by Alec Buchanan
Jessica Kingsley, 2000
Review by Jerome Young on Sep 8th 2002
Psychiatric Aspects of Justification, Excuse and Mitigation is a
scholarly work that tackles a broad subject but does so with brevity and
flair. Buchanan aims to critically
assess the means Anglo-American law provides for dealing with criminal acts in
which the perpetrator suffers from a mental disorder and is, therefore, not
blamed or not punished as severely.
Specifically, he examines the ways psychiatric factors are used in the
courts to excuse, justify, or mitigate against unlawful acts. Because the book is short, and because the
subject matter is wide, it is quite dense.
Yet, he writes with such clarity and concision that it is an eminently
readable book. Buchanan addresses his
subject through a critical, i.e. philosophical, perspective and draws on a
wealth of literature as well as precedent setting legal cases to argue that the
current legal provisions need revision.
Even though Buchanans book is argumentative, it is not dogmaticin
fact, his suggestions seem quite sensible.
begins Chapter One (entitled Preliminaries) by addressing the issue of free
will and determinism in the law. He
concludes that free will is a necessary starting point in the law because
without it the concept of responsibility would make no sense. In the remainder of the book he
systematically examines the principles that led to the development of special
court arrangements (i.e. legal and medical devices) for mentally disordered
individuals who commit crimes because in these instance individuals are not
responsible for what they do. The
general question he addresses is: Why do some people benefit, and others do
not, from these legal and medical devices?
Two and Three focus on explaining the terms justification, excuse and
mitigation. Buchanan gives definitions,
both in terms of the law and in terms of common usage, and attempts to clarify
conceptually the significance of the terms.
He provides copious references to the literature, psychiatric and
philosophic, as well as a plethora of legal cases that served to set precedents
in this area of Anglo-American law. To
explicate the term justification, Buchanan examines works by jurisprudential
theorists and particular judgments made by judges in legal cases. After a careful analysis, he concluded that
there was an inconsistency between jurisprudential theory and the everyday
practice of judges. In examining the
term excuse, he looked critically at several different philosophical
theories, those advocated by Bentham, Kant, and Hume, as a way to show the
varied approaches one can use to excuse in the criminal justice system. With mitigation, Buchanan looked at the
general factors that can influence sentencing, and specifically examined the
issues of provocation and diminished responsibility. In all instances, importantly, he backed up his analysis and
criticisms with references to legal cases.
For this reason, his work is informed and, on the whole, even
Four addresses the question: Can mental states excuse? He proceeds to examine how psychological
conditions can affect mental processes because we excuse on the basis of
internal factors. He was primarily
concerned with how these conditions affect capacity, opportunity, and the
soundness of the agents character because if these conditions are to exculpate
a person, they must impair that persons ability to make a choice. Some of the general themes he examined are
consciousness, emotions, impulsiveness, thought, and belief. Buchanans analysis drew extensively on
psychiatric sources and he discussed many mental disorders, such as dissociative
states, personality disorders, depression, schizophrenia, and OCD, that may
affect a persons ability to make a choice.
Five looks at how Anglo-American law has traditionally excused certain acts
deemed to be the result of a persons disordered mental state. He looked at the insanity defense,
irresistible impulse, the product test, and automatism. He spent a considerable amount of time
discussing the nature of voluntary and involuntary acts since this is really
the crux of whether a person can be excused or not. Chapter Six critically assessed these provisions and looked at
the drawbacks. He argued that the
current laws do not adequately account for all the types of excuses that
different mentally disordered individuals may offer in a courtroom
setting. Finally, in Chapter Seven, he
considered alternatives to the current provisions and examined the possibility
of doing away with the insanity defense (what he calls the abolitionist
position), looked at the proposals of the Butler Committee, and then considered
the nature of wanting, a theory derived from the philosophical works of H.G.
Frankfurt. His suggestions are sensible
and, as would be expected from such a consummate scholar, he presented persuasive
reasons to back up his position.
critique of the legal provisions for mentally disordered individuals drew on
many fine resourcesphilosophical, jurisprudential, legal, and psychological
and psychiatricand I found myself going back and forth in the book checking
references constantly. The book is a
fine example of good research and philosophical even-handedness. It provides copious references to important
legal cases as well as other works relevant to the conceptualization of the
current provisions concerning the psychiatrically disordered. For this reason, his work is a useful
resource for those unfamiliar with the legal and philosophical bases for the
legal provisions in the Anglo-American tradition. But more than that, his work is a provocative assessment of the
current provisions governing the distribution of punishment for disordered
individuals. Buchanans book would be
of interest to anyone who would like to know about the origins of
Anglo-American juridical processes concerning psychiatric matters and would be
of interest to those who are especially interested in reading a critique of
these laws. It is a finely structured
work, well articulated, and provocative.
I have only the highest of praise for his accomplishment. Anyone interested in learning about this profoundly
important topic would find this book a worthy place to begin.
2001 Jerome Young
Jerome Young is a foreign lecturer at Keio
University SFC (Kanagawa, Japan) and a post-graduate student in the Philosophy
of Mental Health program at the University of Warwick (England).