Stern's Insanity

Beloved colleague Craig Stern has recently uploaded a piece to SSRN: The Heart of Mens Rea and the Insanity of Psychopaths (abstract here). I highly recommend it. Stern does an excellent job of explaining why psychopaths--those who lack sense of the normative nature of more rules--are not thereby excused from liability under the criminal law.

Not surprisingly to those familiar with the history of the Western legal tradition, Christian notions of the relationship of the mind to the will and both to actions underlay both the legitimacy of insanity as a defense but also psychopathy's exclusion. Defective understandings, not corrupted wills, reduce or even exculpate criminal liability. It's not an accident that criminal responsibility requires mens rea and thus that many forms of mental illness are defenses to the necessity of a "criminal mind." Conversely, the law does not require proof of a criminal will and thus its absence, as in a psychopath, is not a defense.

All in all Stern's is a fine piece of doctrinal and historical analysis with more than a fillip of current theories of the mind. And a fun read to boot.