346 The Cambridge Law Journal [1973]

The Meaning of Criminal Insanity. By HERBERT FINGARETTE. [London:

University of California Press. 1972. viii, 265, and (Index) 6 pp.
$10.00 net.]
ANOTHER addition to the vast literature on the relevance of insanity to
criminal liability takes some justifying. Professor Fingarette, a philo-
sopher who has frequently written on legal problems, succeeds admirably
in doing this. His lucidly written book provides a rigorous analysis of
the issues, and deserves careful study by everyone interested in either
the particular question of the insanity defence, or in the broader issues
of moral and legal responsibility.
Professor Fingarette robustly opposes the fashionable view that the
solution to the great difficulty of formulating a defence of insanity is to
abolish the defence altogether, and provide that the defendant's mental
condition should be investigated after conviction and prior to sentence,
for such a view threatens the whole concept of criminal responsibility
and, as a consequence, respect for the individual. The centuries-old moral
and legal intuition that an insane person is not responsible for bis acts and
ought not to be convicted of a crime in respect of them is, he argues,
sound: what is needed is to elucidate and define the concept that is
central to this intuition. The problem is, in short, to establish " the
meaning of criminal insanity."
The concept of mental disease as such, though common to legal and
moral intuitions about insanity, and to every insanity formula favoured
by, or offered to, the courts, he rejects. No agreed definition of what is
meant by it exists. The lawyers have not agreed on one, and there is no
medical reason why any doctor should ever ask himself whether his
patient is suffering from a mental rather than a physical disease: he only
has to answer such a question when it is put to him by laymen—lawyers,
welfare officers, planners and actuaries. This is not, however, to say
that mental disease is an utterly meaningless concept, only that for legal
purposes it is lawyers who must give it a meaning, and do so for the
purposes with which they are concerned, namely, whether it is just to
hold this person morally and/or legally responsible for what he has done.
These legal purposes cannot, however, be served by a simple retreat
on to the basic mens rea requirement. There is an essential distinction
between saying of a responsible agent that he lacked a criminal intent,
and therefore is not guilty: and saying that a person is not guilty because
he is not a responsible agent. In the former case we express a moral or
legal judgment, in the latter we mean (or should mean) that we must
abstain from judging such a person, and it is this which justifies the
difference in the law's response to persons found not guilty on these two
grounds. It is the finding in the latter case that the defendant is not a
responsible agent that justifies the State in exercising control over him
after his acquittal. He cannot be guilty, and has, therefore, no claim
to be treated in the same way as the responsible person.
This essential distinction was insufficiently observed when English law
took a false turning after M'Naghten's trial, and made the mistake of
saying that the question was whether the defendant knew what he was
doing. For it is as beside the point to say of an insane person, as it is
of a child, that he knew what he was doing, or that he did not, that he
acted intentionally or unintentionally. To impute insanity (or infancy)
is to refer to defects in the way in which the insane person (or infant)
C.LJ. Book Reviews 347

comes to know, intend, and act, and any test which like the M'Naghten
one excludes insane persons because they know what they are doing is
patently inadequate.
Professor Fingarette's solution is to direct attention to the concept of
" defect of reason " in the common law (Hadfield/M'Naghten) formula,
which in contrast to its other elements has been little attended to either
by those who have interpreted, or by those who have proposed substi-
tutes for, it. It is, he contends, a lack of capacity for rationality—that
is, the lack of capacity to act relevantly to those familiar and normative
judgmental factors in a situation which normally make the conduct of
others intelligible to us—that is the heart (though not the entirety) of
the notion of mental disease, and in which therefore the defence of
insanity should consist. Moral and legal responsibility is to be determined
not by whether the defendant had the capacity to conform (as the
Model Penal Code test implies), for this insane persons often have, but
by whether he had the capacity to choose relevantly whether to conform,
which he will not have if, being insane, his appreciation of the world
around him and of the considerations which ordinarily influence human
behaviour is gravely distorted. This lack of capacity to choose ration-
ally, which is as easy or as difficult to determine as any other question
about the mental state of the insane, formed the basis of the common
law's approach to both infancy and insanity. In modern English law it
survives, for infants, in the doli incapax rule, and for insane persons in an
emasculated form in the second limb of the M'Naghten formula: that the
defendant did not appreciate that what he was doing was wrong. Pro-
fessor Fingarette's thesis, persuasively argued as it is, is not the less
welcome for being a call to return to first principles.
P. R. GLAZEBROOK.

Le Droit Anglais des Societes Anonymes. By ANDRE TUNC, Professor

of Law at the University of Paris 1. [Paris: Jurisprudence Ge'nerale
Dalloz. 1971. iv, 247 and (Index and Tables) 17 pp. 32 fr. net.]
THIS is an exposition of English company law for French readers—a
careful and thorough piece of writing, which examines and explains the
subject with commendable patience and restraint, however complex and
however irrational parts of it may be. Even so, it assumes that its reader
either has some knowledge of English institutions such as la common law,
requity and le trust, or that he is prepared to seek enlightenment in more
general works such as Rene David's Grands Systemes de Droit Con-
temporains. It is not likely that Professor Tune's book will be of great
value to an English student of company law, or even of comparative law,
since the writing is based squarely on the standard English texts of
Gower, Palmer (somewhat awkwardly referred to throughout as
"Schmitthoff and Thompson") and Pennington; and where the author
has occasion to criticise the English position, he does so in the main
by adopting the view of one or another of these writers. Where occasion-
ally he does venture to allude to the corresponding position under French
law, the reference is very brief; there is no elaboration for the benefit
of the student unfamiliar with French law, and the author is usually
content simply to comment that the law of one country or the other is