oa Fundamina : A Journal of Legal History - Historiese oorsig oor die hantering van psigiatriese pasiënte met misdadige neigings

Volume 18, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



This article gives a historic overview of the origin and development pertaining to the management of accused persons in criminal trials and who suffered from mental illness or mental deficiency at the time when the offence was committed. What makes the issue complicated is that legal insanity cannot be equated with mental illness or deficiency, for legal insanity is a test of capacity for action and choice and it is a formulation designed to determine responsibility. Therefore it is not whether a person suffered from some form of mental illness but whether as a result of a mental illness, the person lacked discernment and control over her/his actions at the time he/she acted. The author traces back the origin of Anglo-American law to the Greek and Roman philosophies and legal systems. Subsequently developments are discussed which took place during the medieval period and amongst others the views of Henrici Bracton, Edward Coke and Matthew Hale are expounded upon. Furthermore attention is also given to the McNaghten rules, the Irresistible impulse rule, the Durham rule and the American Law Institute formula.

Regarding the insanity defense this article also addresses briefly the legal systems of a few selected countries (USA, UK, Canada, Sweden, Israel and South Africa) with divergent legal systems and it is revealing to reflect on the approaches of these systems and their own national identities.

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