chapter  4
26 Pages

Criminal responsibility and the insanity defence

From the earliest times in Western jurisprudence there has been a tension between the law’s recognized duty to expose and punish the guilty, and those medical, philosophical and psychological theories concerning the determinants of human conduct. The ancient courts took the criminal act itself as evidence of mental capacity and saw to it that damages were compensated, crimes punished and society protected against the deeds of the mad. Ancient Greek and Roman law made specific provision for the insane, and Roman law had precise terms for insane defendants: non compos mentis, fanaticus, ideotus, furiosus. It even recognized that a furiosus might not be mad at the particular time an act was committed, thus accepting that some forms of madness are episodic. However Roman law never defined insanity: rather, it regarded it as a matter of fact, to be settled according to community custom. In practice, however, the insane could not be held accountable for their deeds.1 References to the insane in Justinian’s sixth-century Digest, the part of the Corpus Juris Civilis intended for judges and magistrates and which included selections from classical jurists, noted that uncontrollable lunatics and murderers who were insane at the time of the crime, and not merely feigning, should be imprisoned or confined in their homes, but not punished; insanity was itself punishment enough.2