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

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 criminalisation. 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 19th 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 19th Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process even or perhaps especially in cases dealing with defects of consciousness. 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 ∗ Law Department, LSE. 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 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.