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

J. Bijlsma

Research output: Contribution to JournalArticleAcademicpeer-review

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.
Original languageEnglish
Pages (from-to)29-48
Number of pages20
JournalNetherlands Journal of Legal Philosophy
Volume2018
Issue number1
DOIs
Publication statusPublished - 2018

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