The fundamental idea of "law and aging" as a discrete category of legal principle and theory is controversial: What special feature and characteristics of "older adults" justify and even require a particular theoretical approach? Is it possible to formulate legitimate generalizations about a group identified as "older adults", while avoiding the harmful stereotypes of ageism? And what if anything is gained by the approach?
In an attempt to provide answers to these difficult questions, this book presents a collection of different theoretical frameworks to the field of law and ageing. Written by the leading scholars in the field, this book describes the diverse and rich theoretical landscape of this field, and argues that time has come to recognize the importance of "Jurisprudential Gerontology" for the future development of the socio-legal science of ageing.
Theories on Law and Ageing Israel Doron Editor Theories on Law and Ageing The Jurisprudence of Elder Law Editor Dr. Israel Doron University of Haifa Department of Gerontology Mount Carmel 31905 Haifa Israel
[email protected] ISBN 978-3-540-78953-6 e-ISBN 978-3-540-78954-3 DOI: 10.1007/978-3-540-78954-3 Library of Congress Control Number: 2008925884 © 2009 Springer-Verlag Berlin Heidelberg This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, roadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover Design: WMX Design GmbH, Heidelberg, Germany Printed on acid-free paper 5 4 3 2 1 springer.com Preface This book is about trying to answer questions. These questions were well introduced by Prof. Margaret Hall in the opening of her chapter in this book: “The fundamental idea of ‘law and aging’ as a discrete category of legal principle and theory is controversial: how and why are ‘older adults’ or ‘seniors’ or ‘elders’ (the very terminology is controversial and fraught with difficulties) a discrete and distinct group for whom ‘special’ legal thought and treatment is justified? For some, a category of law and aging is inherently paternalistic, suggesting that older persons are, like children, especially in need of the protection of the law. In this sense, the argument continues, the category itself internalizes ageist presumptions about older adults and is therefore inherently flawed and even harmful. If certain older adults are, because of physical or mental infirmities, genuinely in need of an enhanced level of legal protection, this entitlement should be conceptualized in terms of their disability; older adults are not a distinct group but an arbitrarily delineated demographic category which contains within it any number of groups that are legitimately distinct for the purposes of legal theory (the disabled; women; persons of colour; Aboriginal persons; rich and poor; etc.) Indeed, the artificial category of “older adults” may be seen as obfuscating, submerging these more meaningful distinctions. The essential questi