The Insanity Defence in Criminal Law: Strategies of Choice or of Constraint?

Abstract

Criminal liability rests upon the capacity of the person to distinguish between what is legal and illegal. Loss of this capacity, through insanity for example, stops the person to be held liable before a court of law. Only medical treatment will be sought. Such legal strategy expresses a philosophical choice most European legal systems made at the end of the 18th century and which is not without its own doubts. Yet, most of the issues raised about the insanity defense in English law focus on the meaning of insanity. A comparative approach with French law sheds light on the legal strategy adopted to determine what is legal and illegal: the practicalities of the procedural system play an intricate part in formulating the strategy in criminal law.