"Revenge is a kind of wild justice, which the more manís 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
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 Solonís 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 Aeschylusí 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 Englandís 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 studentsstudents 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. ÖThe first requirement of a sound body of law is,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 somemere 5400 years from Johan Weyer, and 150 from Isaac Raystill, still emerging from the Dark Ages, technologically enlightened, but with justice just partially tamed.