During his summation at the Old Bailey trial of Peter Sutcliffe, Mr Justice Boreham felt called upon to remind the jury that they were there to judge Sutcliffe, not the flock of psychiatrists called to testify as to his mental condition. The jury could have been forgiven for believing that psychiatry, not Sutcliffe, was in the dock, for during the trial, the profession and its discourse were subjected to merciless inquisition. The jury’s verdict implied the professionally mortifying conclusion that the doctors had indeed been duped. Yet if Sutcliffe fooled the doctors, he also appears to have taken in the Attorney-General, who accepted his plea of diminished responsibility.
Law and medicine alike found their discourses severely tested. Sutcliffe’s capacity to live two hermetically-sealed lives, one the reliable lorry-driver, friendly uncle and affectionate husband, the other the late-night stalker of Chapeltown, presented the problem of what constitutes ‘diminished responsibility’ in almost classic form. The plea itself stretched common sense. To the binary classifications of the common-sense mind, behaviour is either responsible or it is not. ‘Diminished responsibility’ appears to qualify the unqualifiable.
It is difficult to think clearly about a case like Sutcliffe’s, so thoroughly does it challenge the belief that there are limits to what human beings can conceive and do, so deeply does it test our understanding of words like ‘rational’ and ‘responsible’. We need all the help we can get with problems like this, not simply to understand Sutcliffe, but to understand ourselves. Such help is at hand in a historical work, published by chance during the trial. Roger Smith’s history of the conflict between medical and legal discourses in the insanity trials of the 19th century is ‘relevant’ in a way he could never have anticipated or, in this tragic instance, have wished. His book is more than a history of trials, a sociology of the 19th-century psychiatric profession and a history of their claims to be a science. It is also an account of the origins of the essentially antagonistic ways, one legal, the other medical, in which we continue to understand the key terms of our moral vocabulary: guilt and responsibility.
Before 1800, English juries usually decided on the sanity of defendants without the advice of testimony from the medical profession. By the 1840s, prison doctors, asylum superintendents and professional ‘alienists’ in private practice were particularly called upon in murder trials to pronounce on the mental competence of defendants. As Roger Smith shows, the doctors’ attempt to secure the status of expert before the court – that is, to have their ‘opinions’ taken as ‘facts’ by juries and judges – formed part of a campaign to establish hegemony over the whole diagnosis, description and treatment of the insane. They secured control of the new network of county asylums and established themselves at the decision points in committal proceedings. Among the public at large they sought to replace the old language of ‘madness’ with a new discourse featuring terms like ‘moral insanity’, ‘irresistible impulse’ and so on. The great asylum doctors like Conolly and the great university teachers like Maudsley advanced the claim that their profession could both cure insanity through ‘moral treatment’ and explain it with a resolutely physical account of its causation.
Medicine’s attempt at hegemony over treatment and the public discourse has already been charted by Andrew Scull, Michel Foucault and David Rothman. Roger Smith’s contribution is to show that the legal conceptions of mens rea and free will provided the basis for resisting medical claims to hegemoney, not only within the courtroom, but in ‘public opinion’ at large. The ‘medicalisation’ of the idea of insanity seemed to threaten values synonymous with Victorianism itself: will-power and moral responsibility for action. Against those modern experts who devised the concept of ‘diminished responsibility’ as a via media between medical and legal discourse, Smith insists that no such via media was, or is, convincing. The finest parts of his book demonstrate the incompatibility of the legal and medical conceptions of insanity as discursive systems.
Legal discourse was voluntarist and idealist in its conception of a rational mind and will capable of countering the pressure of passion by understanding of good and evil. Insanity was defined, according to the M’Naghten Rules of 1843, as an inability ‘to know the nature and quality of the act’ as well as an inability to know that it was wrong. Smith shows that the judges who made conscious understanding of right and wrong the criterion in the M’Naghten Rules were concerned that a loose medical conception of ‘irresistible impulse’ and ‘moral insanity’ had allowed the would-be assassin of Queen Victoria, Edward Oxford, to escape the gallows three years previously.
The doctors, for their part, criticised the M’Naghten Rules for failing to take any account of the unconscious. What, they asked, was the law to do with murderers who were rational, conscious of wrong-doing and yet incapable of resisting unconscious impulse? Alternatively, what was the law to make of killers who were conscious of their acts yet so dead to their consequences that they could write in their diaries, as the so-called Alton murderer was supposed to have done: ‘Killed a little girl; it was fine and hot.’
These were the cases, where lucid and rational judgment was yoked to ‘irresistible impulse’, which brought medical and legal discourse into sharpest conflict in Victorian courtrooms. In the great trials of Oxford, Buranelli and ‘the Greenwich murderess’, the stakes were enormous: the prestige of an ascendant but suspect profession, the scientific viability of such treasured articles of Victorian faith as will-power and conscience, and, last but by no means least, the very lives of the defendants. As long as murder was capital, a successful medical defence could save a victim from the gallows.
As Roger Smith makes clear in his restrained but fascinating account of the trials of somnabulist fathers who decapitated their children, likeable nannies who slit the throats of their infant charges and aggrieved clients who beat their lawyers to death in the streets, the crucial difficulty in the insanity defence lay in its circularity. Alienists were savaged in cross-examination for taking the horror of the act itself as proof of the insanity of its perpetrator. An ‘irrestible impulse’, prosecution counsel would snarl, was simply an impulse which had not been resisted. Yet the great Victorian lawyers, such as James Fitzjames Stephen, found it equally difficult to chart a lawyer’s path to the heart of criminal intention. Stephen’s rule, that ‘the only possible way of discovering a man’s intention is by looking at what he actually did,’ was no less circular than the doctors’.
The real weakness of psychiatry, both then and now, when forced to argue its case on the terrain of law, was that it was capable of diagnosing states of mind but not of determining the causes of acts. Repeatedly, alienists succeeded in demonstrating an antecedent pathology in a defendant without being able to prove that this condition was either operative or determining on ‘the particular night in question’. In effect, the law required of psychiatry that it be what Barthes, in another connection, has called ‘the impossible science of the individual’. This, psychiatry could not be, but its prestige as a discourse, its status in the courtroom, depended on the claim that it could attribute causation to individual acts. Thus drawn onto legal ground, it inevitably overplayed its hand and fell victim to the scorn of the law. Roger Smith cites the occasion when a hapless mid-19th-century defence counsel insisted that his witness was an ‘expert in madness’. Judge Bramwell exploded: ‘Experts in madness! Mad doctors! Gentleman, I will read you evidence of these medical witnesses – these “experts in madness” – and if you can make sane evidence out of what they say, do so; but I confess it’s more than I can do.’
Although judges such as Bramwell sought to cut through medical jargon with bluff common sense and instructed juries accordingly, the juries themselves often returned verdicts which announced that common sense itself was baffled by the conflict between the claims of the law and the claims of medicine. Smith cites one verdict in particular which drew guffaws from the public galleries when it was announced: ‘We find the prisoner guilty of murder; we do not think he ought to be acquitted on the ground of insanity; but we recommend him to mercy because, in his case, we find there were strong predispositions to insanity.’
If the common sense of juries was often no better able than the expertise of doctors and lawyers to penetrate the intrinsic opacity of defendants, this was so, Roger Smith convincingly argues, because both common sense and expertise were organised by binary categories, sanity/insanity, responsible/non-responsible, which were simply of no use in cases where behaviour of startling enormity was combined with a capacity for rational judgment. Yet these binary oppositions could not be jettisoned without calling into question the constitutive categories of Western thought itself: mind versus body, will versus passion, nature versus reason, free will versus determination. Medicine spoke the language of nature and necessity, the law the language of will and freedom. Neither had words enough for that impenetrable middle ground where murderers lived, where indeed most of us live.
Smith would have us ponder the possibility that there is no ‘scientific’ via media capable of reconciling these languages of medicine and law. Medical discourse has no place within it for free will: legal discourse no place for unconscious motive. Juries of ordinary men and women must continue to struggle with claims which no expertise can resolve.
In the wake of such an impasse between legal and medical discourses as was revealed in the Sutcliffe case, it is tempting to believe that simple moral feeling should be able to sort out the tangles which baffle experts. Yet there are snares in feeling no less than in expertise. After the Sutcliffe verdict, one of the mothers of the victims said, from a sense of horror that no one would gainsay, that the murderer of her daughter deserved to be sealed away in a bare cell for the rest of his days. He was, she said, no better than an animal.
While it is a cold business to point out contradictions in anyone’s feelings, it must be said that our right to punish Sutcliffe depends on the presumption that he is a man responsible for his acts. The law does not punish animals. On the other hand, if we wish to consider man an animal, we must be able to think of a species in nature which engages in gratuitous, non-utilitarian taking of life among its own kind. It has been said with justice that the old Latin adage, man is wolf to man, is unfair to wolves. We cannot have it both ways. We must recognise him as one of our own kind.
As Roger Smith points out in this wise book, when we call certain murderers animals, we are really expressing our conviction and hope that a persistent and uncontrolled desire to take human life does not form part of human nature. Figures like Sutcliffe, like the ‘Greenwich murderess’ of a century ago – these ‘idols of fear’, as Roger Smith calls them – announce the demise of the idea of limits to human nature, yet time and again, we insist against the odds that there are some acts beyond the pale of human possibility. I am reminded of an essay by Andrei Sinyavsky on Dostoevsky’s House of the Dead, in which Sinyvasky argues that in his Siberian exile Dostoevsky learned among the guards and convicts that ‘human nature no longer had any fixed dimensions. Human beings could no longer be called either good or evil ... All of these categories remained meaningful when applied to individual actions, but for the type in general they had lost all sense.’
There seems no act of barbarism so vile that it has succeeded in destroying our belief that there are, not merely should be, some limits to human nature. The idea of human nature, like the idea of responsibility, as Roger Smith demonstrates so well, is the assertion of hope against experience, faith against fact. Both ideas are the necessary fictions we create to sustain the mutual confidence necessary for collective moral life.