and he also summarized Galen's ideas on psychopathology and diseases of the nervous system (Siegel, 1973).
Galen had a fairly specific idea of dementia as a loss of reasoning and of memory due to a cooling of the brain (Kuhn, 1824/1965, Volume 7, Chapter 3, p. 60; Siegel, 1973). He also mentioned hypothyroidism, as had Hippocrates. Although he did describe something like severe mental retardation (e.g., anoia) in the same context as dementia, he focused less on those individuals who had always had been disabled as compared with those who had lost their intellectual powers.
Romans generally cared for ill people and people with disabilities in their own homes (Garland, 1995, pp. 30–31). Congregate care for the poor and for general medical treatment apparently was begun by Hebrew and Christian communities during the 4th century (Scarborough, 1969, pp. 77–78). There is no indication that there were general facilities specifically for people with disabilities.
By the 5th century CE, medical thinkers had distinguished mental illness from cognitive disability, reasoning and memory were regarded as separate intellectual faculties, and hydrocephalus and hypothyroidism were recognized as syndromes. However, intellectual disability, as a general cognitive impairment originating in childhood, was not yet described in the medical literature.
The Twelve Tables
Development in Roman law paralleled medical thinking over the thousand years of Roman society. The source document for much of Roman Law is the so-called Twelve Tables of the 5th century BCE (Watson, 1975). The Twelve Tables reflects both negative and positive attitudes toward individuals with disabilities.
The Tables reinforce infanticide of newborn infants with severe malformations: “A dreadfully deformed child … [shall be] killed quickly. To a father … shall be given over a son the power of life and death” (Coleman-Norton, 1950, p. 9). Infanticide was part of a more general pattern in Rome. It was the general practice that at birth children were laid on the ground by the midwife. If the father of the house picked the child up, he was indicating that he took responsibility for the rearing of the child. If he did not, the baby was left exposed outside the door of the house where it would either die or someone picked the child up and reared it, ordinarily to become a slave who was freed in adulthood. Exposure was the fate, not only of obviously deformed children, but also of children of poor people, female babies, and in families where there were already many children. In practice, exposure of babies with disabilities was by no means universal. Moreover, exposure was limited to the neonatal period (Edwards, 1996; Pharr, 1952/1969, Title 9.1; Veyne, 1987, pp. 9–14).
The Twelve Tables also provided for older persons with mental disabilities by making them the responsibility of the male line of their family, and this practice also established the curator system:
If a person shall be insane, authority over him and his property shall belong to his male agnates [relatives in the male line] and in default of these to his male clansmen. Administration of his own goods shall be forbidden to a spendthrift. … A spendthrift, who shall be forbidden from administering his own goods shall be … under the guardianship of his male agnates. (Coleman-Norton, 1950, p. 12)
Notable in the Twelve Tables is that the forms of disability were not differentiated from each other. Also, inability to handle property responsibly was the concept that motivated a shift of responsibility for that property to others in the family through a curator system. As we shall see, this idea continued to be important in law throughout the period of this review.
The Digest of Justinian
The Digest of Justinian is an extensive codification of Roman laws in the 6th century CE during the reign of Justinian, the Roman emperor at Constantinople (Buckland, 1963; Watson, 1967, 1995/ 1998). This codification of laws drew heavily on the thought of the 2nd century teacher Gaius as well as the later distinguished jurists, Papinian, Paul, Ulpian, and Modestinus. The digest contains Roman concepts about disabilities in several practical areas, including marriage, legal representation, and stipulations (promises) in legal situations, ownership of property (including slaves), and curatorship.
In Book XXI, the Digest quotes Ulpian's 3rd century differentiation of defect (or disability) from disease:
6. If a defect in or disease of the slave be perceptible (and defects reveal themselves generally through symptoms), it may be said that the edict [of Aedile] has no place; its concern is simply to ensure that a purchaser is not deceived.
7. It is to be noted that a definition of disease as an unnatural physical condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with health of body. … Such condition may affect the whole body or only part thereof. (Tuberculosis and fever exemplify the former; blindness, even from birth, the latter.). Defect, he says, is very different from disease; stammering, for instance, is a defect rather than a disease. (Watson, 1995/1998)
Several forms of disability were mentioned in the Digest. We do not know their exact meaning for Romans because their modern translations or usage may or may not have had the same meaning. For mental disability, the words furiosus and insanus were most frequent and may have referred to any mental disability. They are translated by Watson (1985/1998) as insane or lunatic. The words demens and fatuus seem to be more specifically referring to general cognitive dysfunction but are not clearly different from each other. Mental disability, in general, could be temporary or chronic, and this became important in later law.
Other disabilities that were recognized in the Digest were sensory disorders (i.e., blindness [caecus] and deafness [surdus]; mutism [mutism], which might or might not be associated with deafness; and stammering. There were other conditions that modern psychologists do not recognize as disabilities, but which Romans regarded as generally similar to disabilities for legal purposes. These included being exceptionally disreputable (turpitudine notabilis), a wanton, impudent, or a spendthrift. In certain circumstances, a woman or a youth younger than 17 years of age was treated in a similar way to a person with physical or mental disabilities.
The Digest contains discussion of a wide range of situations for which there are legal solutions to practical problems affecting people with disabilities. For instance, although marriage was generally limited to males older than 14 years and females older than 12 years, people whose development was retarded could not marry until they reached full maturity. People with mental disability could not be betrothed or married (because consent is required). However, if the disability developed after the marriage, the union was not invalidated (Book XXIII).
Practicality was also reflected in the laws regarding who could make legal stipulations (promises). Gaius' position is shown in the following quotation, which was incorporated almost verbatim in the Justinian Digest. Note that the law applies only to specific disabilities and provides a rationale for the restriction of legal rights.
It is obvious that a person who is dumb cannot stipulate or promise. The same has been accepted of the deaf as well. The stipulator must hear the words of the promissor, and the promissor must hear the words of the stipulator. An insane person [furiosus] cannot perform any transaction because he does not know what he is doing. A child under guardianship has capacity to perform any act so long as he gets his guardian's authorisation. … But what we have said of a child is only true of one who has attained some understanding. A baby and a child barely past infancy hardly differ from the insane, in that they are too young to understand anything. (Gordon & Robinson, 1988, p. 325)
The most important context in Roman law when one considers disabilities is the assurance of property rights. People with mental illness (furiosus) or cognitive disability (demens) may not make a will. This also applies to others with hearing handicap and/or those who are mute unless they are in military service (Book XXIX). All of those groups can, however, inherit property (e.g., Book XXVIII). In the case of a person with mental disabilities, a curator may be appointed to look after his affairs (Book XXVIII). A curator acts somewhat like the tutor for a child and is appointed by an agent of the State (a governor or praetor).
One possible forerunner of the Prerogativa Regis (see above) is the law regarding profit from an inheritance: “The heir of a lunatic will hand over to the lunatic's substitute or cognate … the intervening fruits by which it is considered that the lunatic has been made richer through the agency of his curator.” (Book V)
Other important situations covered by the Digest include culpability for crimes or responsibility of slaves for helping their masters who are being attacked. For instance,
A deaf slave is counted among the helpless. A blind slave ought to gain pardon. In the same way, we except a dumb slave but only where shouting was the only form of assistance possible. There is no doubt that lunatics are excepted. (Book XXI)
By the 2nd or 3rd century CE, visual, hearing, and mental disabilities were most commonly recognized in medicine and law. Although the word furiosus was most commonly used to describe mental disabilities, sometimes the word demens and fatuus were used to differentiate cognitive disabilities. Thus, mental illness and cognitive disabilities were seen as different, but they were often treated the same when the underlying concept was disability of understanding. This does not mean that the Roman's conception of mental disability was the same as ours. Nevertheless, it may be said that it was in Rome that the beginnings of a distinction between mental illness and cognitive disability began, but that cognitive disabilities that originated in childhood or adulthood were not differentiated.
The laws were adapted for functional disability. Thus, people who were thought to be deficient in understanding were precluded from certain activities, such as stipulating or making a will. There was no such exclusion for people with vision handicaps, who could even act as magistrates. When it was thought necessary, special protection was given to people with disabilities. The most important example is the appointment of curators who cared for the affairs of the person. Thus, mostly by the 3rd century and certainly by the 6th, the Romans had adapted laws to the practical needs of individuals and the community in which they lived.
The Digest of Justinian revealed the complex concepts about disabilities that existed from the height of the development of Roman society. After the 6th century, written sources about disabilities became less common for about 400 years. Disabilities were mentioned in law and medicine only briefly and in very general terms by only a few writers.
It is believed that an organized complex society existed in Ireland from about 1000 BCE. Most laws from this early period were carried on in an oral tradition. Extensive written laws did not begin to appear until after the 3rd through 5th centuries CE, and most of the extant early Irish Law was not codified until the 7th–8th centuries. Although the influence of Christian thought was represented in Celtic laws, much of the legal system continued to represent the independent contributions of early Celtic traditional ideas. (See Kelly, 1988, for an excellent review of Celtic laws.)
There is some evidence that in Celtic society, there was an awareness of intellectual disabilities. In a scrap of early writing, a distinction was made between “a fool [druth] … a man whose reason has departed [meraibh], and … a man whom it is time to maintain” (Smith, 1932, pp. 68–71). This section also provides for fines on the perpetrator when a fool who has been injured does not receive the sick-maintenance (compensation), which was customary in such a case.
One of the earliest examples of Celtic law is said to be the “Law of Aicill” (Macauliffe, 1923), which probably was proclaimed by King Cormac Mac Art at the end of the 3rd century but was edited, supplemented, and reedited until the 8th or 9th century CE. The Law of Aicill mentions persons with blindness, deafness, and “weakness of mind” or “non-sensible persons” as well as lunacy in the contexts of prevention and restitution for injury and inheritance. For example:
Those … shall be exempt … from the liability from the offences of their kinsmen … Old people, non-sensible persons and lunatics shall also be exempt. (Macauliffe, 1923, p. 19)
It shall be determined at the age of seven years whether a person is mentally deficient or has come to the use of reason, and at the age of fourteen years it shall be determined whether any person is permanently weak-minded or possesses ordinary intelligence. If the offence of a person was paid for before it was determined whether he was weak-minded or not, then if more than the legal amount was paid, the surplus must be returned, for weak-minded persons are never liable for more than compensation.
The land of a weak-minded person shall be kept for his benefit without being divided up by his family, during the term of five successive occupants, and the division of forfeited land shall then be made of it, but if at any time even up to the end of one hundred years, a sensible person shall be descended from the weak-minded person, the land shall revert to him.
When a weak-minded person commits an offense alone and of his own, he must be given up in order to atone for his offence, or else compensation must be paid on his behalf by his family or by the person under whose care he is.
In case a sensible adult incites a weak-minded person to commit an offence, the sensible adult shall pay the compensation, and the weak-minded person shall be exempt. (p. 37)
The “Advice to Doidin” is an early 5th century document in which a parent advises his or her child not to have
a surety for you a bobre [speaking like a cow] or a buice [a man who has a mist in his head] or a boicmell [under whose neck are lumps] for their memories are not reliable. And the bobre and the boicmell and the mellach suirig [seducer of women?] and the king-fool [whose crime is on everyone who incites him] and the rindainech [whose crime is on his family] and the fool with a talent are equal. (Smith, 1932, pp. 76–77)
These quotations suggest that there was a general distinction between mental illness and intellectual disabilities in early Celtic society and that people with disabilities benefited from the general practice of sick-maintenance (care for a person one has injured). On the other hand, the subtypes of intellectual disability and antisocial behavior are not clearly understandable in modern terms. Perhaps this is because of difficulties in translation and the paucity of written records prior to the advent of Christianity (O Crionin, 1995). It may be due, however, to a real difference in conceiving of mental disabilities.
Christian writers of the 6th through 13th centuries represented both naturalistic and mystical approaches. The 6th–7th century bishop, Isidore of Seville, wrote on medical subjects from a naturalistic point of view. Building on the thought of previous writers, he differentiated dementia (demens) from intellectual disability (amens), suggesting that dementia is a temporary affliction, whereas mental retardation is permanent. He also proposed that music would help improve emotional difficulties (Sharpe, 1964). Bede, the 7th century historian of the English church, attributed cure of blindness, mutism, and sickness to prayer (Hereford, 1935, pp. 262–269; Whitelock, 1979, v.1, p. 660).
Charlemagne was also strongly influenced by Church doctrine at the time. In his “Capitularies” (proclamations) from the years 769 to 813, he said very little about disabilities per se. Blindness is mentioned only in the context of punishment. Neither communication disorders, epilepsy, nor mental disability were mentioned at all. The king noted the poor writing skills of certain monks and exhorted them to study their letters so as to improve their understanding of the scriptures. The proclamations call for the separation of people with leprosy from society, but they also call for the protection of widows and orphans and the support of beggars, who must be required to do manual labor for their alms (P. King, 1987).
By the 13th century, concepts of mental retardation were highly differentiated. The best known example is the writing of Saint Thomas Aquinas, who referred to 22 types of “fool.” His classification underlines the fact that in the Renaissance, the word fool denoted individuals whom we would not call people with intellectual disabilities; however, it also included people who act like animals in the sense that they act through passion (i.e., without reason, others whose actions are paralyzed, and still others who lack sensibility—Lauand, 2001).
In summary, these later Christian writers added to earlier representatives of the general tradition a naturalistic approach that included medical treatment and classification.
Anglo-Saxon Laws and Herbals
The earliest Anglo-Saxon kings (e.g., the 6th century king Aethelberht) provided monetary penalties for specific injuries when one person attacked another. However, mental or physical disabilities were not mentioned in Anglo-Saxon writings until the time of Alfred the Great, who reigned from 871 to about 900: “If anyone is born deaf or dumb, so that he can neither deny nor confess his wrongdoings, his father shall pay compensation for his misdeeds” (Attenborough, 1922/1963). The 10th century Anglo Saxon Leechbook provided a list of herbs for countering dementia and foolishness (Bonser, 1963, p. 263).
Thirteenth Century Welsh and Scottish Law
By the 13th century, Christian and Celtic influences had combined in Welsh Law (Pryce, 1993) having to do with galanas, payments by a family when one of its members killed a member of another family. The law excepted from this payment lepers, mutes, and the insane.
In Scottish law (Walker, Vol. I, p. 331), furiosi (generic term for mental illness) were recognized. If a furiosus killed another person, they were to be looked after by their friends because they could not be imprisoned. Furiosi also could not enter into pacts or act as arbitrators.
Arabic civilization dominated southern Europe and the Middle East during the early medieval period, and the writings of Ibn al-Gawzi (1116–1201) is a good source for a characterization of some of the ideas of Arabic cultures during that time (Zakharia, 1995). Arabic culture drew on the writings of Galen, Aristotle, and, of course, on the Quran (see Berkson, 2004).
Ibn al-Gawzi was mainly interested in the nature of intelligence and wrote books on the topic. He believed that intelligence is an intrinsic characteristic of the person. He quoted earlier writers as believing that intelligence is inborn, and from that general concept, he derived the notion that intellectual disability is congenital. Ibn al-Gawzi differentiated between idiocy and foolishness and distinguished clearly and extensively between mental retardation and mental illness (Zakharia, 1995).
Thus, by the 13th century, several sources had culminated in a general concept of intellectual disability, which, though not the modern concept, is recognizable to us. Intellectual disability was thought to be an inborn, permanent lack of understanding or reason, which was different from mental illness.
Early Medieval England
English common law, as summarized by Glanvill as late as the end of the 12th century does not mention disabilities (Hall, 1965); but beginning from the reign of Henry I (1100–1135), reports become more frequent. This was a time when the culture was becoming more secular and law schools and medical schools began replacing monasteries as centers of learning. There was an expansion of custodial care, including some small facilities that housed mainly indigent people, some of whom had severe mental and/or physical disabilities. At this time care is said to have been more humane than it was to be in later centuries (Kealey, 1981; Stainton, 2001b; Talbot, 1967).
The set of laws promulgated by Henry I (the son of William the Conqueror) at the beginning of the 12th century stipulates that “If anyone is deaf and dumb from birth, so that he cannot confess to the charges laid against him or against anyone else, his father shall pay compensation for his misdeeds” (Downer, 1972, p. 245). According to these laws, relatives should compassionately care for insane persons (Downer, 1972, p. 245). Less clear is the statement that “He who answers a fool according to his folly is like unto him” (Downer, 1972, p. 261).
Perhaps the most important source of the relevant items on mental disabilities in the Prerogativa Regis, however, is the compendium of laws prepared by Henry Bracton, who lived during the reign of Henry III. The compendium is taken primarily from English common law (Lunt, 1947, p. 163); however, many of the items about disabilities come directly from the Institutes of Justinian. Individuals with some disabilities are excepted from certain legal requirements, such as attending and participating in court cases. These individuals include those with leprosy; those who are insane or are of unsound mind; and those born deaf and dumb, but not hard of hearing (Thorne, 1977, Vol. IV, pp. 308–309). In particular, Bracton distinguished between “madmen” and “fools”:
Some may enjoy lucid intervals and others not, and dealings with them during the time they enjoy lucid intervals will be good. … They can not acquire property while they are mad, or when they are not of sound mind, because they can not consent but they retain seisin [control of property] because they cannot change the animus they had when they were of sound mind. … But what is to be said of a fool? A fool may acquire provided he has understanding in some matters. To such a curator is also given, unless indeed he expressly renounces. … But if he is a fool who cannot distinguish between tenements or between rights, he does not acquire because he does not consent. But the decision on an exception of this kind is left to the discretion of the judge. (Thorne, 1977, Vol. IV, pp. 308–309)
Thus, according to Bracton, the ability to understand is basic to the legal status of people with disabilities in acquiring property, but there is a distinction in either the duration or degree of lapse of understanding in different individuals. Therefore, in one sense, people with mental illness and with mental retardation are similar, when seen with the criterion of “understanding,” but one can also talk of a difference between the two categories of disability.
Bracton goes on to apply this basic principle to the receiving of gifts:
He who ought to take care and have custody must have the understanding to do so, for if you send a minor or an insane person … to possess on your behalf you are not in any way considered to have acquired possession through them because they have no understanding. (Thorne, 1968, Vol. 2, p. 135)
Bracton also defined who might and might not stipulate or promise. As in Roman law, he excluded those who cannot hear and/or speak unless they entered the stipulation with a nod. Likewise, a lunatic may not stipulate because he lacks understanding, and Bracton compared lunatics with infants in this respect (Thorne, 1968, Vol. II, p. 186). An important point to him was that children and madmen are not held responsible for accidents or crimes because “the absence of intention protects the one and the unkindness of fate excuses the other” (Thorne, 1968, Vol. II, p. 384).
It is not clear whether or not Henry Bracton's writings determined the distinction between insanity and idiocy in the Prerogativa Regis. However, they do suggest that such a distinction was generally available during the 13th century. Pollock and Maitland (1968) attributed the relevant items in the quotation from the Prerogativa Regis, discussed at the beginning of this paper, to the results of a conflict between the king and the lords. The story emphasized the economic motivation behind this conflict:
Among the insane our law draws a marked distinction; it separates the lunatic from the idiot or born fool. About the latter there is a curious story to be told. In Edward I's, the king claims a wardship of the lands of all natural fools, no matter of whom such lands be holden. He is morally bound to maintain the idiots out of the income of their estates, but still the right is a profitable right analogous to the lord's wardship of an infant tenant. But there is reason to believe that this is a new right, or at any rate, that there had been a struggle for it between the lords and the king. If idiocy be treated as similar to infancy, this analogy is in favor of the lords … feudal principles would give the custody … to the lord. … If we rightly read an obscure tale, Robert Walerand, a minister, justice and favorite of the king, procured this ordinance foreseeing that he must leave an idiot as an heir and desirous that his land should fall rather into the king's hand than into the hands of his lords. (Pollock & Maitland, 1968, Vol. I, p. 481)
It is, therefore, apparent that although the distinction between cognitive disability and mental illness was not always clear in law and medicine in 6th century Rome, by the 13th century in Arabic culture and English law, this distinction was repeatedly expressed. However, the modern concept of intellectual disability and its difference from dementia had not yet been developed.
When we view past civilizations, we do so through the fog of time. Changes in language, multiple translations, the social class and religious biases of those people who are our sources, and our own concepts undoubtedly create misconceptions. Therefore, the ideas that we have about Roman and early medieval perspectives about intellectual disability must be tentative and probably can never be completely valid. Moreover, most of what we know comes from formal writings in medicine, law, and religious documents, and we are much less sure about concepts in everyday life. However, it appears now that the formal concept of intellectual disability began to be differentiated from mental illness by the first century BCE in Rome. By the 2nd century CE, the concepts had begun to stabilize and were applied to practical situations in formal law.
Despite this solidifying of the basis of what have become our modern concepts, progress was by no means steady. Writings about people with disabilities in the very early medieval period were scattered after the fall of Rome and prior to the 12th century. However, at the time of the 11th to 13th century Renaissance, people with mental disabilities benefited from improved medical care and the beginnings of the formation of English law, which had its sources in ancient Rome; Celtic culture; Jewish, Christian, and Islamic traditions; and local common law. Of course, the classification of mental disabilities probability also contributed to people's exclusion and even persecution.
During the time of this review, the distinction between intellectual disability and what we would now call dementia was never clear. Instead, three dimensions defined insanity and cognitive disability: The basic concept was a lack or a loss of reason or understanding. “Understanding” ultimately became our modern concept of intelligence through its further definition in the empiricist philosophies of the 17th and 18th centuries, movements for its measurement in the late 19th and early 20th centuries, and progress in cognitive psychology in the last 50 years.
Also important in defining mental disability was the degree of chronicity. In general, mental illness was regarded as a temporary condition, whereas cognitive disability was permanent. This dimension was most important in Roman law and in the Prerogativa Regis because it determined the length of time that control of possessions was separated from an afflicted person.
Third, the age of onset was (and continues to be) important in defining intellectual disability. Presence at birth as the expression of a “natural” (i.e., inborn). condition was the consequence of ideas that were present in early Arabic sources and certainly were part of the thinking about the complex concept of “natural fools” in later Renaissance England. The modern definition is broader than this early one, having been extended upward to the onset of adulthood. The modern concept also includes adventitious causes, but this was a much later modification. Thus, as far as we can tell now, our modern basic defining characteristics of intellectual disability are different from those of Rome and the early medieval period. However, we can see their essential form in writings 1,000 to 2,500 years ago.
Finally, an important general conclusion from this review is that Roman and early medieval formal writings reflected both exclusionary and protective attitudes toward people with intellectual disabilities. It was apparently believed that people with either temporary or reduced understanding could not fulfill their religious and property obligations. In this respect, people with mental disabilities were similar to children, spendthrifts, and other irresponsible individuals.
For people who lacked understanding, curators provided protection, not only for the person himself, but also for the family's property interests. In this way, after the newborn period, those families who could afford it provided special care for a person with disabilities for whom they had obligations. In some cases, the government in the person of a governor or the king took on this responsibility.
It should be remembered, however, that all of this applies primarily to the social classes who had significant amounts of property, who could read and write, and who made the laws. We know much less about the lives of people with mental disabilities who lived with the ordinary people who constituted the majority of the population. Most authorities (e.g., Garland, 1995) have speculated that people with mental disabilities lived with their families, were slaves, or lived on the streets and that their treatment included ignoring them and exposing them to the full range of cruelty and kindness.
The Romans, therefore, attempted to resolve the relationship of society to people with severe mental disability by excluding and also protecting them. Exclusion and protection have continued as solutions until modern times. In the last century, the democratic ideal of full inclusion in society of all people has emerged. Approaching full inclusion of people with severe mental disabilities has required major modifications in society, manifested by changes in educational programs and modifications in the law. These changes have been an attempt to minimize the significance of disabilities and to adapt society to the diversity within it.
The author thanks C. Goodey, M. Miles, and L. Rose for comments on an earlier version of this manuscript. Appreciation is also extended to Daniele Aristico for translating the material of Bonafante from Italian and M. Miles, who suggested several of the articles referred to in this paper.
Author: Gershon Berkson, PhD, Professor Emeritus, Department of Psychology (MC-285), University of Illinois at Chicago, 1007 W. Harrison St., Chicago, IL 60607-7137. firstname.lastname@example.org