Utility and social control
In the 1890s, during the preparation of the Criminal Code of 1902, new impulses with origins in European criminal-law philosophy had an effect on Norwegian thinking within the field of criminal law. The Criminal Code Commission of 1885, with Professor, later Prosecutor General Bernhard Getz (1850 – 1901) as its chairman and driving force, wished to place greater emphasis on an individual assessment of the delinquent when choosing an appropriate form of reaction. The differentiated criminal prosecution system should serve several purposes:
Assist the treatable person
Deter those who do not need any treatment
Neutralise the incorrigible
On the basis of such considerations of utility, exoneration on the grounds of insanity would give rise to particular problems. Lacunae would occur in the system if the «lunatics» or the «semi-lunatic and wicked» went scot-free. The character of delinquents ought thus to be studied, and the concept of «mental capacity», taken from Russian criminal law, was introduced. The psychiatrists thus had to be instructed to assess whether the delinquent had «insufficiently developed» and/or «permanently impaired» mental capacity. This would entail longer sentences and infer an increased protection of society.
Police Surgeon Paul Winge (1857 – 1920) was adamantly opposed to being presented with such questions, since he was convinced that they belonged to the realm of metaphysics, and not of the natural sciences. «If one wants to have psychiatrists as experts, then they must be presented with psychiatric issues. If one does not seek a solution to such questions, but on the contrary, to metaphysical ones, then one should consider summoning philosophers, or, as they rather should be called, metaphysicians. (...) Of the abovementioned legal-metaphysical problems concerning the properties of mental capacity, a psychiatrist has no better understanding than other people.»
The rules for criminal prosecution followed today stem from the 1990s and originate in the public study Rules for insanity in criminal proceedings and special reactions (2). With our present rules, we are back to the statute of 1902. Today too, proposals have been put forward to allow the «semi-lunatic and wicked» – often referred to as the «bothersome» – to be placed under compulsory mental health care. This leads us back to the practice of preventive detention of the late 1920s. I have therefore commented on these regulatory amendments on a previous occasion, under the heading «Nothing new under the sun» (3).
Even though the debate in the early 1990s was similar to the corresponding debate in the years 1885 – 1902 in terms of the content and arguments used, it was not as analytical. Neither was it conducted with the same depth of knowledge, nor with the same view to issues of principle, such as the justification of punishment, the basis for assessing sanity and the quality of assessments as the debate that took place a hundred years ago.
Neither moral philosophy nor jurisprudence – and one could add forensic psychiatry – are prepared to provide generally valid and permanently sound answers. This has not improved over the last hundred years. During the intervening century we have witnessed the emergence of modern evidence-based medicine, including neurology and biologically based psychiatry, psychoanalysis, behavioural sciences and other medical and psychological theories that explain human behaviour. Furthermore, throughout this century the social sciences, such as sociology, criminology and sociology of law, have studied correlations between delinquency, penal reactions and social conditions.
Apparently, we have much more knowledge of the body, the mind and the relationship between individuals and society today, compared to what we had only hundred years ago. This knowledge does not, however, seem very useful for providing valid and lasting answers to the wide and complex issues of moral philosophy that are raised by the Breivik case.
Breivik can be held to be criminally insane and sentenced to compulsory mental health care as a special reaction. In principle, this is a reaction without a pre-specified time limit, and the sentence may be constantly renewed. If he is held to be sane, it is reasonable to believe that he will be sentenced to preventive custody, which is another special reaction without a particular time limit. He is thus likely to remain in Ila Prison, either as a prisoner or as a patient. This is comparable to the M’Naghten case, where being «exonerated» made no difference. There is reason to believe, however, that in the aftermath of the Breivik verdict – irrespective of the outcome – new demands will be put forward regarding the assessment of the relationship between punishment and treatment of (in)sane criminals. Such a review is, in my opinion, most welcome.