W.-A. Bouguereau, The Remorse of Orestes, 1862 (public domain, courtesy of Chrysler Museum of Art)
By Walter Borden, M.D. –
“Revenge is a kind of wild justice, which the more man’s
nature runs to, the more ought law to weed out; for the first
wrong, it doth offend the law, but the revenge of that
wrong, putteth the law out of office.” —Francis Bacon
Bouguereau’s Late Romantic painting above depicts the fleeing Greek youth Orestes pursued by the implacable, maddening Furies after he killed his mother Queen Clytemnestra who had killed his father King Agamemnon who had sacrificed Iphigenia, the daughter of the king and queen and Orestes’ sister. Clearly this old Greek myth was a complicated interwoven homicidal narrative. The Furies were the harsh dispensers of justice that comes from revenge. Their ancient Greek names are telling, like Tisiphone, “smeller of blood”. The Greeks learned they needed a better, more rational basis for criminal law.
Science embodies the laws of nature. Psychiatry is the science of human nature. Ultimately it is the science of emotional pain, and of paradox that, contrary to nature, can lead us to cause pain to others and ourselves. We humans are capable of acting at odds to our own survival. In fact we can be quite destructive, self-defeating, and self-destructive. We are the only animals to knowingly commit suicide. And we kill singly, in scores, thousands, even millions for seemingly no, little, or for the flimsiest of reasons. We can commit genocide based on symbol, myth—or less. We carry a savage primitive core.
As a young medical doctor in forensic medical psychiatry, I became immersed in the complex issues of why we hurt and kill, and why we can destroy ourselves and those we love. I became a psychiatrist and forensic psychiatrist, a psychiatric pathologist of the criminal mind. Pulled out of the hospital, into prisons and courtrooms, at the interface of Psychiatry and the Law, I found myself in a place where our society tries to solve problems in human nature by means of a system called Justice. More paradox.
To our courtrooms comes mind-boggling barbarity. There are all the variations of human cruelty, depravity, and destructiveness that threaten our fragile fabric of civilization. We rely on Justice to maintain that fabric.
Forensic Psychiatry tries to help Justice understand an individual’s mental state when it appears that mental illness may be part of the problem before the court. The best-known example involves the question of legal insanity, especially in heinous crimes that grab attention.
Justice asks for assistance in making intelligent decisions when mental illness is relevant. Intent, motivation, what makes someone tick is important in sentencing as well as establishing guilt. There is, however, controversy about psychiatry’s role in our legal system. For some three hundred years the controversy has been heated. It comes to a boil when there is a political assassination such as the attempt on President Reagan. I needed to understand the controversy, and our 21st century role in working with Justice. I thought a good place to start was exploring the history of the insanity defense.
My exploration of psychiatric history turned into a journey. I travelled much further than I expected, and took some surprising turns and touched down in unanticipated places. I landed at the birth of our western civilization with the beginning of science in ancient Greece.
I met the midwife of that birth, Thales, who had the revolutionary idea that it was not the gods that controlled the natural world. The seeming chaos of nature, storms, tides, seasons, and the movement of stars were the result of underlying laws of nature. Thales was the first scientist. There were no gods, and mythology was stories made up to explain the unknown.
From the stars to the earth under our feet, the world could only be understood by observation and logical reasoning. Mythology was myth. Thales taught the scientific method. His realization that natural phenomena can only be understood by observing and reasoning became the road to civilization. At the next stop on that road I met the first political scientist, Solon.
In a sense this article – my second for this magazine – is a “Tale of Four Cities”, chronologically being Athens, Rome, London, and Washington.
Our western legal system, called democratic justice, evolved from the need to tame our savage nature. Earliest civilization relied on revenge justice, an “eye for an eye” in Biblical terms, or in Greece, “to the doer be done.” The victim, his or her family, tribe, clan, village, or country did punishment—see Trojan War or Rwanda. It resulted in vendettas and never-ending cycles of violence. Revenge justice, or “wild justice,” as Francis Bacon later called it, was tearing apart infant civilized society.
Justice as we know it dates back to sixth century B.C.E. in Athens. Those dark times needed a Moses. They got better than that. Solon was a poet, philosopher, soldier, merchant, practical economist, and social critic. He shines out of antiquity. Solon came to power as revolution was knocking on the door. His mission: put an end to the cycles of retaliatory violence that had plagued Greece for centuries. Athens wanted peace and order. Solon had let the people know his vision of social order and need for justice through aphoristic poetry and championing legal reform.
Solon laid the foundation for a democratic justice system. In what can be compared to the creative legislative eruption of Roosevelt’s “First Hundred Days” to meet the U.S. Depression’s crisis, Solon drafted the first of a series of constitutions that gave birth to democracy. He established a public court system and legal code that brokered a non-violent social revolution. He converted private revenge into public justice. This system was based on the rule of law and equality before the law. There was redistribution of power and resolution of conflict through public adversarial trials before a presiding judge. Juries of peers were selected by lottery. If this sounds familiar it should. That’s where our system comes from.
Religion was separated from the administration of justice for the first time in human history.
Solon harnessed “wild justice,” and made it a central part of democracy.
These developments occurred in the context of the birth of science. Solon seized the concept of natural law and applied it to governance. Human nature was being recognized as a part of nature, and had its natural law. As the movement of the stars, storms, tides, and seasons were understood to be the result of underlying laws of nature rather than visitations from gods, so too were the mysteries of behavior, the storms of emotions, and life cycle seasons understood to be influenced by laws of human nature. This was the beginning of psychology.
Solon incorporated psychology into his legal code. Understanding what was in the mind of the accused became a priority. Manslaughter and intentional homicide had been differentiated even under Draco, but intent and motive became more important under Solon. He laid the foundation for our mens rea concept two thousand years before the English discovered it in the classics.
Instead of absolute liability the law looked to specific underlying differentiating and causative factors. Punishment was proportional to the crime. You could not be hung or imprisoned for stealing a loaf of bread a la Draco or Victor Hugo. Preventing violence and maintaining public order were stated purposes of law. This was a huge achievement of sixth century BCE Athens!
The influence of Athenian democratic justice can be seen everyday in every courtroom in our land. We would not have that influence, however, but for the genius of another man coming some one hundred years after Solon.
Aeschylus was a poet, philosopher, soldier, and, like Solon, a fighter for democratic principles. Aeschylus’s genius lay in drama. He was the creator of tragic drama. He used his art as a weapon in the defense of law, and the peaceful resolution of conflict. During his time political upheaval threatened to sweep away constitutional reforms. Athens also had its Tea Party seeking to reverse progress and keep power within the Athenian oligarchy.
Amidst the constitutional crisis of 458 BCE Aeschylus produced the Oresteia, the greatest tragic drama in human history. Ironically, the play’s ending is not tragic: it nourishes hope.
The Oresteia is a window into the evolution of Athenian justice, the principles underlying its law, and the threats inherent in human passions. The play is a plea for democratic justice.
The third play of the trilogy is a courtroom trial in which the mental state of the defendant is central. It has all the elements of what today we call legal insanity. The staged trial with judge, prosecution, defense counsel, and jury of peers reflected the actual Athenian system established by Solon some one hundred years previously.
The Oresteia immortalized the message of democratic justice. This powerful drama kept alive the idea of humanism in justice: through the hardening and decline of the Roman Empire; through the submersion in the Dark Ages; through the rebirth of the classics in the Renaissance; to the British Isles; and to our courtrooms. The Oresteia became the vital voice of Solon’s justice that enabled it to survive.
The Athenian legal system served as a frame of reference for the codification of Roman law. Cicero was a Roman philosopher, statesman, lawyer, orator, and political scientist. He is also said to be a rejected lover of Cleopatra. He had absorbed the Greek legal system while living and researching in Athens. He returned to Rome and transfused the Roman codes with the Athenian humane values. He created the term Humanitas.
Recent translations of some of Cicero’s homicide defense cases cite Aeschylus’s Oresteia as an example of legal insanity. Athenian law contributed to the evolution of a great and complex Roman legal system. And the Italian scholar and poet, Petrarch, credits the development of the Renaissance in the 14th century to the rediscovery of Cicero’s writing. Cicero’s legacy also contributed to the Enlightenment of the 18th century.
Then as Rome deteriorated, civilization sank into the darkness of “the worst of times.” Justice seemed to be extinguished by societies ruled by the occult, greed, power, and raw vengeance. The Furies rose again and took over Justice. Magical thinking and belief in the supernatural buried Science. Mysticism, cloaked in religion, drowned awareness of scientific thinking–and compassion. Belief in demonology and witchcraft became a wild fire tool of aristocratic politicians and the priestly class. They used fear and malignant scape goating to exploit, oppress, and fuel a lust for power. Rational understanding was knocked comatose.
But Justice and Science were not dead. They lay dormant, hibernating in those literary treasuries of classical Greece and Rome, stored away in Islamic libraries and ecclesiastical archives. It has been a slow and fitful reawakening.
Threatened by the growth of Islam, the Eastern Church in Constantinople transferred the original Greek cultural masterpieces to safety in Rome. These classics, including Cicero’s writings, had been presumed lost for a thousand years, but had been hidden away in the bowels of churches. When Rome too was about to be overrun by Barbarians, the literary treasures continued their Odyssey from east to west, Italy to Ireland, Scotland, to the British Isles, and to the continent, and back to England with William the Conqueror in 1066. The foundation was laid for the founding of English Common Law between 1160 and 1270 CE.
Slowly English society developed in a more representative direction. An entrenched priestly class and residue from feudalism inhibited growth. But the adversary system, verdict power of the jury, and the concept of equality before the law reemerged from antiquity to see and shed light. With the growth of the adversary system in England the legal profession gained strength and gradually replaced the ecclesiastical jurists.
The last great ecclesiastical jurist, also a classical scholar, was Henry de Bracton, known for his recognition of psychological factors as important in law. He contributed to the slow rebirth of the concept of legal insanity. Author of On the Law of England, he is a link between Justice as developed in Athens and Rome and the evolving law in England.
After Bracton, the principle of intent again entered Justice. There was more recognition of “unsound mind” rather than witchcraft, and by the 14th century complete madness was a defense. By the 16th century the concept of non compos mentis, legal insanity, was further understood with the recognition there could be lucid intervals, an understanding that tends to get lost in our current courtrooms. Mens rea, guilty mind, or the awareness that one’s act is criminal, was made a necessary element if an act was to be considered a crime. Humanistic ideals were reborn with Justice at the center.
During the European Enlightenment, great new universities were founded – very different than their medieval ecclesiastic antecedents – and fed social institutions with a rediscovered appreciation for scientific curiosity. There was a return to seeking rational explanations for natural phenomena–back to those first Greek natural philosophers. Essentially rediscovering the wheel.
This was the beginning of the struggle against demonology and its modern derivative “evil.” In that struggle the ancient Greek idea of a rational approach to the understanding of nature, human nature, and society has been opposed by residua of our medieval legacy. The battleground has often been our courts where, since Solon’s and Aeschylus’s time, the nature of humankind is debated.
The warriors for rationality and their battleground cases resound through modern history. Johan Weyer confronted the law in 1572 maintaining confessions of witches were the result of mental illness. His views were dismissed as merely those of a physician. Mental illness was demonized, driving a wedge between psychiatry and the law that has not been completely bridged to this day. Yet the English jurists Coke, Hale, and the philosopher Francis Bacon were responsive to psychological developments, which they attempted to integrate with law, as Bacon’s above quote suggests.
Edward Coke was Chief Justice during Victorian times. Equality before the law, meaning even the King was subject too, was established. Of course no credit was given to Homer who raised the idea when he said that even Zeus had to abide by a natural moral law.
Although English Law continued to trail scientific growth, during the 18th and 19th centuries advances in psychiatric knowledge began to infiltrate. Scotland produced two great minds, one legal and the other psychiatric. Thomas Erskine had defended Thomas Paine and was considered England’s leading trial lawyer. Alexander Crichton (1763-1856) authored An Inquiry into the Nature and Origin of Mental Derangement.
His work focused on the influence of emotions on thinking processes. He contributed to the development of modern psychiatry. Crichton was the first to describe in accurate clinical detail what today we call Attention Deficit Hyperactivity Disorder, one hundred years before it resurfaced in the medical literature. And, more than a hundred years before Freud, he explained certain speech disorders by the psychological concept of association—the underlying meanings attached to word processes. He pointed out that Aristotle first described associative thinking. That was about two thousand years before Freud.
When in 1800 James Hatfield attempted to assassinate George III, Erskine was called to defend him. He called Crichton as his expert. Law and psychiatry were joined. They took the law into the complexities of mental illness and the relevance of delusions in legal insanity.
Forensic psychiatry was germinating, nurtured by developments in the psychological and neurosciences. William Cullen, a pathologist, published his study of insanity, and his students, Benjamin Rush in America and Pinel in France, extended his influence. Benjamin Rush, in addition to being one of the founders of our country, was instrumental in the humane treatment of the mentally ill.
Pinel, Pritchard, Esquirol and Isaac Ray were raising issues of the forensic implications of emotions. They focused on how intense emotion states can impair the ability to control behavior. But the English courts were still grappling with the issues of mental illness, reluctant to give up old notions of global dysfunction as the legal definition of mental illness in criminal cases.
Thomas Jefferson and John Adams referenced Edward Coke as they wrote our Constitution. The last 175 years has been a roller coaster. In 1838 the American psychiatrist, Isaac Ray, in A Treatise on the Medical Jurisprudence of Insanity sifted and synthesized the developing psychiatry and applied it to an understanding of criminal behavior. Ray took psychiatry into more complex and less readily knowable areas of the mind than the Hadfield case considered. His work led to the conceptualization of what he called “irresistible impulse”, of how distorted, diseased emotions can overwhelm rational thinking, sometimes in sudden explosive acts, but also over time with a gradual losing struggle to keep from doing what the rational mind abhors. He emphasized that “ the affective (emotional) as well as the intellectual” faculties are subject to derangement.” In other words, insanity can mean more than impairment of “knowing” right from wrong. A mentally ill person can know an act is legally and morally wrong, but be unable to keep himself/herself from doing it.
Ray also considered the complex problem of lucid intervals, simulated insanity, malingering, concealed insanity, suicide and the difficulty for juries in remaining objective about heinous crimes. He laid this out for all to read.
Ray’s American research implications reverberated back to London in 1843 at the trial of Daniel McNaughton, a paranoid schizophrenic, who had killed a British aide to the Prime Minister in an assassination attempt. The English Chief Justice had recently read Ray’s work on the role of delusions. He found McNaughton was not guilty by reason of insanity. The judge cited McNaughton’s paranoid delusions causing his homicidal act, and his inability to control his behavior. The acquittal struck a raw nerve in society, fuelling fear and threatening the sense of social order. It set in motion waves of opposition to the insanity defense and to psychiatry. Those waves still lap our shores.
The media storm moved Parliament and the Queen to overturn the judge’s decision resulting in what has come to be known as “The McNaughton Rules” stating that the test for legal insanity is “knowing an act is wrong.” The role of emotional illness and ‘irresistible impulse’ be damned. This has come down to us as the basic principle. It represents a regression to pre scientific times. Significantly, even though more modern justice intellectually recognizes “the inability to conform conduct to the Law,’ in actual practice McNaughton rules.
The struggle has been to bring scientific understanding of the mind into legal deliberations. The last 150 years has seen a turbulent struggle to solve this very old and complex problem of the passion of revenge in society.
In Washington in 1881 US Justice Oliver Wendell Holmes wrote in The Common Law 46, “It may be said, not only that the law does, but that it ought to make the gratification of revenge an object. The first requirement of a solid body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.”
The circle completes, from Athens, to Rome, to London, to Washington. But this leaves us in 2017, some 2500 years from Solon, 440 years from Johan Weyer and 175 years from Isaac Ray, still emerging from the Dark Ages, technologically enlightened, but with Justice partially mired in medieval myths and partisan politics, and only partly tamed. Who can predict how Justice will be served rationally in future?