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‘In a Kind of Mad Way’: A Historical Perspective on Evidence and Proof of Mental Incapacity

Melbourne Univiersity Law Review, Forthcoming

Sydney Law School Research Paper No. 11/90

19 Pages Posted: 7 Nov 2011  

Arlie Loughnan

The University of Sydney Law School

Date Written: November 6, 2011

Abstract

This article examines the evidential and procedural aspects of claims based on mental incapacity in English courtrooms in the ‘long’ eighteenth century. It employs a three-dimensional frame the author has termed ‘manifest madness’ to analyse how such claims were articulated and elaborated at trial in this period. This analysis reveals first, the substantive significance of the accused’s conduct, second, the part played by ordinary people and, third, the role of collective knowledge of madness in evidence and proof of mental incapacity for criminal law purposes. By reference the law on what would now be called unfitness to plead, automatism and intoxication, this article demonstrates the utility of the ‘manifest madness’ frame for understanding the evidential and procedural practices attendant to mental incapacity claims in this period. The article considers the insights this historical analysis provides into current criminal process as it relates to proof of mental incapacity.

Keywords: criminal law, legal history, mental incapacity, evidence and proof

JEL Classification: K10, K14, K30

Suggested Citation

Loughnan, Arlie, ‘In a Kind of Mad Way’: A Historical Perspective on Evidence and Proof of Mental Incapacity (November 6, 2011). Melbourne Univiersity Law Review, Forthcoming; Sydney Law School Research Paper No. 11/90. Available at SSRN: https://ssrn.com/abstract=1955656

Arlie Loughnan (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
+61 2 9351 0246 (Phone)
+61 2 9351 0200 (Fax)

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