April 1999 ; Vol. 24, No. 2, pp. 12-14
Isaac Ray Corner : A history of justice: origins of law and psychiatry
Walter A. Bordenn, MD
'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
( Good Works On Earth Editor's Insertion on 20061016, for your truer clarity :
Sir Francis Bacon (1551-1626) : Baconian Science : born to priviledge : entered Cambridge
at age 12 : decribed tutors as "men of sharp wits, shut up in their cells [with] Aristotle, their dictator" :
rose to become Lord Chancellor of England : thought, by some, to be author of Shakespeare's plays
in Novum Organon (1620), presented clearly (but didn't invent) idea that experiment and research are
the sole bases of science and philosophy; delineates principles of the inductive scientific method; the
only knowledge of importance is empirically rooted in the natural world; a clear system of scientific
inquiry would assure man's mastery over the world; "Knowledge is power" and "There are and can be
only two ways of searching into and discovering truth. The one flies from the senses and particulars to
the most general axioms: this way is now in fashion. The other derives axioms from the senses and
particulars, rising by a gradual and unbroken ascent, so that it arrives at the most general axioms last
of all. This is the true way, but as yet untried."
Good Works On Earth announces Francis Bacon's true way has now been tried and proven.
The axioms you will see were arrived at and perceived to exist only after long ascent of
research and results of the idea of working with the Lexigram, beginning with attempting
to disprove it. )
Our western legal system evolved from the need
to tame wild justice that was tearing apart early civilization.
Justice as we know it dates back to sixth century B.C. Athens with the genius of Solon. Poet, philosopher, soldier,
merchant, practical economist as well as social critic he came to power in revolutionary times with a mission to put an
end to the cycles of retaliatory violence that had plagued Greece for centuries. Athens wanted peace and order, and
turned to the man who had communicated his vision of social order and the need for justice through his poetry.
Solon laid the foundation for a democratic system of justice through the first of a series of constitutions that gave
birth to democracy. He instituted changes and established a legal code thate brokered a non-violent social revolution
and transformed the passion for vengeance into a justice system. This system was based on rule of and equality
before the law, a redistribution of power through law, and resolution of conflict through a public court system with
juries of peers in an adversarial process before the presiding judge. Religion was separated from the administration of
justice for the first time in human history. Solon converted private revenge into public justice. He harnessed wild
justice and made it a central part of democracy.
These developments occurred in the context of the birth of science that recognized emotional human nature as a
part of nature, to be understood by natural means. Psychological concepts were incorporated into the law.
Understanding what was in the mind of the accused became a priority. Manslaughter and intentional homicide had
been differentiated even earlier under Draco, but intent and motive became more important issues under Solon - long
presaging and laying the foundation of the mens rea concept. Instead of absolute liability the law looked to specific
underlying differentiating factors and punishment was proportional. Preventing violence and maintaining public order
were stated purposes of law. This was 6th century B.C. Athens.
The influence of Athenian democratic justice can be seen today in every courtroom in our land. However, we
would not have that influence but for the genius of another man coming some 100 years after Solon. Aeschylus was
also poet, philosopher, soldier, and like Solon, a fighter for justice, but his genius lay in drama. As Solon was creator
of democracy, Aeschylus was creator of tragic drama and he used his art form as a weapon for democracy, law, and
the peaceful resolution of conflict. During his time political upheaval threatened to sweep away democratic justice.
Amidst that first crisis in 458 B.C., Aeschylus produced the Oresteia, the greatest tragic drama in human history.
It is a window into the evolution of Athenian justice, the principles underlying its law, and the threats to justice
inherent in human passions. The play is a transcendental plea. for democratic justice. The third part of the trilogyIts
final act portraysis a courtroom trial in which the mental state of the defendant is central with all the elements of what
today we call legal insanity. The Oresteia, immortalized and carried the message of justice through millennia. Thise
powerful drama kept alive the idea of humanistic justice, through the eclipse of the Roman Empire and submersion in
the Dark Ages, through the Renaissance when the classics resurfaced, 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 first codification of Roman law. Greek drama,
and the sociological, scientific and, psychological principles underlying ancient law played a role in the evolution of a
great and complex Roman jurisprudence. Then as Rome declined and fell, civilization sank into the darkness of 'the
worst of times' and justice seemed to be extinguished by societies ruled by greed, cruel power, and raw vengeance.
The Furies retook Justice. Primitive magical thinking and belief in the supernatural buried the scientific attitude. Then
dDemonology and witchcraft metamorphosed into a malignant scapegoating preoccupation that became twin to the
Plague and renderinged human understanding comatose.
But Justice and Science lay dormant, hibernating in those literary treasuries of classical Greece and Rome, stored
away in Islamic libraries and Eecclesiastical archives. It has been a slow and fitful reawakening.
Classical heritage passed to England
Threatened by the Moslem infidel, the Eastern Church transferred to the safety of Rome the original manuscripts
of the Greek cultural masterpieces that had been presumed lost for a thousand years. Classical heritage passed from
east to west, Italy to Ireland, Scotland, the British Isles and the Continent, laying the foundation for momentous
changes resulting in the founding of English common law between 1160 and 1270.
As English society developed in a more representative direction, the adversary system, verdict power of the jury,
and the concept of equality before the law emerged. 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 scholarscholar was Henry de Bracton known for his recognition of psychological factors in legal issues and for
contributions to the then embryonic insanity defense. Author of the treatise On the Law of England, he is a link
between justice as developed in Greece and Rome and the evolving jurisprudence in England.
After Bracton, intent again entered considerations of justice. There was more recognition of 'unsound mind' vis a
vis witchcraftvis witchcraft,, and by the 14th century complete madness was a defense. By the 16th century the
concept of non compos mentis, legal insanity, was complex with the recognition there could be lucid intervals, - an
observation sometimes lost in our courts. Humanistic ideals were reborn and with justice at the center.them a more
humane civilization and at the center the beginning of more humane justice. Universities were founded, feeding social
institutions with a rediscovered appreciation for scientific curiosity. There was a return to seeking rational explanations
for , that natural phenomena. have rational explanations, that nature includes humankind.
This was the beginning of the struggle against demonology and its more modern derivative, 'evil'. In that
struggle the ancient Greek ideal of a rational approach to the understanding of nature, humankind, and society has
been opposed by residua of our medieval legacy. The battleground of that struggle has oftentimes been our courts
where, since Aeschylus' time, the nature of humankind is debated.
The warriors and their battlegrounds, cases resound through modern history as well as ancient. Johan Weyer
confronted the law in 1572 maintaining confessions of witches were the result of severe 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 Coke, Hale, and Francis Bacon were responsive to
psychological developments, which they attempted to integrate with 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 Cricghton
authored An Inquiry into the Nature and Origins of Mental Derangement. His work focused on the influence of
emotions on thinking processes and he had an influence on the contributed to the development of modern psychiatry.
When in 1800 James Hadfield attempted to assassinate George III, Erskine was called to defend him, and he
callinged Cricghton as his expert. Law and psychiatry were joined. They took the law into the complexities of mental
illness focusing on the relevance of delusions in legal insanity.
Forensic psychiatry was germinating, nurtured by a spectrum of developments in the psychological and
neurosciences. William Cullen, a pathologist, published his study of insanity and his influence was extended by his
students extended his influence, to America by Benjamin Rush in American and to France by Pinel in France.
Pinel, Pritchard, Esquirol and Isaac Ray were raising issues of the forensic implications of the impact of emotions on
the ability to control behavior. that were first heard in the Oresteia. But the English courts were still grappling with the
issues of mental illness, reluctant to give up old notions of global cognitive dysfunction as the legal definition of
mental illness in criminal cases. The cases of Arnold and Ferrers are examples.
The last 150 years
In 1838 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 as well as the intellectual facultiesintellectual faculties are subject to
derangement.' He also considered the complex problems of lucid intervals, simulated insanity, concealed insanity,
suicide, and the difficulty for juries in remaining objective about heinous crimes. He laid this out for all to read.
It reverberated in 1843 at the trial of Daniel McNaughton. The acquittal struck a raw nerve in society, the law,
and psychiatry, fuelling fear and threatening the sense of social order. It set in motion waves of opposition to the
insanity defense and psychiatry, interspersed with attempts to reconcile justice with psychiatry, to find ways of
bringing 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 revenge in society.
Justice Oliver Wendell Holmes in 1881 in The Common Law 46 wrote: '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 sound 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 approaching the year 2000, a some mere 5400 years
from Johan Weyer, and 150 from Isaac Raystill, still emerging from the Dark Ages, technologically enlightened, but
with justice just partially tamed.