By Walter Borden, M.D.
Clytemnestra: “But blood of man once spilled, Once at his feet shed forth, and darkening the plain, Nor chant nor charm can call it back again. So Zeus has willed.” Aeschylus, Agamemnon
What continuity does criminal justice have with the ancient past? How far back in the looking glass can we peer? This essay is a condensation of a book in process; it flows from my work in the trenches of forensic psychiatry: from Juvenile Courts, Public Defender consultations, Connecticut Superior Courts, Federal Courts, but also consultant to a variety of public agencies and private law firms, and faculty positions at the University of Connecticut Health Center and Law School. My special interest is the relationship between the science of the mind and jurisprudence.
To the courtrooms come mothers and fathers who destroy each other and their families, who torment, even kill, their children; sons and daughters who kill their parents or each other; women and children violated; killers of strangers; the bestial and the greedy—all the variations of brutality, cruelty, and depravity that threatens our fragile fabric of civilization. Exploring Classical roots, these are modern echoes on the ancient Greek tragic themes haunting the stories of Agamemnon, Clytemnestra and Medea.
I am an expert in the understanding of how people can fall into those trenches. I have examined hundreds of murderers, serial and mass murderers, filicides in post partum psychoses, homicide-suicides, siblings killing siblings, all the kinds and degrees of family violence, destructiveness, and suicides, including suicide by cop and state.
Every one of them took a bit of me and contributes to the flow that is the crux of a book I’m writing, of which this article is a prelude.
Psychiatric autopsying of inhumanity launched me on a journey to further understand the path to humanity we call Justice. Along the way I could see that road was paved with psychology. And I learned that violence is but one outcome of emotional pain.
If we look to the standard sources to understand that relationship we can become preoccupied with the formal literature of legal experts, historians, sociologists, psychologists and psychiatrists. And to supply an infrastructure to our psychological model we train our high-powered technology on genes, wiring, and chemistry interacting with “environmental issues.”
But then we miss an essential lens that opens to a deeper understanding of Psychology’s complicated relationship with Law. We miss the crucial contributions of the humanities, the arts, music, literature, drama, and the myriad cries for help, of pain and sadness that spill out of so many human creations.
The standard view of the integration of psychology and jurisprudence goes back to thirteenth century English law and a controversial jurist. Henry de Bracton. He was controversial partly because he is said to have introduced the novel, for its time, idea that the state of mind of a defendant might be important. How could you call someone a murderer without knowing his or her intent? In other words, was the offender aware of, and intending to do harm? Of course this has become basic in our criminal law. His writings were influential in the later development of the initial English law definition for legal insanity, a state of mind similar to that of “a wild beast.” This was likened to an infant or “idiot”. Legal insanity meant the subject offender was mindless, totally lacking in knowledge or understanding. This became known as the “wild beast test.”
Bracton was also controversial because he turned English law upside down by emphasizing that the King is under the law, and the purpose of justice is to protect the rights of all. Note here the famous dictum: REX LEX vs. LEX REX. Latin syntax allows either reading in either order but emphasis suggests the readings, “The King is the Law” versus “Law is the King” by word order.
I decided to look more closely at this interesting Chief Justice Bracton who seemingly out of the blue came up with the concept of intent, and seemingly brought psychology and law together. I examined the place on the map where I found Bracton.
There was a Norman road under Bracton’s feet. And that road led directly back to a legal star, the one who opened Bracton’s mind—and eventually, ours. Cicero. He is credited with transfusing Rome with Athenian culture and jurisprudence. His rediscovery by Petrarch in the 13th century opened the Renaissance.
1066 AD was the “tipping point.” Until that year the British Isles were relatively isolated, although monastic places like Ione, Durrow and Lindisfarne maintained the light, however dim elsewhere. Had been since the Romans left some six hundred years previously. English justice was primitive, and unaware of the cultural treasures across the channel. But in that year William the Conqueror crossed the channel. In addition to military know how he brought a rich history of continental culture. That included the Greek and Roman legacy of jurisprudence. It took some three hundred years for the seeds of that legacy to bear fruit. That’s where Bracton stood.
Bracton was one of those remarkable individual’s who sought perspective. He was a classical scholar, student of Canon law as well as jurist. He researched decades of English individual cases seeking patterns. He instilled order in legal chaos. He set the precedent for Law’s reliance on precedence. He also researched Greco-Roman classics. Part of his unfinished legacy was his book De Legibus et Consuetudinibus Angliae. I followed his lead back through the English legal history. Reading what Bracton must have seen with his eyes, the bubbling up of the Greco-Roman influence through Cicero.
But in recent years lip service has been paid to ancient history, and there is no mention of the contributions of the ancient dramatic arts, of the foundation of democratic justice by the natural philosophers or of the transforming figure, Cicero.
If we continue our preoccupation with modern historians of jurisprudence we will miss the early Athenian insights into the psychosocial forces shaping the individual, the family, and the community. We will bypass the dawning recognition of psychodynamics as an explanatory principle underlying relationships, behavior, conflicts, and suffering. We will miss the birth of psychology, anthropology, sociology, political science, and humanism. Nor can we understand ancient Greek psychiatric sophistication if we stop at those natural philosophers who laid the foundation for psychology—Thales and his followers. And we have to look at the influence of the natural philosophers and tragedians on Aristotle, who synthesized, extended, and so eloquently expressed their contributions to the science of human nature.
We have to look further and in different places to know how firmly psychiatric principles were embedded in people’s everyday lives, and we have to examine in depth Athenian social institutions of democracy, the polis, and the justice system in order to know their psychological underpinnings.
We will find the instrument for that examination in tragic drama of the sixth and fifth centuries BCE, which serves as a window into the evolution of justice and the science of the mind.
A significant characteristic of Greek mythological religion was its family structure. The Olympian family had its rules, and even Zeus had to abide by them. There was law more fundamental than the gods; there was a power above the gods; there was the basis of the rule of and equality before the law.
As the Olympian family lost its religious influence, this power for some in the sixth century became nature and natural law—science. To others it became human law—justice. And for a few insightful Greeks there was the realization that the Olympian family was the reflection of the human family, and that the gods were projections from the minds of mortals. These thinkers were the tragic dramatists. They saw through mythology to what the mythology said about human nature; they looked into the mind, identifying underlying principles and patterns. It is their insights into psychodynamics, later developed and joined with medicine that becomes modern psychiatry and psychology.
If we are to understand the origins of the science of the mind, we have to look to the tragic dramatists. They, too, arose from the ashes of Olympus and Marathon, free to look inside the mind, relationships, family, to probe gender and generation conflicts, and to explore the conflicts between the individual, family, and state.
The tragic dramatists owed their frame of reference to Homer, Hesiod, to the philosopher scientists, and to Solon, who had embodied their principles in his understanding of justice. The seeming randomness and chaos of nature is in reality subject to natural, not divine, law. The tragic dramatists developed that concept into an understanding of the human psyche as subject to natural law, in the form of psychological patterns. They created a new art form that dramatically depicted psychological issues in individuals, families, communities, and nations.
Tragic drama arose out of the need to understand and express human pain, to understand and voice and thus perhaps lessen the pain of grief, disturbed relationships, and violence, not just in the family but also in the larger family of the city-state. Tragic drama concentrated its lens on the character conflicts within the individual, between private and public interests, between the family and the state, between systems of justice, between written law and moral code, and between the genders. It focused often on issues of malignant leadership, despotism, and the destructive narcissism called hubris, which could damage not just people but the state itself. Greek tragedy struggles with the complex issues of how people live within themselves, within their family, and within the community. Tragedy, psychology, and justice are intertwined.
The institution of tragic drama was born out of the convergence of science, justice, and the development of the city-state. These were not separate phenomena, as we know them today. They were interdisciplinary. The men who established them did not live as we now study them—in isolation, abstract and compartmentalized. They learned from each other. They communicated, visited, inspired one another, competed, and cross-fertilized their ideas and their evolving perspectives. The Greek mindset was inclusive, interrelating seemingly different disciplines, reacting to new perspectives, integrating new knowledge, building new and broader concepts, a new and deeper understanding of human nature, and the integration of that understanding in a new form of government, democracy. They connected the dots.
At the birth of western civilization in Greece, political freedom was joined with the freedom of the mind for the first time in history. While Greece’s neighbors in the Near East had developed scientific technology, their intellectual, political, and cultural vitality was strangled by autocracy and theocracy. The Hellenic philosopher scientists were exposed to their neighbors’ technology, absorbed it, and utilized what they found valuable.
Mathematical and geometrical concepts from the river civilizations, and alphabetical language structure no doubt were influential. Nevertheless, the unique Greek creation was the scientific attitude, a living philosophy built on the concept that natural phenomena have natural causes. Eclipses, thunder, lightning, storms; the movement of the stars, and tides could be explained by natural measures.
Underlying principles, fundamental laws of nature, make a symphony of understanding from a cacophony of forces.
And this philosophy infused Greek statesmen, who saw these laws of nature as sociopolitical laws directed by a principle termed justice that sought to peaceably resolve opposing human forces. This unique creation grew from a melding of minds, of perspectives, in a historical context that not only allowed but also encouraged minds to connect.
Solon, creator of democracy, visited and consulted Thales, creator of science. Plutarch tells of that visit, and how Thales gave Solon a lesson on the emotional pain of loss, providing some insight into the intimate nature of their relationship, and into the psychological sophistication of these two remarkable men.
Thales’ student Anaximander observed there was a balancing tendency for forces in nature. He had a mathematical bent, and he borrowed from Pythagoras the idea of harmonics. He introduced the concept of process, in which the balancing of competing and compensating forces involves interaction over time.
Anaximander used the metaphor of a Homeric legal trial to explain the principle of conflicting forces in nature that interact and compensate in a process tending to equilibrium. He likened the process in nature to litigants in debate before a judge who decides what compensation will resolve the discord. In his metaphor, time itself is the judge. He envisioned the process of equilibrating compensation over time between dissonant forces as a fundamental law of nature that became active whenever competing forces came into play. This is the core concept of ancient Greek justice (it is the definition of dikē) and also of Hippocratic medicine; it anticipates homeostasis in physiology, the conservation of energy in physics, and the understanding of disease in medicine and psychiatry, both of which see underlying pathological processes as reactions tending to equilibrium even as they cause symptom, pain, and disability.
It is not by chance that Anaximander used legal language and refers to trials, debating adversaries, and judges. Since the time of Homer and Hesiod, the Greek legal system developed in a symbiotic relationship with evolving science. Hesiod defined justice as retribution from the gods—Zeus’ to the doer be done (a notion not dissimilar from some modern versions). But buried in Homer is the idea that there is a more fundamental law than that of gods and that even they are not above it—not even Zeus.
In the more than three hundred years from Homer and Hesiod to Solon’s ascendancy, a weak monarchy gave way to a controlling powerful aristocracy, which in turn was challenged by a swelling and dissatisfied disenfranchised lower class. Class conflict worsened as society became more complicated, and it was compounded by the growth of a middle class of merchants, traders, and businessmen. Burdensome, autocratic, serving the wealthy, exploiting the underclasses, justice was an ongoing contentious theme. The result was a series of coups by tyrants and cycles of retaliatory violence. Revolution begat revolution.
Fearing another violent upheaval, the aristocracy turned to Solon as an arbitrator who had the trust of all sides, including the underclasses. Solon was a complicated man; noble by birth but the family had been drained of funds by his father’s generosity to the poor. He had received the classical education of the day, military, immersion in Homer and Hesiod and training in rhetoric and the writing of poetry. In poetry form he expressed his understanding of the underlying causes of class warfare and spoke to those who most needed his help. In the midst of a burgeoning political crisis and out of desperation, the ruling aristocrats appointed him principal archon, or governor, for the year 594-593 BCE, with authority to do whatever was needed to prevent revolution. He was given a blank check.
Analogous to Roosevelt’s 100 days thousands of years later, Solon made society-sweeping changes. He established a legal code and constitution that laid the foundation of democracy. He transformed ancient law based on private revenge into a public court system that incorporated psychological principles. He structured civil and criminal courts with magistrates, prosecution, defense, and jury of peers. John Adams in his Defense of the Constitution gives long reference to Solon.
Approximately one hundred years after Solon, during another socio-political crisis that was threatening Solon’s justice system, Aeschylus produced The Oresteia, a unique work of art in its own right, but also a defense of Solon’s democratic justice and the inclusion of psychological principles in law. Due to Solon, Aeschylus also introduced into his tragic writing about homicide the idea of extenuating circumstance. Aeschylus and the tragedians who followed attacked violent resolution of conflict, and immortalized democratic justice–Solon to Cicero, to Bracton, to Coke et al., to Jefferson and Adams, to us.
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