Nigel Walker

The Insanity Defense before 1800

The earliest context in which madness is treated as an excuse for crime is Justinians Digest. The Christian church brought this feature of Roman law to pre-Norman England. Madmen were probably not regarded as triable by ordeal, but were simply left to be guarded by their kinsfolk. When trial by ordeal was abandoned, and juries had to determine guilt, juries were at first expected to find madmen guilty but refer their cases to the king for pardon. It was not until about 1500 that juries seem to have begun to acquit on grounds of insanity. The reasoning varied: madmen were “punished enough by their madness”; they “lacked the will to harm”; they could not “tell good from evil.” How strictly the tests of insanity were applied depended on the crime. The rejections of the defense that figured in the State Trials series were not typical, but gave historians the impression that the defense hardly ever succeeded before Hadfields trial in 1800. In fact, as the Old Bailey Sessions Papers show, it often succeeded in the eighteenth century. Nor was this the result of empire building by the medical professions. Laymens evidence was often accepted without any testimony by mad-doctors.

Even More Varieties of Retribution

Professor Cottinghams article ‘Varieties of Retribution’ in the Philosophical Quarterly , 1979, 29 , 238ff. is discussed, and new varieties of retributivism are outlined and criticised, particularly those proposed by Richard Burgh, Michael Moore and Robert Nozick. The ‘Kantian gap’ between moral censure and the obligation to punish is emphasised. Distinctions are drawn between theories which make punishment a duty and those which make it a right, and also between those based on the notion of a rule and those based on the expression of blame.

Nozick's Revenge

When I first came across Robert Nozick′s Philosophical Explanations I was struck by the purity of his justification of punishment. Most latter-day retributivists are crypto-utilitarians, claiming to find some sort of benefit in penalties, even if it is only symbolic. Nozick too sees punishment as symbolic, but not as having any necessary utility. Paradoxically, perhaps, he is one of the few retributivists who insists that it matters what the offender makes of his penalty. Even more interesting is the importance he attaches to the analogy between retribution and revenge. Most retributivists are at pains to distance themselves from vengeance: but not Nozick.

Mcnaughtan's innings: A century and a half not out

Abstract Historians will wonder why the so-called McNaughtan Rules remained in force for 150 years or more in spite of their well-known defects. The answer is complex. Non-historians may wonder whether we need an insanity defence nowadays, in view of the available alternatives. Perhaps we do not; but the Butler Committees remedy was less radical, and although it has not been enacted an improved version of it is embodied in the Law Commissions Criminal Code. It seems unlikely, however, to reach the statute-book without the initiative of a private members bill.