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Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility

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Abstract

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence.

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Notes

  1. Strange Case of Dr. Jekyll and Mr. Hyde (hereafter ‘Jekyll and Hyde’) (1886: Penguin Classics; 2002), p. 56.

  2. Robert Mighall, Introduction to the 2002 edition op. cit. p. xxxiii.

  3. Ibid p. ix: for evidence of the story’s continuing status in popular culture, see ‘Shannon’s mother like Jekyll and Hyde, court hears’, The Guardian 14.11.08 p. 14.

  4. See Nicola Lacey, Women, Crime and Character: From Moll Flanders to Tess of the d’Urbervilles (Oxford University Press 2008) pp. 43–45; for an example of 19th Century American fiction’s distinctive preoccupation with, if not law, at least social control, see Nathaniel Hawthorne, The Scarlet Letter (1850) (Oxford World’s Classics 2007)—a story which, like Jekyll and Hyde, speaks to the fear of hidden evil, assuaged in this case by a particularly horrifying social attempt to make bad character manifest.

  5. Jekyll and Hyde is of course a ‘case’ in both medical and legal senses—as is reflected in the professional identities of the key players.

  6. Proceedings of the Old Bailey t18890204-214.

  7. On the rise of such testimony between the mid eighteenth and mid nineteenth Centuries, see Joel Peter Eigen, Witnessing Insanity: Madness and Mad Doctors in the English Court (New Haven and London: Yale University Press 1995).

  8. It is worth noting that this medical testimony seems not to have been unsettled by the Spickernell’s immediate confession to her two neighbours and her enormous distress, each of which would seem to indicate her grasp of both what she had done and its wrongfulness. This pattern is repeated in a significant number of cases of the late nineteenth Century; see for example those of Benjamin Hewlett, Proceedings of the Old Bailey t18880227-348 (‘I am going mad; I have killed my boy’) and of Emily Walmsley (Ibid. t18830430-550: ‘Oh, George, I have killed my poor Rose; fetch the doctor, fetch the police’). This almost certainly reflects the ways in which medical experts were trying to push the limits of the cognitive constraints imposed by the McNaghten rules: see below at note 66.

  9. Needless to say, this claim cannot rest on a single case: for a systematic analysis of cases of this type, see Joel Peter Eigen, Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore and London: Johns Hopkins University Press 2003) p. 161. Claims of temporary insanity were most often found in cases of drunkenness.

  10. As Roger Smith (Inhibition: History and Meaning in the Sciences of Mind and Brain (London: Free Association Books 1992, p. 25) notes, ‘psychology’ emerged as a discipline only in the late nineteenth Century, before which point, ‘knowledge which we might label “psychological” was part of a broader culture’; see also Nikolas Rose, Governing the Soul:The Shaping of the Private Self (1989: second edition, London and New York: Free Association Books 1999).

  11. Thomas Nadelhofer, ‘Bad Acts, Blameworthy Agents and Intentional Actions: Some problems for juror impartiality’, 9 Philosophical Explorations (2006) 203-19 at p. 212.

  12. In doing so, it also introduced a narrative which was uncomfortably close to the difficult terrain of ‘irresistible impulse’, on which see text following note 54 below: no wonder that two of the three medical witnesses were so careful to quote the cognitive test from the McNaghten Rules in their testimony….

  13. See Joel Peter Eigen, Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore and London: Johns Hopkins University Press 2003); Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (New Jersey: Princeton University Press 1995).

  14. Op. cit.

  15. Robert Mighall points out close analogies, for example, between Stevenson’s formulations and the contemporary work of Henry Maudsley and of Theodule Ribot’s conception of ‘higher and lower selves’: see his introduction to the 2002 edition of Jekyll and Hyde op. cit. p. xxiv and his essay, ‘Diagnosing Jekyll: the Scientific Context to Dr Jekyll’s Experiment and Mr Hyde’s Embodiment’ on pp. 145–161 at pp. 146, 151; he also points out (ibid. p. 145) that Stevenson’s wife recorded that the tale was inspired by his reading of a French scientific article about sub-consciousness. Nancy K. Gish has persuasively suggested that the scientific source of Stevenson’s ‘case’ was Pierre Janet’s theory of hysteria as grounded in split personality caused by dissociated consciousness: ‘Jekyll and Hyde: The Psychology of Dissociation’, 2 International Journal of Scottish Literature (2007) pp. 1–10: ISSN 1751-2808; www.ijsl.stir.ac.uk.

  16. Jekyll and Hyde op. cit. p. 9.

  17. Ibid. p. 64.

  18. Jekyll and Hyde p. 22; among the burgeoning theories about the sources of Stevenson’s imaginative creation, of interest in the context of this reference to Hyde as Jekyll’s ‘animal’ side is Chris Danta’s account of Stevenson’s reaction to Darwin and his moral objections to vivisection, which Danta argues derived from a sense of the inextricable links between animal life and human existence: ‘The Metaphysical Cut: Darwin and Stevenson on Vivisection’, 36 (2) Victorian Review: an Interdisciplinary Journal of Victorian Studies (forthcoming 2010).

  19. Jekyll and Hyde op. cit. p. 16.

  20. Ibid. pp. 60, 61; cf p. 67: ‘He, I say—I cannot say, I.’.

  21. Ibid. p. 62.

  22. Ibid. p. 58.

  23. Ibid p. 58.

  24. I am grateful to David Lieberman for alerting me to the significance of this point.

  25. Jekyll and Hyde, p. 57.

  26. Another modern theme—that of professional detective work—is represented by the aptly named ‘Inspector Newcomen’: Ibid p. 24.

  27. Horace Walpole, The Castle of Otranto (1764) and Matthew Lewis, The Monk (1796), in Four Gothic Novels Oxford University Press 1994) at pp. 5 and 159, respectively: Ann Radcliffe, The Mysteries of Udolpho (1792: Penguin Classics 1998): for discussion of criminality in the Gothic tradition, see Nicola Lacey, Women, Crime and Character: From Moll Flanders to Tess of the d’Urbervilles (op. cit. 2008) pp. 80–81, 122–124: Jan-Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature and Theology (Cambridge University Press 2000) Chap. 3. Stevenson’s story also exhibits, in the atavistic Hyde, a pervasive Gothic preoccupation with the degeneration of elite lineage.

  28. This is not to say, of course, that this was an autonomous strand of writing. Unambiguously ‘Realist’ novels like those of George Eliot display some ‘Gothic’ themes, while novels of sensation like those of Wilkie Collins also show elements of ‘Realism’; Thackeray’s Vanity Fair (1848: Penguin Classics 2001) is a hybrid between realist and Newgate novel; Charlotte’s and Anne Brontë’s social Realism is shot through with Gothic themes and images; and Dickens occupies a fascinating borderland between Realism, novels of sensation and the Gothic.

  29. Frankenstein, or, The Modern Prometheus (1818: in Four Gothic Novels Oxford University Press 1994). The analogies between Jekyll and Hyde (written, coincidentally, in Bournemouth, where Mary Shelley is buried) and Frankenstein are striking. Even leaving aside the common theme of a scientist’s inadvertent creation of a monstrous being whose ‘foul soul’ transfigures ‘its clay continent’ (Jekyll and Hyde p. 16), take for example the shared image of that being’s looking through the bed curtains at his creator: Jekyll and Hyde op. cit. p. 13; Frankenstein p. 491.

  30. See Philip Collins, Dickens and Crime (London: Macmillan 1965, second edition); see also Martin Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge University Press 1991).

  31. Jekyll and Hyde op. cit. p. 69.

  32. James Hogg, The Private Memoirs and Confessions of a Justified Sinner (1824: Oxford World’s Classics 1999); Oscar Wilde, The Picture of Dorian Gray (1890: Oxford World’s Classics 2006). In Hogg’s early example of this fascinating genre, a young Calvinist is haunted and corrupted by an alter ego or second self (pp. 116–117) who is clearly suggested to be ‘an agent of the devil’ (p. 121), and whose voice is described as ‘the sound of the pit’ (p. 188). Yet even this early 19th Century text throws in copious hints of madness or a diseased imagination in a single self (p. 154). In Wilde’s very different text, whose dark hints of an ostensibly respectable man’s degenerate life in the London underworld echo Jekyll and Hyde, the original corrupting/creative force is itself split between a decadent, Mephistotelian aristocrat, Lord Henry Wotton, and Dorian Gray himself. But once again the text introduces a curious mixture of the twin themes of madness and a of a supernatural splitting off of the apparently decent public self from the evil and sinful self made manifest only in Gray’s portrait (pp. 78–79, pp. 81–82, p. 109). Here, scientific and religious/supernatural cosmologies are yet more closely interwoven than in the earlier texts.

    Another interesting example of the double consciousness genre is George Eliot’s short story The Lifted Veil (1859: The Lifted Veil, Brother Jacob Oxford World’s Classics 1999). Here, however, the doubled consciousness of a young clairvoyant concerns not so much a split in his own subjectivity but access to other minds and to future events. Characterised by an unusual inflection of the Gothic amid Eliot’s decisively Realist work, the book was prompted in part by her interest in contemporary phrenology, in mesmerism, and in physiology—notably Henry Holland’s theory that the double hemisphere of the human brain could, in cases of injury or disease, on occasion lead to double consciousness (see Helen Small’s introduction to the Oxford World’s Classics edition, at pp. xvii–xxii). In Eliot’s text, there is no hint of the influence of sin or evil on the clairvoyant; the preoccupation is rather with the psychological implications and moral upshot of contemporary science.

  33. See Robert Mighall’s introduction to Jekyll and Hyde op. cit. pp. xxi–ii.

  34. Both stories raise a fascinating set of moral questions about the responsibility of the creator—moral questions which are prompted or at least complicated by scientific advance: in these narratives, science is not so much the solution as it is the problem.

  35. See in particular Nicola Lacey, Women, Crime and Character op. cit.; ‘In Search of the Responsible Subject: History, Philosophy and Criminal Law Theory’ 64 Modern Law Review (2001) pp. 350–371; ‘Responsibility and Modernity in Criminal Law’ 9 Journal of Political Philosophy (2001) pp. 249–277; ‘Space, Time and Function: Intersecting principles of responsibility across the terrain of criminal justice’ Criminal Law and Philosophy vol 1 (2007) pp. 233–250; ‘Character, Capacity, Outcome: Towards a framework for assessing the shifting pattern of criminal responsibility in modern English law.’ in Markus Dubber and Lindsay Farmer (eds.) Modern Histories of Crime and Punishment (Stanford University Press 2007) pp. 14–41.

  36. Jeremy Horder, ‘Two Histories and Four Hidden Principles of Mens Rea’ (1997) 113 Law Quarterly Review, pp. 95–119.

  37. Rethinking Criminal Law (London and Toronto: Little, Brown 1978).

  38. Much the same was true in the areas of finance and science: see, respectively, Margot C. Finn, The Character of Credit: Personal Debt in English Culture, 1740-1914 (Cambridge University Press 2003); Stephen Shapin, A Social History of Truth: Civility and Science in Seventeenth-Century England (University of Chicago Press 1983).

  39. Dror Warhman, The Making of the Modern Self (New Haven: Yale University Press 2004).

  40. Farmer, Criminal Law, Tradition and Legal Order (Cambridge University Press 1997) Chaps. 1, 4.

  41. Alan Norrie, Crime, Reason and History (London: Butterworths: second edition 2001); Nicola Lacey, ‘In search of the responsible subject’ op. cit.

  42. Carolyn A. Conley, The Unwritten Law: Criminal Justice in Victorian Kent (Oxford University Press 1991).

  43. Jekyll and Hyde, p. 16.

  44. See Deidre Shauna Lynch, The Economy of Character: Novels, Market Culture and the Business of Inner Meaning (University of Chicago Press 1998).

  45. My inclination is to argue that they were not in fact fully established until the middle of the twentieth Century, and that even then they occupied only part of the terrain of criminal law. This is an argument which I will not elaborate here, but which turns on the continuing doctrinal significance of the presumption that a person intends the natural consequences of his or her actions: see Lacey, ‘In Search of the Responsible Subject’ op. cit. pp. 367, 370.

  46. See Elizabeth P. Judge, Character Witnesses: Credibility and Testimony in the Eighteenth Century Novel (D.Phil. thesis, Dalhousie University 2004, Chap. 4).

  47. M’Naghten’s Case (1843) 10 Clarke and Finnelly 200.

  48. Joel Peter Eigen, Witnessing Insanity, op. cit. p. 6; the annual rate grew slowly from 33 in the 1760s to 71 in the 1830s, by which time the insanity defence had already undergone some formalisation. The overall rate, however, was low, amounting to between 4 and 8 cases per 1,000. On the gradual rise of insanity pleas, and on the history of the insanity defence in general, see also Nigel Walker, Crime and Insanity in England (Volume 1: The Historical Perspective (Edinburgh University Press 1968) Chaps. 3–4.

  49. Eigen, Ibid, Chaps. 4–6.

  50. Arlie Loughnan, ‘Manifest Madness: Towards a New Understanding of the Insanity Defence’ (2007) 70 Modern Law Review pp. 379–401; see also Roger Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh University Press 1981), Chap. 7 of which illustrates that even in the nineteenth Century, non-technical assumptions about female insanity continued to inform the trial process, with infanticide cases in particular often tried without medical evidence being led; see also Lacey, Women, Crime and Character op. cit. pp. 20–23.

  51. Rethinking Criminal Law op. cit.

  52. Rabin (2004), Identity, Crime and Legal Responsibility, Chap. 3.

  53. As Rabin also notes, the Eighteenth Century cases often display what is to our eyes a strange blurring of the concepts of criminal intention and character: indeed, the idea that intent simply was a matter of character underpinned the seventeenth Century willingness to contemplate poverty as an excuse for crime: ibid pp. 87–89: not until a case of 1787 does her sample of mental incapacity cases feature a decisive judicial attempt to separate, analytically, the question of character from that of mental state: Ibid. p. 160: the case is that of Francis Parr, Proceedings of the Old Bailey t17870115-1. For an early example, see the judgment of Chief Justice Holt in Margridge (1707) Kel 119; my point, however, is that such examples were isolated. I am grateful to Jeremy Horder for alerting me to this case.

  54. Dror Warhman, The Making of the Modern Self op. cit.: Lacey, Women, Crime and Character op. cit. Chap. 1.

  55. Joel Peter Eigen, ‘Lesion of the Will: Medical Resolve and Criminal Responsibility in Victorian Insanity Trials’ 33 Law and Society Review pp. 425–459 (2003); see in particular p. 442.

  56. Case of Emily Walmsley, Proceedings of the Old Bailey t18830430-550, testimony of Charles Wheeler, surgeon.

  57. As Ruth Harris has shown (Murders and Madness: Medicine, Law and Society in the Fin de Siècle, Oxford University Press 1989), much the same mèlange of medicine and moralism characterised debates about criminal responsibility in late 19th Century France.

  58. Lucia Zedner, Women, Crime and Custody in Victorian England (Oxford University Press 1991) p. 270.

  59. Ibid. p. 46.

  60. See Leon Radzinowicz and Roger Hood, The Emergence of Penal Policy in Victorian and Edwardian England (Oxford University Press 1990) Chaps. 8–12.

  61. In passing, it is worth noting that the persistence of concepts such as ‘moral insanity’ puts a different spin on the ‘turf wars’ between doctors and lawyers charted by Roger Smith in his influential account of criminal insanity in nineteenth Century England (Trial by Medicine op. cit.). Smith argues that medicine and law were in competition because while law sought to make an evaluative judgment based on an assumption of responsibility, medicine sought to make a factual judgment on the basis of determinist assumptions. The moral insanity debate suggests that what was at issue was rather a pair of competing evaluations. On the role of ‘moral insanity’, and the resonance with James Cowles Prichard’s influential 1835 text on insanity in Jekyll and Hyde, see Mighall, ‘Diagnosing Jekyll’ op. cit. pp. 147–148.

  62. Roger Smith, Inhibition op. cit. pp. 231, 237–238.

  63. Cf Stephen Shapin, A Social History of Truth op. cit.

  64. I am thinking here, in particular, of the work of Jane Austen, Frances Burney and Maria Edgeworth: see Lacey, Women, Crime and Character op. cit. pp. 85–89.

  65. Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore: Johns Hopkins University Press 2003).

  66. Ibid. p. 6 ff.

  67. Though of course, as Spickernell’s case shows, they were sometimes nonetheless bundled within that framework: see also the cases discussed in fn. 8.

  68. Ian Hacking, Rewriting the Soul op. cit.; see in particular Chaps. 9, 10. Mary Reynolds is discussed on p. 142.

  69. Ibid. pp. 134, 142.

  70. See note 15 above.

  71. Ibid. p. 155; Mighall, ‘Diagnosing Jekyll’ op. cit. p. 145; see further the competing theories discussed at notes 15, 18 and 32 above.

  72. For a small selection of Victorian novels featuring significant incidents of absence or duality of mind, see George Eliot, Daniel Deronda (1876: Penguin Classics 1995) (Gwendolen Grandcourt’s dissociated state implies that she is unsure whether her husband’s death was an accident); Wilkie Collins, The Moonstone (1868: Penguin Classics 1998) (a ‘theft’ committed during a laudanum-induced trance); Thomas Hardy, Tess of the d’Urbervilles (1891: Bantam Classics 2004) (Tess’s mind is ‘dissociated’ from her body at the time of Alec’s murder, while Angel acts out some of his desires during an episode of sleepwalking); Charlotte Brontë, Jane Eyre (1847: Penguin Classics 2003) (Jane is able to hear Rochester’s call from many miles away); Wilkie Collins, The Woman in White (1860: Penguin Classics 1999) (Laura Fairlie loses her identity to the ‘mad’ Ann Catherick); Oscar Wilde, The Picture of Dorian Gray (1891: Penguin Classics 2000) (Dorian Gray’s dissipated life is etched onto his portrait while leaving his body and face intact). Though it is an autobiographical essay rather than a novel, mention must also be made of Thomas De Quincey’s Confessions of an Opium Eater (1821: London: Signet Classics 1966), which gives a vivid account of the experience of laudanum-induced hallucinations.

  73. Unconscious Crime op. cit. pp. x, 15.

  74. Ibid p. 117.

  75. Ibid. p. 179.

  76. See Elizabeth Carr’s case, OBSP 1875- 6 Case 413.

  77. Eigen, op. cit.; this and the quotation in the previous sentence, p. 179. Doctrinally, these sorts of arguments led to the development of a (highly restricted) defence of automatism: the first automatism defence resulting from a plea of somnambulism did not occur until 1878, in Scotland— see Walker, op. cit. Chap. 4.

  78. He continues: ‘If this defendant was “missing” at the time of the crime, the perpetrator was certainly no stranger to the victim. Over the years 1843 to 1876… the concept of the unconscious itself… underwent the greatest change in court. Originally merely the repository of forgotten knowledge and innumerable connections among ideas, the unconscious took on a new function, storing the resentments and hostilities not expressed within the victim and the offender’s day-to-day interaction.’; ibid. pp. 33–34.

  79. Jekyll and Hyde op. cit. p. 64: ‘no man morally sane could have been guilty of that crime’: cf the clerk’s assumption that whoever committed the Carew murder was ‘mad’: p. 29. Similarly Lanyon assumes that Jekyll is ‘insane’ when he receives his strange letter: p. 49, just as he earlier inferred from Jekyll’s unorthodox researches that he was ‘wrong in mind’; ibid. p. 12.

  80. Ibid, pp. 69, 58; cf. Danta, ‘The Metaphysical Cut: Darwin and Stevenson on Vivisection’, op. cit. and discussion at note 18 above on Hyde as representing the ‘animal’ side of human nature—surely a Darwin-shaped theme, and one absent from the other examples of the ‘double consciousness’ genre which I have cited. The human/animal/evil axis is also an aspect of Bram Stoker’s Dracula (1897: Oxford World’s Classics 1998), a book which shares with Jekyll and Hyde the pitching of a fact-recording lawyer and a doctor against evil; the representation of the boundary between evil and insanity as blurred (p. 100 ff., 186); and depictions of sleepwalking (pp. 72, 86), hypnosis (p. 44), ‘unconscious cerebration’ (p. 69) and other out of body experiences (pp. 160, 201). By contrast, Dracula presents its readers with a further twist to the horror of criminality’s immanence in respectable urban life: that of criminality as contagious.

  81. Henry Fielding: The History of Tom Jones, A Foundling (1749: Oxford World’s Classics 1996) at p. 286, 794; Fielding nonetheless continued for most of his life to place some confidence, or perhaps hope, in character as a basis for social judgment: see his ‘Essay on the Knowledge of the Characters of Men’ in Miscellanies (first published 1743) Vol 1. (Ed. Henry Knight Miller. Oxford: Clarendon Press, 1972); see also Arlene Fish Wilner, ‘Henry Fielding and the Knowledge of Character’ 18/1 Modern Language Studies, (1988), pp. 181–194.

  82. Jekyll and Hyde, p. 55.

  83. Jekyll and Hyde, p. 52.

  84. Jekyll and Hyde pp. 7–8, 10, 13, 16; throughout the tale, Stevenson emphasises that everyone who sees Hyde instantly recognises his evil or deformity: a clear echo of ‘manifest criminality’, but one which is hard to sustain in the rationalist discourse of individual responsibility, though it was about to have a new revival in the form of the criminal classifications on which the late Victorians became so keen—a development which could be read as a new twist in the history of ‘external’ patterns of responsibility-attribution.

  85. See Leon Radzinowicz and Roger Hood, The Emergence of Penal Policy in Victorian and Edwardian England op. cit. Chaps. 8–12.

  86. Robert Mighall, ‘Diagnosing Jekyll’ op. cit. pp. 152–154.

  87. Jekyll and Hyde op. cit. pp. 69, 11.

  88. Jekyll and Hyde op. cit. p. 63.

  89. Freud’s early work with Breuer, Studies in Hysteria, was published in 1895, while his elaborated theory of the unconscious unfolded in further publications over the next five decades.

  90. Herbert Fingarette, Self-Deception (Berkeley and Los Angeles: University of California Press 1969, 2000); Herbert Fingarette and Ann Fingarette Hasse, Mental Disability and Criminal Responsibility (Berkeley: University of California Press 1979).

  91. If this can be explained by the gradual decline of defences of ‘absence’ or ‘duality’ of mind, which so preoccupied late Victorian courts, we can perhaps speculate that the issue will arise again shortly as a result of recent developments in the psychiatric understanding of multiple personality. Whether or not this is a plausible speculation, it is a topic for another paper.

  92. Elyn R. Saks with Stephen H. Behnke, Jekyll on Trial: Multiple Personality Disorder and Criminal Law (New York University Press 1997); on the development of ‘multiple personality’ in the medical sciences, psychoanalysis, philosophy and popular culture, see also Hacking, Rewriting the Self op. cit. Despite the title of the book, Jekyll would not, strictly, come within the definition of multiple personality disorder, which typically depends on a radical failure of integration which implies separate memories: see Saks and Behnke, op. cit. chaps. 1 and 2. See also the references to Fingarette at note 90 above; and Michael S. Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge University Press 1984).

  93. See for example Victor Tadros, ‘Justice and Terrorism’, (2007) 10 New Criminal Law Review 658–689; Lucia Zedner, ‘Fixing the Future: the pre-emptive turn in criminal justice’, in Bernadette McSherry et al. (eds.), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (2008); Mike Redmayne, ‘The Relevance of Bad Character’ (2002) 61 Cambridge Law Journal 684–714; Mike Redmayne, ‘The Ethics of Character Evidence’ (2008) 61 Current Legal Problems 371–399. In the field of punishment and law enforcement, many of the developments canvassed in, for example, David Garland’s The Culture of Control (Oxford and New York: Oxford University Press 2001) and, more recently, Jonathan Simon’s Governing Through Crime (New York: Oxford University Press 2007), as well as the rise of actuarialism charted in Malcolm Feeley and Jonathan Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and its Implications’ (1992) 39 Criminology 449–474 and Bernard Harcourt, ‘From the Ne’er-Do-Well to the Criminal History Category: The Refinement of the Actuarial Model in Criminal Law’ (2003) 66 Law and Contemporary Problems 99, form part of the broad development to which I want to draw attention here. I pursue the argument in greater depth in Lacey ‘The Resurgence of ‘Character’?: Responsibility in the Context of Criminalisation’, in Antony Duff and Stuart Green (eds.): Philosophical Foundations of Criminal Law (forthcoming, Oxford University Press).

  94. See for example David Garland, The Culture of Control op. cit.; Jock Young, The Exclusive Society (London: Sage 1999); Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Societies (Cambridge University Press 2008).

  95. John Addington Symonds, quoted in Mighall, ‘Diagnosing Jekyll’ op. cit. p. 145.

  96. Jekyll and Hyde op. cit. pp. 12, 18.

  97. Jonathan Simon, Governing Through Crime op. cit.; Douglas Husak, Overcriminalization (Oxford and New York: Oxford University Press 2008).

  98. Elyn R. Saks and Stephen H. Behnke, Jekyll on Trial op. cit. Chap. 5.

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  1. Law Department, London School of Economics, London, WC2A 2AE, UK

    Nicola Lacey

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A version of this paper was delivered as the Sanford Kadish Lecture at Boalt Hall Law School, University of California at Berkeley, in April 2009. I am deeply grateful to David Lieberman and Erin Murphy for their astute commentaries on that occasion. An early draft was presented at Warwick University Law School, at the London School of Economics Legal and Political Theory Forum, at Cornell University and at the University of Sydney Law Faculty. I am grateful to the participants on each of these occasions for their feedback, and to Neil Duxbury, Moira Gatens, Arlie Loughnan, Paul Patton and David Soskice for discussion of the argument and suggestions for reading. The paper was written during my tenure of a Leverhulme Trust Major Research Fellowship: I acknowledge the Trust’s support with gratitude.

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Lacey, N. Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility. Criminal Law, Philosophy 4, 109–133 (2010). https://doi.org/10.1007/s11572-010-9091-8

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