Well, this one is up my alley in more ways than one, and I thank Gwen for her penchant for difficult but necessary conversations. Accordingly, however, this taxes greatly my brevity button, and I actually do appreciate how disconcerting this can be to others, and so my apologies in advance. Now on to what is really fairly personal for me.

Once upon a time people were so selfish and self-absorbed that they would finagle the removal of a ‘difficult’ person to a mental ward, where wide variation in quality and facilities led to an embarrassing number of escapes, recidivists, psychotic episodes and general malaise. Of course the problem was with a single little word: ‘difficult’. It comes in every shape and size if only because it is so often but the projection of whatever the mind’s eye wishes to see. Some, but hardly all, of these difficult types were mentally ill, and even for those who were, their fates were as uneven as the process was capricious.

Floating far above this imaginary hell hole was an institution called Star Chamber America. Its function, which was to decide what policies or laws were good or bad (just a tiny twang of politics), was never at risk of denying gifts to good boys and girls at Christmas. It was all so simple: difficult people were by that very fact in an adverse relation both with law and those happy to get rid of them. Clearly, somebody understood the curse that adverse reliance can become, and was beholden to do something about it. What was done, however, failed in my view to reflect how law had ever intended adverse reliance to be handled in such errant cases.

The Star folks addressed all aspects of the collective problematic with a single idea: preserve the rights and dignity of those difficult, as in troubled, as in defective, as in… (don’t say this out loud…that mental stuff…else Goffman will cry ‘foul!’) incapacitated souls.

On the surface all was, and remains, decades later, purity and perfection. Just beneath the surface now lurks what everyone ought to have seen from far away – an army of untreated VERY difficult people, many with a disposition to go ballistic way beyond nail guns and hand grenades. It apparently did not dawn on the Star experts to examine the firmament beyond the star in front of their noses. You’d have off-hand thought that had they ever heard of stewardship in law school (a little doubtful except for labor lawyers) they would know that diligence has always required formulating the scenarios whereby a decision could go south, as in, to the South Pole.

Today we are in worse condition than the penguins, the ice pack on which we float melting beneath our very feet, whole chunks falling away with every mass shooting and cracks widening and inevitably isolating us further and further as thousands of destroyed families not entitled to assure treatment for a difficult relative incite the orcas below to wave hunt at will, at random. One decision of starry-eyed justices has left America saddled with what is nothing if not worse than what stirred the initial controversy. They thought only how they had saved the universe from general opportunism. There is more to adverse reliance than opportunism. There is the whole firmament of stewardship, a concept as much legal as ethical (don’t be yelling that at any law school).

At some point the story took an interesting turn when a certain difficult person sat down with the Star folks and reports having been confirmed in his thought that the Star Chamber had since learned to expect and hate these mass shootings; confirmed as well that they were nonplussed that lower court challenges were few in which a colorable argument could be had for preserving the rights of all stakeholders as opposed to preserving a privileged sub-group. Confirmed as well was the thought that the future looked bleak if only because local authorities and lawyers were so accustomed to being chilled to the bone that they simply could not want to entertain anything that did not entirely answer to the purest and plenary legal rights of the legendary army of difficult people.

Such is the time-honored recipe for cynicism, widespread disease, endemic unease, and embarrassment in the eyes of the wider world looking in (not that they have no problems of their own). Now it has come to be that the only conceivable solution requires a reprise of the legal concepts concerned. Here are the basic facts of the matter. They are actually not negotiable, for they are among the most fundamental jural principles of humankind. Makes no difference whether the culture be honor-based or dignity-based. Despite treating the honor-dignity relations differently, these two broad types share conceptions for protection of dignity, as also the rationale for punishment at an aggravated level when dignity is at risk with the committing of a crime. Rape, for example, is in many respects the very epitome of a ‘theft’ of dignity, and carries the penalties expected in a dignity-based society (honor-based folks see such matters typically through a patriarchal lens, pointing contempt at the woman, but not out of any less concern for dignity).

Thus, while the character and extent of dignity is culturally determined, the commonalities dominate (conservatives cannot complain that I tap those wily Afro/Arab-liars to defend a point). Human beings respect, as a long-standing solid jural rule, every bit as sound and universal as its golden brother, the one that governs treatment of those entering into relations in which they have no choice but to place themselves at risk of adversity consequent to their valid desire to address phenomenological needs or secure existential necessities.

The caveat: justifying legally prescribed punishment with broad common-sense generalities can occasionally result in dangerously ignoring its jural underpinning – the principle that in dis-accepting another’s dignity by engaging in crime necessarily so also is degraded the respectability of the perpetrator’s own dignity. Loss of freedom is in good theory the zero sum partner of jail and prison: disciplinary isolation answers to criminous disruption of dignity . The reason need not be solely or mainly the protection of the public but remains what is has been everywhere for all of time, namely, a source of satisfaction that a peculiar fairness has been enforced upon a circumstance in which vengeance would otherwise always ask for more punishment than impartial observers acknowledge fits the crime.

The continued respect of dignity in those convicted of crimes accounts for the legally recognized minimum provisions of confinement. But the reason why prison or even death continue to be respected over self-help or vigilante justice is out of concern for social as well as victim ‘closure’. No penalty will replace the pain at losing one’s own dignity through rape or any other serious molestation. But a zero sum respectable-dignity-for-disrespectable-dignity allows the prospect for peace and allows the legal system to function. It was to prevent the expansion of local feuds into general mayhem that central authorities terminated feuding in the first place.

When the rights of those under adverse reliance are protected absent any consideration of the prevailing context, everybody else comes under adverse reliance. Difficult people are now protected from helping themselves by permitting them to act in disrespect of their own and others’ dignity. You would have thought the starry-eyed stars of the Star Chamber would have got that much figured out. Or perhaps law schools are only concerned with a recipe book approach to law, privileging the written word over the actual law, exigency over principle.

Families and public are now treated as if they owed deference to the difficult amongst us in the form of turmoil and death. Bear in mind the nature of the only other circumstances in civilized society where a similar rationale holds: soldiers, policemen and firemen. Whereas these professionals are granted the authority to support themselves in their official adverse relations, the families of the difficult, and the public as their targets, are left exposed in a most unnatural way.

The lynchpins of this conflict revolve about the two sides of the mental illness coin, namely, that 1) the illness impairs impartial judgment and elevates every rationale for fear in regard of being seen as healed or as normal (to say nothing of stigmas), and 2) the decision to avoid medications, against adequate expert advice, constitutes the specter of an office entered absent any oath, but with protections for the powers to do wrong as well as right, and then either to use the law’s flaws to escape condign punishment upon negligence or fail utterly to enhance protection of the exposed. No society has before ever knowingly permitted such a travesty. But we have done precisely that very thing. And we are all still so cowed in guilt and fear over the Star Chamber’s decisions that we are regressed into childhood immaturity in the face of continuing social discomfiture.

In being a citizen everyone is an officer of a sort. We create or stumble upon circumstances in which our influence is necessary to effectuate what is likewise necessary, but for the same reason able to cause destruction, against the possibility of which active measures are required. It should be evident that those with dangerous or potentially dangerous conditions who reject medications that have been strongly recommended are rejecting the basis for our continuing respect of their plenary rights. The provocation is not ours, but theirs. When jurists or local authorities fail to recognize this or deliberately overlook it, they are part of a continuing problem, not a part of any solution.

It should not be blindly assumed that the Star folks are so stupid that they can’t appreciate the jural principles discussed here. Lawyers or others who refuse to take public safety into their own hands with commonsense programs that attend to everybody’s rights are insulting the Stars of law. Lesson: install a carefully crafted program, perhaps a pilot project starting with those arrested from crimes and submitted to psych evaluations. Keep track of progress, hold stakeholders accountable, and allow success to guide expansion. A successful program will NOT be cast aside by the Stars of the universe upon appeal from those in opposition.

Anyone who thinks to pretend that the present method does no one untoward legal harm does not merit a whole lot of my attention. I, after all, happen to be one of those ‘difficult’ people. I also happen to believe in my responsibilities to my community, especially mindful consequent to having ruined my family long prior to medications (not for lack of trying to obtain a correct diagnosis). I speak for the law-abiding and the responsible, with pitifully little respect for sanctimonious blindfolding on behalf of ideas that do little but leave us thinking well of ourselves while we let loose a pestilence upon our fellow citizens and rest content to go through contortions of oh so public guilt-based blood-letting -- the results of which promote solutions after the fashion of built-in obsolesce. Hell of a way to run a legal railroad, that’s what I say.

Our paralysis in the face of overwhelming disorder is not lessened by a legal profession believing that an informed public is, in Pope’s abused words, “a dangerous thing”. It is the standard cry from those in power worried that stewardship will reduce them to paupers, the same concerns that led Southern plantation owners to forbid teaching of slaves. An ignorant public is an easily controlled public, a public in adverse reliance – an adverse reliance worsened by the fact that not only the professionals but politicians have dug in their heels, protecting themselves against accountability by legitimating legalized corruption and gerrymandering districts.

Even absent the basic knowledge, and aside from iatrogenic discord, much can still be done against paralysis simply by sitting down around a table and examining the parameters without which an intelligent program of protection of everyone’s rights cannot be vouchsafed. Here, then, might be the results of such a discussion, the one aimed at determining who amongst the problem people require enforced medical maintenance (that’s EMM to those interested in sounding authoritative while informing lawyers and Congresspeople of the frank realities).

Those with prior criminous tendencies, those with unstable conditions (medications found less effective than anticipated but still essential), and those pockmarked by verifiable incidents reported by trusted observers (teachers, for example, have proven to be a stable resource), as well as all those with guns in proximity whether or not owned by the involved person -- are categories warranting enforced medication.

Those evidencing considerable responsibility can be given provisional release from enforced maintenance and random blood tests. A reasonable system will also restrict gun control enforcement to those on a ‘no fly’ list, leaving the responsibility-habituated -- on meds and doing well -- to escape the gun enforcement standards. There is, after all, a Constitutional matter to be considered, as conservatives are wont to over-remind us.

Are medications safe and effective? Well, that is, first of all, an unsatisfactory way to address the problem. The facts are that everyone responds in counter-intuitively different ways to any given drug. Any drug typically has to be tailored to the patient else by definition for that patient it was neither safe nor effective. Which means that, aside from the slippery slope of medical ignorance in nosology (principles of diagnosis), treatment is itself a crap shoot, an experimental process. Wide swaths of people are, however, known to very well tolerate a whole slew of drugs and to experience various improvements therefrom. Most also do ultimately find, working with an intelligent doctor, a satisfactory result, even if that defines what will become a successful disability claim.

As an overall, the vast majority of difficult people can be radically improved – judged by tests of friendships, relationships, employment, hygiene, and deportment. Absent these drugs no amount of talk therapy will be other than laughed at by the back of the brain mechanisms interfering with what feeds consciousness. Mental illness kills. It kills self-esteem; it kills families and friendships; it kills the potential for earning respect, repute or well-being; it kills the promise of dignity if not the concept itself; and it causes, by whom, why, when or where we do not always know, mass killings.

Actually, we do know a bit about what makes the garden variety of mental illness capable of the darkest surprises, and that is sufficient to our purposes in effectuating a policy of EMM for at-risk patients. Logic and dignity together DO NOT know of an alternative solution apart from the one we are living through. Ergo, it needs the close and careful scrutiny of us all. Absent that, we have no one but ourselves to blame.

Thank you, Charles, for this extensive reply to my query. I see that the issue is much more complex than the rights of the individual (i.e., personal autonomy). It is a dilemma falling smack in the middle of the Communitarian dialectic about the rights and responsibilities of an individual who chooses to live NOT in isolation but within a community - a community that likewise has duties and obligations in terms of cultivating an ethical and legal culture that is conducive to human flourishing (for all members of the collective).

Gwen

I can't compete with Charles' fantastic reply, nor your summation of the issues. I would simply add that for me a seminal concept in this area is the issue of positive v negative rights.

Wertheimer, A 'A philosophical examination of coercion for mental health issues' Behavioral Sciences and the Law, 1993 11: 239-258, helps one out of some of the individual v the collective blind alleys that often arise in these debates.

Sandy

Thank you, Sandy, for the kind words and the reference. Gwen was generous enough to place this question in several areas and the results were as I had predicted: pitiful. Not because Gwen didn't do a fabulous job because she really put the best intelligent foot forward, I think the paucity of responses may well be owing to the politically correct notions that include not talking about sensitive problems. Even in academe, where truth is the source of more lip service than service qua contributions to knowledge, cultural matters are by and large verboten, and issues getting to the nub of mental illness and its legal ramifications are even more declasse,

But for the rambunctious I have extended my comments above, added some research and published it here at RG. It is called Alice in a Mass Killer's Wonderland. f you believe as I do that we desperately require a national dialogue on this matter, please indicate to me via response or private message what professional or lay publication might accord this article a chance of acceptance. I would be eternally indebted.

Thanks in advance.

My documents page:

https://www.researchgate.net/profile/Charles_Herrman2/

Unfortunately I've discovered this discussion a few weeks after it took place. So I will simply add an interesting fact: recently France has changed its laws regarding the vote of the mentally handicapped persons. They are now allowed to vote unless a court of law decides otherwise. Previously, it was the opposite.

Of course, your post was referring to the mentally ill which is a different case. Yet, I think there is much in common between this political and legal change in France and the slowly but steadily decreasing prejudices in the Western world against mental illness.

Many thanks for bringing this discussion to light at a time where France, Québec (where I live) or Hungary have just voted or are about to, and public opinion focuses only on the possibilité for foreign residents to vote.

Thank you, Marie-France for your addition.

I received a note from Gwen in which several points were highlighted, yet I find them complete neither in the recent post not from Gwen’s original statement (perhaps my recovery increases the opacity of consciousness?). I will assume they exist somewhere, but instead of enumerating them I will address all of them by generalizing upon the sociological and legal aspects that make these various points relevant. Those writing or reading these points will recognize the references in what follows. If the account below seems unsatisfactory, as if not addressing all the vagaries of comment, I apologize.

Ignorance is the lifelong companion of conservatism. Readers of Mill will find an even less charitable locution to the same effect. Why? Well, don't be asking today's sociologists, anthropologists, behaviorists or lawyers. They are as brutishly ignorant as their students whose ignorance is thus fostered, nourishing a festering anger and knee-jerk distaste that has forever filled conservative breasts. Thus academics act as if it were a silly exercise to allow a binary to explain what is complex, whether in physics, physiology or culture. Further, it is thought unwise and unprofitable to publish studies the truths of which might offend someone. It is truly difficult to fathom the ignorance and gross cupidity that can for so long sponsor, with such success, such nonsense.

The correct social typology for culture relies on comparative mythology. Mead and Benedict failed to carry their shame-guilt thesis to that level and so were in error, though theirs was the best foot forward in all previous study of cultural 'configurations' as such common denominators came to be known in the 1930's-40's. Honor-based groups fear individuals amassing too much influence or other manifestation of power for fear of the expected social disruption. Accordingly, those who for whatever reason cannot be trusted are conceived as below the minimal requirement for respectability and trustworthiness, wherein we discover these same societies to manifest notable degrees of xenophobia, bigotry and what have you. That such are at once honor-based and conservative is not only not an accident, each is from its own vantage a fundamental illustration of the value of the correct binary approach (but don’t be mentioning this out loud to any sociology professor if you are a grad student in need of a recommendation).

Even today, the mentally impaired are presumed in such societies to lack *character* -- as opposed to lacking a normative physiological process. In fact, they do not recognize the very notion of mental illness. What seems a loose cannon on deck deserves pitifully little understanding. Between ignorance of the realities of medicine, and the ignorance of the true nature and motivation of vagrants, foreigners and all who are 'different', these honor-based peoples manifest all the conservative railing against outsiders we observe across the conservative political spectrum.

The other day my best friend and patron's daughter was married off to a conservative family in middle (read ultra-conservative) Texas. At the reception, the father of the groom was overheard to remark that one result of fracking has been that truckers bringing in the massive amounts of water required for such operations are enjoying unjust enrichment. ‘They don't know what to do with that money and shouldn't have it in the first place’, goes the refrain. Mind you, this from a fervent conservative capitalist who favors the marketplace – until, that is, it gets in the way of traditional bigotry overflowing the conservative mindset. Modern countries, even when nominally dignity-based, have more than sufficient residual honor-based ignorance and its conservative mediation to cause all manner of difficulties for those outside the radar in which beeps are to be trusted and silence given short shrift and opprobrium.

Needless to say, the mentally ill suffer at the hands of such ignorance, and there is no one ANYWHERE IN THIS COUNTRY with the brains that god gave geese that can or will educate our youth to overcome these issues of endemic ignorance. Academia, wake up and smell the roses!! Fortunately, at least one academic here at ReseachGATE has publicly opined that we ought to resurrect the Mead-Benedict approach. BRAVO!! But she is a lone voice in a callous ocean of cupidity and political correctness. And folks wonder why a persnickety genius might find foul with a tidal wave of lame academics!

The history of law is an exercise, perhaps rather a battle, between antipathetic pastures of a schizophrenic mentality in which the mentally ill have paid dearly for their innocence, while law school professors and their students suffer no ill effects for their studied ignorance. And yes, I meant exactly what I just said. And yes, I can defend my position up one side on down the other of lazy and lame legal academics who less give a crap about their profession than how to succeed with it.

So here's the deal: the LAW side of law has followed the conservative drift of the rural, the religious and the laboring, but above all, the aristocratic/plutocratic elements who would take advantage of the latter to retain for themselves a privileged spot in God's earthly firmament. Sorry for the starkness, but any historian of law who chooses to disagree with this statement doesn't have what it takes to teach legal history with a straight face.

The EQUITY side of the law has for a thousand years of Anglo-American legal tradition supported the dignity often enough buried under the dross of conservative ignorance. The equity side of law actually birthed the concepts of the law of office (bailment law of old), carved out the behavioral rudiments that would become the felony, ergo the founding of both public and criminal law. Equity has tended to stand up for the downtrodden, and that has historically included the mentally ill. The conservatives have tended to be no happier than when the mentally ill are akin to urban blacks earning money through penny-ante drug sales for which they spend decades behind bars. Conservatives silently, furtively. just love this crap, they just don’t hawk it in public too loudly. After all, they want to be re-elected to continue their war on the middle class and all who might require that they practice some stewardship. Don’t like the tone? Get over it. Read and learn. More, open your eyes and live. That was all that Selden required in order that anyone be able to know what the law expected of them. Sounds sooo quaint, doesn't it?

The law is merciful but yet firm. Equity must have a boundary, which has tended to be time out of sight/mind, what Maitland once suggested might be some 500 hundred years. In my "Alice in A Mass Killer's Wonderland" (available here) I explain what this has meant for the mentally ill WHEN AND ONLY WHEN said persons manifest red flags designating themselves as dangers to the community. The law REQUIRES -- has for a thousand years until American jurists found ways to screw everything up in their vaunted ignorance of the legal basics -- that those placing others at risk OWE the community an ounce of prevention. Real simple. Basic stuff. Don't tell that to today's cadre of moronic lawyers. Did I mention yet how much I adore professionals who, in positions to know better, could care less that they are brutally ignorant spank out of celebrated law schools?

Thus the mentally ill are between two worlds, one where their plights are placed in relief and perspective, where their dignity is recognized. On the other hand is the conservative ignorance maintained by cults of dignity (see any of my papers on cultural theory here) and the underbelly of the honor-based, where the populace in general, but especially those professional and elective positions of power who presume the right to control and influence, see to it that the forces favoring dignity are held at bay. The various improvements in the status of the mentally ill, as well as the lingering nonsense still au currant, reflect this legal division, and are fully understood only with the correct binary approach to culture and behavior.

Understanding the core tissues of the fabric of a problem is what philosophy is about. When sociologists and lawyers lean how philosophy applies to them, perhaps they will cotton to what is intelligent and necessary, especially to human dignity, rather than to what is narrow, parochial and favorable to self-interest and personal prejudice. There are many reasons to prefer a liberal philosophy over a conservative one. Dignity is the most important by far. The mentally ill, while they deserve to be understood and have their dignity respected, must also understand that they are not excused from the fundamental responsibilities without which equity can hardly hope to protect dignity from prejudice or desuetude. If they can be responsible for end of life care, they can be held responsible for the safety of the neighbors whose expectation must be that if someone requires medication to avert harm, then so be it. This is the lesson of all law, everywhere in the world, except right here, in these ever boastful United States of America.

I am sorry to be occasionally brutal. But after so many decades where nicey-nicey gets nowhere in a hurry, it were better to raise brows than to leave truth undisclosed and lost to a world desperately in need of more of it than less of it.

Gwen,

Your post has engaged scholars who have done justice with the problem. However, mentally impaired persons, in my personal view, should not be given personal autonomy as they may be harmful to society or at least their social relations may not be good and they are most likely to pick up fight for no fault of others. Other disabilities do not affect mind, the prime faculty that drives a person, gives meaning to life, to society, and behaviour.

Thank you, Charles, for your erudite input. This is why I hound you even knowing that you are in the process of recuperating from a medical intrusion into your work routine and thus do not need me adding more tasks to your list and screwing up your schedule. It is just that you never let me down! Therefore, I feel particularly sad that my legal colleagues are such a huge disappointmentf for you.

Charles, the problem is that we attorneys are taught to be advocates (i.e., to take up the banner for one side of a dispute or the other). WE ARE NOT TAUGHT TO PURSUE JUSTICE. American law schools must teach law students to represent either side of a dispute, which necessarily entails instilling in these young minds the ability not to be deterred from vigorous advocacy on behalf of a client just because the client is on the wrong side of an issue and is, to boot, a reprehensible person. Law professors are not philosophers and they are not ethicists so you are expecting too much from them. Although I teach ethics in a business school now; I previously taught law in a law school so I am speaking from experience. Charles, you know where the kind of sensitivity you are advocating for is being taught? In the divinity schools of America -- not in law schools or in departments of Sociology. Here again, I am speaking from experience because I attended the Yale Divinity School where themes of justice and fairness were much more prevalent in my courses than at either the Harvard Law School or the New School for Social Research (where I studied Sociology).

Sorry, Charles, but this is just the way it is.

Thanks again for giving attention to my question.

Gwen

Hi Firoz,

Nice to have you giving attention to one of my questions again! I value your input.

With regard to not giving mentally impaired persons autonomy because they may be harmful to society, yes of course public safety is always the main concern when the state "releases into society" persons who have demonstrated mental impairment (whether it is the "temporary insanity" of a jilted lover who murders in the heat of passion or a clinically depressed soldier like 34-year-old Spc. Ivan Lopez, the lone shooter at Fort Hood, our largest military base, who opened fire on innocent bystanders yesterday and killed three people).

Charles -- who counts himself among those with mental health conditions (Go Figure!) -- has addressed this issue by insisting that the mentally impaired be held accountable for their actions as the price for granting them more autonomy. For example, where medication reduces the liklihood of violent or destructive behavior, then the state would condition the granting of freedom of movement (outside of an institution) upon mandatory medication or treatments such as court-ordered electro-convulsive therapy and regular (e.g., weekly) home visits by a mental health professional.

What do you think of that, Firoz, as an alternative to just institutionalizing all mentally impaired persons? I am OK with that perhaps because I am American and we are a heavily medicated society; many of my friends (and their children) are on anti-depressants.

Gwen

"WE ARE NOT TAUGHT TO PURSUE JUSTICE."

With that you nailed it. NAILED IT.

But that begs a question or two. We an read an erudite treatment of justice, as for example Bodenheimer. Pretty good stuff in all, except that it isn't well held together by common threads and ultimately, sadly, reduces to your summary statement. Now here is the gravamen that makes me fairly furious with law school professors and a system that will not listen to them even if they do peddle real law as opposed to recipe law.

Equity IS ethics in law. Equity IS fairness and decency in law. Equity IS LAW. These should be the first and last words spoken to law students.The rest is duck soup once the basics are mastered. And THOSE WERE THE BASICS FROM ROME UNTIL THE ARISTOCRATS TOOK OVER AMERICAN LAW. Thus there IS NO excuse for avoiding justice when its essential definition is the ideal composite of law and equity as the context of culture and legal tradition dictate. I can get far more specific than that but I am afraid I'd lose the braggart lawyers who are so sure they know everything.

Lawyers have ALWAYS been my best friends. Not all of then share your view, Gwen. But Harvard, so far as I am aware, has taken to teaching how best to use juridical tools rather than how best tor represent jural realities. It didn't used to be so. Read some James Barr Ames or some Pound. You have stated the reality, I have stated what is correct, what is doable for being well within our legal tradition, and correct for addressing justice without failing law in the slightest.

The gravest sin is to not only accept but to defend a nefarious reality just because it is. It does not have to be that way, and I doubt you really intend to go that far. It wasn't that way two hundred years ago, though the wellsprings were admittedly active. Bailment law was on its way out the door. Equity was soon merged with law for all the right reasons, which under the impress of legalism fairly backfired. Now equity jurisdiction is in the greatest peril since before the Westminster edict (early thirteenth century) that REQUIRED every lawyer and judge to include equity as and when necessary for fear that JUSTICE me left unserved. Their word, not mine. You want law without justice? I have a big bone to pick with you, my dear. Ignorance is the only excuse you have for such an accession to impropriety,. And you know by now what I think of ignorance.

Law without justice is the fait accompli of aristocratic temperaments who want to control affairs -- whether for future assurances or present promises -- by controlling law and government, whether directly or indirectly. It is not right; and if I can have anything to say of the matter, it shall not forever stand. Not on my watch. You want to see hellfire and brimstone? Put the four+ conservative Justices with me on a public forum and I will show you gut-wrenching embarrassment that would quickly result in some retirements from the bench. Unlike a lot of today's lawyers I just happen to know what the hell I am talking about. Ignorance is not a part of my mental make-up. That is why it can be generally said that if it's worth while reading I am probably well enough acquainted with it. No Jurist of that Court will survive my pounding. That's a full-fledged guarantee for anyone wanting to see sparks fly. Gwen -- would you like to make the arrangements through friends of yours at Harvard?

Of course, if I had one or two or three MacArthur Fellowships, I could write the tome of tomes and it would be assured of publication. Scalia and Thomas would quickly retire and the notion of fictive persons treating money as free speech would be utterly destroyed under my relentless grasp of the basics. BTW I am writing a response to the recent decision as we speak. It will be delicious reading.

Oh Charles,

I have to disappoint you again, equity is NOT "ethics in law"; more accurately, it is "ethics DESPITE law". That is to say, a plaintiff (with clean hands -- a high hurdle) can obtain equitable relief even if he doesn't have a prayer in a court of law because the law is against him. Of course, courts of equity do not ever award MONETARY damages (giving real meaning to "It's not the money, but the principles involved"). This is your first clue that with equity we are talking about an animal of a different stripe. To fully grasp the difference between law and equity, it is useful to concentrate on "Remedies" a really fun portion of legal studies; to-wit,

"The existence of equitable remedies is an acknowledgement by the legal system that even when a legal remedy exists, there are a few cases in which the legal remedy (adhering to the letter of the law) would produce an unjust result."

For more, look at this website:

Gwen

I am a philosopher for a reason. I have ten times if once said that ethics is paradigmatic with morality. Disagree with me as you will, but I am the metaphysician, not you. And Swedenborg, despite Kant's negative review, had a few important things to say, of which the most relevant to this discussion is this gem that I have learned to live by -- because it is truth itself. ETHICS IS THE MEANS BY WHICH MORAL CONCERNS ARE MET. This is your normative definition of ethics, not the cheap short-shrift practical answer to a difficult issue that has caught on largely because serviceable. Serviceable in particular to those who wish to limit equity by keeping it compartmentalized from positive law as if that were the sole and only law (it is NOT THE law, and every rational human being knows this except those willing to believe the crap handed over in law school). This desideratum is only improved upon when ethics are likewise sharply contrasted with equity and law.

You yourself have complained at this. Now you must own up to the cause. You can't complain that ethics has no teeth and still somehow dream that law and ethics are sufficiently related to send the same message. THEY DO NOT. When an ethical issue becomes worthy of law it is no longer a matter of ethics but becomes negligence under tort law. Ethics services civil, not criminal remedies, and even these tend to be below law's radar. This was part of my message when Oklahoma was forming an ethics commission and I spoke on the matter before the State chapter of Common Cause. The lawyers in attendance were duly discomfited (not admitting such of course, for lawyers are the gods of our world) by my sharp comprehension of the fundamentals. Oh, you poor silly lawyers...

Just because you teach ethics doesn't mean you can/should identify with what you will without looking at the reality. Similarly your pride at Harvard is not something to be entirely proud of. You have a few things to learn. And speaking of an ideal with dirty hands...

You don't even know how to wend around an old worn out saw. I was asked by a lawyer how to convince a judge to extract both legal (monetary) and equitable remedies in a series of oil-gas lease cases. This may be an arcane area of law, and the issues may have appeared murky. But the law was not murky and today these cases are REGULARLY offering legal and equitable relief in accordance with (if not necessarily entirely due to) my advice. So, Gwen, start by reading Maitland's History of English Law, then his treatise on Ethics/Equity. Until you know what you are talking about (clearly you don't) don't site silly saws to a philosopher. You evidently, despite the encomiums you shower on me, have no earthly notion who you are talking to here.

Your understanding of ethics is narrow and contrived by a system with insufficient understanding of the concepts of office (the sole and entire source of ethics, and for that reason as well, EQUITY, for equity is the ethics of the office of law, and when you are an officer of the law your so-called ethics are rather more in the equitable category as per the Statute of Winchester of yore) or the bailment lessons dependent thereon. Don't bother citing authorities because here I am the authority. Sorry 'bout that, but in ethics and legal theory you and yours are not in my league. I am the philosopher, you the student who ate a little too freely of Harvard's forbidden fruit.

Here is your lesson on equity for today. "The equitable question, the question of remedy in context..." Context here means two things. Facts on the ground, and the unwritten law. The positive law is NEVER the law until equity has been consulted. Consult Hoffer, "The Law's Conscience: Equitable Constitutionalism in America." Heavily resourced in all the authors of whom you are embarrassingly unfamiliar. Of course you can feel free (but stupidly) to accost him, a non-lawyer, with the same idiotic excuses you direct at me. Advice: start listening to your intellectual betters. Harvard is the last credential I am willing to listen to. Try a little harder.

I finally found a correct reference. But I felt that a longer excerpt might better serve the argument. The excerpt is from the link below it.

Equity and Constitutionality:

Why the One Percent Is Having None of That

C. S. Herrman

Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all.

– Adam Smith, The Wealth of Nations

The Bar Association of New York once hosted a most unique conference. Amongst others invited to Is Law Dead? was historian Peter Gay, whose honesty was relentless: “But, as I said at the beginning, we must look at the present with some dismay. And one reason for this dismay is that I should find it necessary to remind you of such commonplaces.” Like truths, legal commonplaces are often inconvenient. As it happens, their avoidance remains a sore point that I would like to examine from a slightly different viewpoint, that of philosophy.

It is common these days to view American methods of lobbying as ‘legalized bribery’ and, to be perfectly frank, that is exactly what it is. The first legal commonplace to be introduced defines any unlawful act: 1) it must result in an injury legally recognized as such, whether to a protectable interest (at equity) or its empirical conveyance or repository (at law); 2) there must exist a rational (i.e., workable and effective) remedy at law or equity, and 3) the cause of action must reasonably account for the illegality of the given act(s) in circumstances under the appropriate jurisdiction. The first deals with jurality, the second with juridicality, and the third with the relations uniting jurality and juridicality, that is to say, ‘standing’.

The other notable commonplace best known for its absence was established by the Statute of Westminster II, 13 Edw.I c. 24 some seven hundred years ago –

And whensoever henceforth it shall fortune in the Chancery, that in one case a writ is found, and in like case falling under like law, and requiring remedy, is found none … a writ shall be made, lest it might happen that the court should long time fail to minister justice unto complainants.

In short, where equity is required, use it. Every lawyer and judge is supposed to know all that is necessary to intelligently identify and apply these commonplaces which truly are the very groundwork of law and justice. Whether practitioners do or don’t adequately know the law behind their recipe book practice, it is difficult to deny that the commonplaces are suffering neglect. An example of what results from such neglect illustrates not only that traditional law is being legislated out of existence with the permission of the courts, but that the excuses used to justify the death of law are both increasingly incoherent and politically motivated. Legal scholar Diane Lourdes Dick of Seattle University School of Law is the source –

For instance, the Supreme Court for New York County articulated the [reigning philosophy] in a decision declining to extend common law fiduciary duties in the context of a commercial bank financing the hostile takeover of its corporate customer, noting that ‘a per se rule might unduly restrict banks in providing credit to competing customers, and might thus unduly reduce the pool of available credit’ (173 Misc. 2d. at 967).

What’s a stab in the back between friends? In high finance, apparently no big deal. The ‘per se’ rule spoken of is an example of equitable interpretation of relevant facts and refers to conduct that in itself (per se) is sufficiently blatant as to allow the presumption of illegality without further evidence. Its origin is a thousand years old in English common law; its jurality is part and parcel of what should properly be termed stewardship violation as originally adduced in bailment, agency and tort law. As such the excerpt indubitably details a pristine example of commonplace neglect. The Court elsewhere suggested that a per se rule must be referred back to the legislature, a comical posture given that the motivation behind the legislators referred to might well have been to obviate the need for just such measures! When equity is necessary or appropriate, use it.

http://occupyforaccountability.org/?q=node/545

Dear Gwen,

My Psychiatry Professor, decades before, had started his session with a statement that I feel is relevant: "All of us are mad, it is only the degree that varies". On a lighter vein, if I take the face value of his statement, I do not think any of us will ever have the personal autonomy that you refer to.

There is a degree of difference between persons with other afflictions (however severe) and persons with mental disbilities. That degree is precisely in the territory called "rationality". A mentally challenged person is categorised as such because he/she is unable to exercise those faculties of the mind that help in seeing a situation comprehensively. However imperfect the "comprehensiveness" of a person (owing to his level of education, exposure, circumstances of life, social/domestic prssures, etc), a mentally un-challenged person, unless under the influence of excessive alcohol/drugs, is expected to take rational decisions. Even when he is extremely sick like in some cases that you cited, his mental faculties function more or less normally and therefore he is afforded the liberty of autonomy over his decisions. One another reason for allowing the autonomy to him is due to the fact that he/she had built their lives brick by brick by their conscious decisions before they were afflicted by sickness. Such is not the case with a mentally challenged individual. Throughout their life, they have never built anything consciously so as to stake claims to its possession or disposal.

This perhaps is the reason why legal systems around the world do not give the liberty of disposing what they have not earned to mentally challenged persons. Personally, I would rather provide for their care and well being through community/public action  than give them the dilemma of deciding on what perhaps they are not in position to appreciate.

Having said this, I would like add that we do have our share of mis-apprehensions about the mentally challenged. Across the world, we generally treat them with more contempt than understanding; with more scorn than compassion. The four mis-conceptions listed in the following website are equally applicable everywhere:

  http://depts.washington.edu/mhreport/facts_violence.php

Have a great day!!

"Throughout their life, they have never built anything consciously so as to stake claims to its possession or disposal."

Nice to hear from you again!

Very much appreciate your candor and wisdom on this difficult topic. My only quarrel, if it need be called that, is the excerpted statement above.

Just as there are degrees of physical affliction, so with the mental. I am certain you agree here. My emphasis is intended to remind you that many of the metnally afflicted, in a group in which I classify myself, by the way, are capable of highly constructive work and great accomplishments amid, or between serious episodes of, malaise - whether depressive or manic (the depressive being the worst of feeling, the manic the most destructive of life responsibilities).

Thank you for the link as well, friend.

Sorry for a slow reply, you come at a national holiday.

Thanks again as always for your judicidious remarks.

Thank you for taking the time to grapple with this question, Srinivasan.  I should note that here in the U.S. "mentally challenged" has come to define a great percentage of our youth; mainly because of the burgeoning specialty of treating the "learning disabled" student diagnosed with having "Attention Deficit Disorder."  Give a problem a scientific sounding name and the Academy will find a new major to bring in the tuition dollars.  Therefore, with all of the previous education majors now opting to specialize in educating the "learning disabled student"(for enhanced marketability on the job market), psychologists (and social psychologists) are diagnosing younger and younger childreen with learning disabilities and consequently expanding what is termed "mental illness" in US.  Given this trend, I doubt that the solution of providing "for their care and well being through community/public action" rather than giving the mentally challenged more autonomy applies to a growing segment of the American population.

Gwen

Dear charles,

How can I disagree with you? There is a ton of humour hidden behind the fourth para that you added, if I am not mistaken!!

The world has always categorised thinkers, philosophers and path finders as mentally afflicted because they choce to raise the rabble against conventional thinking. I am very sure that every single one of them have felt felicitated by such branding, for in the long run they have been proved right. The latest 'genius' that management circles and student communities are gaga about - Steeve Jobs - was a school drop out. By general standards that we apply for being successful, he should have failed. In a way, he was manic - about finding his true potential and his quest eventually made him Steeve Jobs. There is merit in being manic. I do not subscribe to depressions!!

But the mental affliction that we are looking at pertains to the lack of those faculties of mind that facilitates logical thinking. They are people who are unable to take care of their personal needs like washing, for example; or counting the pennies to pay for their food; or to clean up their room evevryday. It is possible that a serious physical affliction renders an otherwise 'normal' person unable to do so. And, in those type of cases, legally, the person woul be equal to a mentally challenged person.

Going back to Gwen reference about living wills, even though debilitating drugs may be administered on a person, he is considered able to excercise his judgment about the disposal of his property because it has not been earned during the sickness; in the process of accumulating his wealth, he/she also has displayed affections/disaffections towards those who may/maynot be the beneficiaries; and such deep rooted affections/disaffections or unlikely to be erased by medicine he is living with now - in summary, shall we say he he/she has lived a normal life?. I feel that this is the reason why he/she has autonomy over his/her will. A mentally afflicted person, on the other hand, has not had such a life because of his/her peculiar mental conditions.

It is in this context that I made the statement that you referred to. Thank you for prompting me.

Have a great day.

Dear Gwen,

Personally, I take strong objection to classifying children with LD as mentally challenged. They are not. My apologies for being so terse.

My wife and me have dealt with children with LD for over ten years now and I can assure you that LD is not a mental disability. Take me for example, I cannot do statistics. Greek is literally Latin to me. Bioinformatics beats me blue. I am neither LD nor challenged (hope so!!). Learning disability, simply, refers to a condition in which the child finds it difficult to make sense out of ceratin signs, letters, pictures, and the life around him. Just because he/she cannot make sense out of numbers (called Discalculia), a child cannot be classified as challenged. Yes, in a way he is challenged by the numbers since they make no sense to him. Give him crayons and paper, you might actually be looking at a future Da Vinci.

Just to make my point, here's a list of people whom we all know - THEY WERE DISLECTIC!!!

• George Washington: First President of USA.
• Alexander Graham Bell: Scientist/Inventor.
• Woodrow Wilson: Former President of the USA.
• Albert Einstein: Physicist/Mathematician.
• Leonardo Da Vinci: Artist/Scientist.
• Thomas Edison: Inventor.
• Tom Cruise: Actor.
• Kiera Knightly: Actress.

If LD children are being equated with mental disbilities, whether in USA or elsewhere, it is very unfortunate. Parents and teachers, need a lot of education. Please check the following sites. The names will tell a lot about LD than what I can write.

http://www.dyslexia.com/famous.htm

www.learningrx.com/famous-people-with-dyslexia-faq.htm

http://en.wikipedia.org/wiki/List_of_people_diagnosed_with_dyslexia

PS: Must apologise for adding personal notes - General George Patton Jr, undoubtedly one of the greatest tactical genius of our times, battled more successfully with dislexia to become what he became. Check for an interesting read: http://athleteoutreach.com/index.php/george-s-patton-olympian-and-dyslexic

Have a great day!!

Wow, how brutal: Steve Jobs was -- MANIC!!

Ha ha!! No one has ever in this country (USA), that I know of, ever publicly suggested that Jobs was manic. And here you are blutatiously bellowing this as if it were as droll and pedestrian a remark as could be suffered a queasy audience.

And you are SO right!. Jobs was a full-fledged bipolar who, had he permitted himself the luxury of medications, would be alive, kicking, screaming and just as brillinat today. The loss of sound judgment associated wirth mania is a real kicker. Jobs would never have rejected the advice of his medical team and opted for naturapathy and meditation had he been of clear mind.

This will (by the ignorant) be thought provocative and/or judgmental. It is neither. As a full-fledged bipolar (but who had the intelligence to choose medications) I rather know what I am talking about, quite apart from the theoretical work  starting in college, where I made contributions that, had they been published by a reluctant academe (in their cult of dignity they are too good to publish independent geniuses) the medical community would be fifty years ahead of its current dilapidated desuetude. To this day they barely comprehend how schizoid and manic traits can prfoundly manifest alternately and even together in the mentally *conpromised*, to say nothing of the 'challenged'.

Compromised, not "challenged', as a favor to you, dear Sir. You have elected to take the proundly ill as 'challenged', whereas I brought up a 'group' of those compromised because debilitated during depressive bouts (though on meds I am susceptible of a week or two in bed every six months), and compromised in judgement if not the wherewithal to live autonomously.

Had I been on meds I would not have dropped out of schoool, neither probably would Jobs, though I won't argue that as a prognostication, only a probability.  I also presume your remarks on LD are directed at what we used to call 'behaviorioral problems' before the pharmaceuticals sold us on the biology of what one expert termed 'driven to distraction'. Here again there are grey areas that even professionals, who we pay to know better, refuse to acknowledge, a portion of which you point out quite rightly. On the other hand, some of these kids in fact have, if not a 'disease', certainly a disorder, and one featuring chemical imbalance.

Having said that, however, let's at least acknowledge the multiple sources of such imbalances. There are genetic dispositions, there are 'traumas' associated with pregnancy/childbirth and very early experience that prompt development of dyslexia, visiual and/or auditory (most don't know abourt the latter, which almost got me fired from two different positions; the visual/cognitive DID get me fired from two others).

Then we must list the exposures and psychological distresses (no, they are NOT the same thing) that lead to temporary or chronic physiological perturbations reflected and expressed in and through chemical imbalances, a la neurotransmitters. These arrive in two categories, the soft-wiring variety and the hard-wiring one, the latter requiring medications, and the former usually not.

Oh, you want an explnation of that bonbastic remark about stress and exposure? I see. Okay, here it is. Exposure is a bioloigcally mediated phenomenon disposed by inherent biological capacity (essentially instinctive/reflexive tendencies) and/or as a carried disposition via the epigenome from familial exposures during famine or catastrophe (and productive also of PTSD, the point being that exposure is the source of ALL PTSD, the symptomatology which should never fail to remind a physician of bipolar  traits, whence anticonvulsives are found a useful adjunct therapy).

Through the physysiological responce to exposure neurochemcial modifications are generated that induce what we know as psychic distress, or, simply, stress. By the same token, these chemical reactions to exposure often bounce off healthy brains like water from a duck's back. Individual variations and predilections matter a great deal.

It was Hans Selye who first drew attention to the interaction of the biological and psychological (Stress of Life, still a classic study of his GAS - General Adaptative Syndrome/System). Stress serves the same function as emotions like fear, anxiety, guilt or shame, all prompting us to avoid negastive exposures. The state of depression is nothing less not more than a global effor in the same direct, for the same ends. And it, as with mania, is, counter-intuitively, induced by over-stimulation but NOT, unlike the case of simple mania, so readily eased by anticonvulants, whence the category of 'antri-depressants' that achieve the same result through a back door mechanism not well understood as yet.

In short, LD is a spectrum, much of it as you describe, some of it requiring therapy where isseus are beyond behavior but short of hard-wired. But we must finish the list of causes. General stress over time can cause issues, as can chenical pollitants as they add up. The increased incidence of cancer (in this country one of every TWO men will develop a cancer (I have just successfully met my fifty percent probability)!!! That kind of probability is not a mere resuklt of better detection prior to death. It is the result of chemcials, from environmenetal pollutants to chemical additives.

Needless to say, these add up to a lot of sources for adaptive disorders. I urge you not to take a label as a one-stop shopping for syndrome evaluation, but rather as a spectrum over which many variegated manifestations evolve in different ways for different people (chilkdren especially).

Well, this is more than I thought I had either time or effort to write, and more probably than any one wanted to drudge through. Apologies is any of it has been off-putting, though I never apologize for the fruits of a lifetime of accruing understanding and knowledge, only in the modality or manner of delivery.

Cheers.

I might insert consideration of the dialogue between Russell Ackoff and Daniel Greenberg in Greenberg, D., & Ackoff, R. L. (2011). Ethics and morality—A dialogue. Systems Research and Behavioral Science, 28, 3-14. doi: 10.1002/sres.1008 to spice up this cogent argument.

Hi Daniel,

Thanks for reinvigorating this important discussion!

Gwen

Ditto

Had the suggested article been available to me I'd have read it and offered remarks. That will await a copy from the authors. 

 Hi Joe

Sounds good to me. My sole concern is with the presence of 'red flags'; their evaluation would be along the lines of court-appointed psychiatrists (or others) offering expert testimony. My general argument on coercive therapy and the rights of the disabled are in the article below:

https://www.researchgate.net/publication/259528367_Alice_in_a_Mass_Killer%27s_Wonderland

Thanks

Article Alice in a Mass Killer's Wonderland