Regulating Criminal Unaccountability - From Concepts to Defensible Legal Standards

Modern criminal law is based on the premise that individuals possess the ability to take the responsibility to act in permissible ways and in accordance with the norms communicated by the penal code, and thus can be held accountable for their acts. There are, however, exceptions when this presumption is overridden. Young age and immaturity, severe mental disorder and disabilities, and consciousness disorders are across jurisdictions considered candidates to impair these capacities. The key legal doctrine of criminal insanity here concerns a defendant’s lack of capacity for responsible action and provides an excuse from criminal responsibility. In current criminal justice systems, this doctrine has been linked to concepts about mental disorder. The specific legal criteria vary across countries, but the reasons and justifications for this variation have not been sufficiently discussed. This article takes as a starting point that the law must transform concepts into concrete and applicable legal rules and standards. Thus, any system’s definitions and judgements about who is criminally unaccountable, must rely on proxies such as ‘mental disorder’. From this starting point, this paper discusses the transformation from concepts to possible alternatives of legal rules, with special attention to mental disorder as an excuse from criminal accountability and punishment.