The Matter of Forensic Psychiatry: A Historical Enquiry

Since antiquity, some men have not been considered accountable for their actions when they transgressed the law, and were exempted from legal penalties, or given lesser ones. Why? The rationale for legal exemption has varied over time. So have the labels assigned to such lawbreakers, and even the personnel involved in the labelling process. For centuries, settling the question of deviant mental states of relevance to the court seemed relatively unproblematic. It was thought that personal acquaintance would easily discover such states of mind and the court could then be notified. It was not until the nineteenth century that western society felt a need to regulate this problematique. As a result, or as a precondition for this process of settling the question of legal accountability, the matter came to be construed in part as a medical problem. Physicians, and later psychiatrists, came to be regarded as possessing specific knowledge in this area which qualified them to judge a person’s legal accountability. Personal knowledge of the deranged defendant was supplanted by professional knowledge of sanity and insanity as the basis for authority on the matter of accountability. This essay seeks to investigate how the question of legal accountability became transformed into a matter of medical authority, based on the case of Norway. The study involves an understanding of the relationship between forensic psychiatry and its disciplinary neighbours, jurisprudence, medicine and theology, and sensitivity to the language employed, the shifting terms used, and the changing meanings of those same terms. I believe that legal and medical matters such as these are largely shaped from below—that the specific encounter between a defendant, his judge and the medical expert is as important as the procedures detailed in authoritative texts by distinguished scholars. From this vantage point it is as interesting to explore events in marginal societies as to investigate developments in recognized centres of intellectual and professional advancement. Therefore my study rests on two not very extraordinary legal cases from Norway; two undistinguished murderers who faced the courts and their associated experts in the nineteenth century. But before presenting the cases, I will briefly outline current international historical research in this field.