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Knowing it when we see it: ‘Madness’ and crime

By Arlie Loughnan


One of the most high profile court cases concerning ‘madness’ and crime has concluded. In a unanimous decision, the Oslo District Court in Norway has convicted Anders Behring Breivik of the murder of 77 people in the streets of central Oslo and on the island of Utøya in July 2011. Breivik’s conviction was based on a finding that he was sane at the time of the killings. He has been sentenced to 21 years in prison but it is possible that he will be detained beyond that period, under a regime of preventative detention.

As is well-known, Breivik faced trial for multiple counts of murder, following gun and bomb attacks resulting in mass killing of adults and children. Since his apprehension, Breivik has admitted planning and carrying out the killings, and is on record as saying that they were necessary to start a revolution aimed at preventing Norway from accepting further numbers of immigrants. In a strange twist, the court’s verdict is a victory for the defence; they had been instructed by Breivik to argue that he was sane. The prosecution had argued that Breivik was insane.

The issue at the centre of Breivik’s trial was whether he was criminally responsible for the killings. If he was insane at the time of killings, he was not criminally responsible. Criminal responsibility concerns the capacities — cognitive, volitional and moral — that an accused is both assumed and required to possess. Legal principles and practices, like a criminal trial and criminal punishment, depend on these capacities.

The Breivik trial brings the complex issues surrounding criminal responsibility into sharp relief. It prompts us to ask how we ‘know’ when someone is not criminally responsible.

Media reports indicate that Brievik had been examined by a total of 18 medical experts. Some of these experts concluded that he met the legal test of insanity, which, in Norway, requires that he acted under the influence of psychosis at the time of the crime. But Breivik himself disputed this diagnosis, claiming it is part of an attempt to silence him and stymie his message about ‘saving’ Norway. Other medical assessments concluded that Breivik was sane at the time of the offences, his actions motivated by extremist ideology not mental illness. The judges reached the same conclusion.

Perhaps this difference of opinion among expert is not surprising. Not only is the process of diagnosing a mental disorder complex, determining whether a disorder had a relevant effect on an individual at a specific point in time, is notoriously difficult. At what point, if any, does ideologically-driven fanaticism become ‘madness’?

And legal opinion may differ from medical opinion on such a question. Even if lawyers and medics share a language around mental incapacity, what is medically significant may not map directly onto what is significant in law. A prominent example here is personality disorder (a well-recognised mental disorder), but in the criminal law of England and Wales, not one that can ground an insanity defence.

The question of evaluating criminal responsibility becomes more complex when we take into account the other player present in some criminal courtrooms — lay decision-makers. These actors (archetypally, the jury) in the courtroom drama have a lay knowledge of mental incapacity that, when contrasted with expert knowledge, we can define as the socially-ratified but unsystematised attitudes and beliefs about mental incapacity held by non-experts.

Taking this further, we would need to acknowledge that, when it comes to ‘madness’, legal actors — judges, magistrates, prosecutors, and defence counsel — are lay people too. Even in the absence of a jury (as in the Breivik trial), lay knowledge still forms a component of the mix of knowledges brought to bear on evaluations of mental incapacity. This status as lay vis-à-vis knowledge of mental incapacity is not to deny legal actors their status as experts vis-à-vis legal practices and processes. Rather, it is to acknowledge that both non-expert and expert knowledge is invoked in insanity trials.

It is against this mixed knowledge backdrop that meanings are produced around mental incapacity. Particular aspects of context in which the evaluation takes place — in Breivik’s case, perhaps his history of involvement with mental health services, the extreme nature of his offence, his idea of performing a ‘duty’ to his country, and perhaps even his own vehement rejection of the label that would have seen him subject to treatment rather than punishment — are assessed in a context marked by different knowledges of mental incapacity.

This brief discussion hints at a dilemma for courts and law reformers working in the area of ‘madness’ and crime. Different sets of knowledge are brought to bear on the adjudication of criminal responsibility. Although expert medical knowledge of ‘madness’ may carry greatest social clout, its dominance in the criminal courtroom is not unchallenged. Indeed, we could say that it is under constant challenge in that context, evidenced by the whiff of illegitimacy (was he or wasn’t he?) that seems to linger in cases such as that of Anders Behring Breivik.

Dr Arlie Loughnan is a Senior Lecturer in the Faculty of Law, University of Sydney. She is the author of Manifest Madness: Mental Incapacity in Criminal Law (Oxford, 2012).

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