Witches Sometimes Cry

Wild Beasts and Idle Humors
by Daniel Robinson
Harvard University Press,311 pages, $29.95

Daniel Robinson, as I recall him, was a striking figure when he landed at Amherst in the late 1960s, and he was made all the more striking as he was viewed against the backdrop of this new setting. He was a brash Manhattanite, now suddenly delivered to a New England college town. He was in his early thirties, but he arrived with the largest grant on campus for an ambitious project of research on vision and the retina as part of the “neural sciences.” His teaching was in the “hard science” part of Psychology with a course on Physiological Psychology, a bracing mixture of anatomy and pharmacology. Yet, he was one of the few psychologists––and for that matter, one of the few academics anywhere these days––who could work with texts in Greek and Latin.

Years later he would do a book on Aristotle’s Psychology, drawing on the original texts. As he offered his courses in Psychology, he insisted that the empirical findings of his discipline were worth knowing only as they bore on the enduring dispute that we identify with Plato and Aristotle, Kant and Hume, about the nature of knowledge. His work on the retina wondrously led back to Kant, just as everything in his work, so current, so up-to-date, always managed to lead back to some older questions, framed far more pointedly in an earlier age.

Robinson was also a serious theist, surrounded by the fashionable atheists of the academy. It became, in time, part of his routine to deliver his listeners and his readers from the prosaic to the sublime. Step by step, the audience would be led to the recognition that “understanding” could not be reduced to neural processes, and that the reach of the mind could not be reduced to the functions of the brain. Even if we could replicate the neural firings in the brain of John Marshall, nothing in that ensemble of electrical activity would necessarily yield the opinion in Marbury v. Madison . With a riveting precision Robinson would lead his students back to the recognition of certain propositions or necessary truths, not bounded in space or time. And since the propositions were not material in nature, they would not decompose even with the death of the person who first announced them. Following in this path, the student would be led back eventually to a nonmaterial cause of a material universe. It became clear that Robinson was not waxing metaphoric when he finally concluded, with Aristotle, that there really was something divine about reason––about the capacity to understand those propositions not bounded by space and time. In the hands of Robinson, the discipline of Psychology did indeed become the study of the “soul.”

A body of work set in this cast would soon of course make its connection to politics and law. As Aristotle understood, a human being––that forked creature with the divine gift of reason––would have the capacity to reason about the things that were right or wrong, just or unjust. That moral understanding would find its logical expression in law, and law was the defining mark of the polis. Anyone outside the polis either did not require the restraint of law or he was cut off from the moral teaching implicit in the law. As Aristotle put it, he was either a beast or a god. But as Daniel Robinson observes, “the implicit logic of every system of law [is] that . . . the law extends only to creatures able to comprehend its terms and abide by its prescriptions.”

The person who seems to grasp or respect no principle of justice, indeed the one who seems bereft of reason itself, could indeed be regarded, for all practical purposes, as the equivalent of a “wild beast” or a furiosus . He would be “incapable of intelligible contact . . . with the public good.” At the same time, he might be withdrawn from the class of beings who could be held responsible for their own acts.

Robinson would be drawn to the jural part of the problem through this question of mental competence or the so-called “insanity defense.” The maturation of that defense in the law would invest with a new authority a corps of psychologists who could profess to be experts in the science of measuring mental competence. Robinson would show over the years that the science portrayed by these experts was in fact a pseudo-science. But the foundation of the problem did in fact run to the root of psychology, to the questions of determinism and freedom, of intentionality and voluntariness. To measure moral fault, to assign blame, to gauge the responsibility of people for their own acts––these were all judgments at the heart of the law, as they were at the heart of practical judgment in everyday life.

And as Robinson has shown in his writings, the jurists who have addressed these questions over the years have addressed them with a wit and common sense that may still run beyond the grasp of modern psychologists. In an earlier book, Psychology and Law (1980), Robinson looked back to the classic cases produced by English judges in the eighteenth and nineteenth centuries as he worked his way forward to the experience of the American law in our own day. In this most recent book, Wild Beasts and Idle Humors, it might be said that he completes the account by taking the analysis back to Homeric times, to the origins of jurisprudence itself. The most fetching parts of the book must surely lie here, as Robinson flexes his arts of interpretation and finds, in the fragmentary records of the past, the rudiments of a “jural” perspective. To act, unreflectively, in the groove of familiar practice is not really the same as acting with a sense of “precedent”:

Allegiance to precedent in settling disputes . . . is grounded in something more fundamental than “customary practices.” It is grounded in the belief and the judgment that what is arbitrary or capricious or ad hoc is incompatible with justice itself.

But from this point, Robinson can move forward with a sweep that takes in the medieval schoolmen, and the way in which Christianity worked upon the strands of the legal tradition emanating from Rome. And Christianity would work on that tradition, curiously enough, by reinforcing, as Robinson says, “the profound belief that human law expresses in a local way what the order of the heavens reveals in a cosmic way: namely, that a rational principle is the source of all things.” That sense of the matter would supply the main threads of the law, even when the most accomplished scholars, tutored in a naturalistic science, could still incorporate the arts of distinguishing witches and adjudicating cases of witchcraft. The savvy judge knew that true witches did not cry, and he would try to trick the devil by conjuring tears, in the name of the tears shed by Christ on the cross––and then distinguish between the true tears and the false ones. But the root of the problem, for the Christians, could have been put in this way: A soul that is open to the divine may be open then to the satanic as well.

And yet, the Church would not be dislodged from the discipline of reason. As Robinson puts it, “The Church remained resolute in denying that the devil could rob persons of their free will. Were this otherwise, the very grounds on which eternity is spent in heaven or hell would be removed.” In 1563, Johann Weyer published a seminal work in psychiatry, De praestigiis daemonum, and insisted on making a distinction between the real sorcerers, inflicting harms, and those persons, in a state of delusion, fancying that they are the cause of events that no one could effect. Weyer could argue then that “nothing [should be] legally possible if it is naturally impossible.”

With the advance of empirical science, there would be a richer inventory of the kinds of assaults on the body or the brain that could produce torments or distractions, and beget acts so eccentric, so out of the groove of “normal” conduct, as to suggest a touch of madness. The postulates of the law had long been settled. By the thirteenth century, as Robinson remarks, “there was little enthusiasm for executing the insane, no matter how grave the offense, and by the fourteenth century the care and treatment of the insane had become an accepted duty within a number of municipalities.”

But the judgment of insanity was thought to be well within the arts of judgment available to ordinary folk. In the seventeenth century, Sir Matthew Hale, the English jurist, summed up the method of choice for judging these matters in the English law: “a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva voce in the presence of judge and jury, and by the inspection and direction of the judge.”

In our own day, of course, the judges and juries have given over more of their time listening to the lectures offered by psychiatrists offering expert testimony. No one has sought to track more precisely than Robinson the refinements in these bodies of testimony. But it would seem, in Robinson’s estimate, that the truth of the matter does not advance very far beyond Hale’s sense of things.

The essential issue may be seen, for example, in the case of epilepsy. The condition may be gauged through a variety of neurological tests and assessments of the anatomy and functioning of the brain. As Robinson observes, the epilepsy could be verified in much the same way as one would confirm the presence of a bacterial infection or a fractured bone. And yet, none of the tests confirming the presence of the epilepsy could “constitute grounds of exculpation.” A defendant may claim that he was affected by the epilepsy at the time he committed a crime. That he was epileptic could be shown; but it would still be necessary to establish the relation between his condition and his behavior. Do people suffering epileptic fits usually commit violent acts or engage in thefts? Do they strike out randomly, or do they happen to strike at people they have a particular reason to assault?

In other words, we would still be left with the question of “determinism”––whether any malady or disease invariably “causes” the same kind of crime across a population of people who are otherwise quite different in their backgrounds and temperaments. In the nature of things, that contention must remain implausible. Not everyone suffering the same pain will be led by that pain on a course of aggression and criminality. What intervenes, of course, is character, disposition, and all of the influences that may shape one’s sense of the things that are finally decent or justified to do. The maladies, in short, do not entail or determine “mental states.” And as Robinson argues, there is no way that those states could be known reliably except by the person who experiences them.

How, then, is the matter to be judged? Apparently, in the way that ordinary people ordinarily judge these things: Is the person acting out of character or irrationally? Is he departing from the normal patterns of perception and reaction? Whatever we call this mode of judging, the standard, as Robinson says, is “the gift of folk psychology, and in its absence literally nothing can be said about the relevance of neuropathologies to mental life.”

The final irony is that we may not be able to judge these things without consulting the subject himself, the one whose competence or self-command is at the core of the problem. We may ask, “Jones, were you trying to break into the house by opening that window, or were you merely cleaning it and suffering the tremors?” We may have to cast a judgment in the face of dissembling on the part of Jones, but any judgment on this matter would have to hinge upon the things that Jones is preeminently in a position to tell us. No one could know Jones’ reasons or motives better than Jones himself, but we could consult Jones only on the assumptions that Jones is in control of his own response and that he is competent to speak reliably about the springs of his own conduct. We can assess the matter, then, only if we install, in the first place, premises that virtually answer the question that we are straining our wit now to judge.

Nothing in the arsenal of psychology will advance the task of judgment beyond the properties that were evident already in those first moments, when men acting as judges self-consciously applied laws and cast judgments. There is a certain satisfaction, or serenity, in finding that all of the paths emanating from the problem lead back to Athens and Jerusalem.

But in surveying the history, as Robinson has, with his tutored eye, he can offer a further consolation: To strip away from the law the pretensions to a false science is not to invite a callous disregard of people who are mentally disturbed. The record shows that those people are far more likely to suffer from the remedies offered up by bogus experts than from the judgments made by that ordinary citizen who commutes every day to work. That citizen, says Robinson, “left to his own judgment and experience,” is more likely to weave justice and sympathy with the strands of common sense, “and despite confusions and misapprehensions, he is likely to remain open to the possibility that witches sometimes cry.”

Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College.