A New Interpretation of the Modern Two-Pronged Tests for Insanity: Why Legal Insanity Should Not Be a 'Status Defense'

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Abstract

Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a 'status' defense. If Moore is right, then the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore's critique and his alternative approach. In this paper I argue that Moore's status approach to insanity is either under- or overinclusive. A new interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the 'normal' defendant. This interpretation avoids Moore's criticism of the modern tests as well as the pitfalls of the status approach.
LanguageEnglish
JournalNetherlands Journal of Legal Philosophy
StateE-pub ahead of print - 2018

Cite this

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title = "A New Interpretation of the Modern Two-Pronged Tests for Insanity: Why Legal Insanity Should Not Be a 'Status Defense'",
abstract = "Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a 'status' defense. If Moore is right, then the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore's critique and his alternative approach. In this paper I argue that Moore's status approach to insanity is either under- or overinclusive. A new interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the 'normal' defendant. This interpretation avoids Moore's criticism of the modern tests as well as the pitfalls of the status approach.",
author = "J. Bijlsma",
year = "2018",
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journal = "Netherlands Journal of Legal Philosophy",
issn = "2213-0713",

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