Mad or Bad — the problem is conceptual not just epistemic

The question of whether someone who committs a horrendous crime is mad or bad keeps cropping up in legal systems around the world. A recent example is Caroline Overington’s very sad story of a 33 year old Australian man who murdered his own 3 year old son that was published in The Australian newspaper here.

This question (whether the person is mad or bad) is normally viewed as an epistemic problem — i.e. people worry that maybe the person concerned is just pretending to be mad to get a lighter sentence. However, as I have recently argued here, the really difficult question is not epistemic but conceptual — i.e. how do we even begin to distinguish madness from badness?

Because at present courts rely largely on behavioural assessments to determine whether someone suffers from a mental disorder, people worry that cunning criminals might just be putting on a very convincing act to get a lighter sentence — i.e. the worry is that perhaps they might fool the psychologists by just feigning symptoms of mental illness, and this worry is indeed fair enough. But even if neuroimaging scans could reveal what a person’s brain was really like, thus foiling even the most convincing actors’ performance, in itself this technological approach would not get us any closer to solving this problem because we would still need a criterion by which to distinguish “diseased” brain states from merely different brain states, and I can’t see how a value-neutral version of such a criterion could ever be devised.

Whether we call something a disease or a mere difference is to an important extent a norm-setting rather than a fact-finding issue — it is something for us to decide upon rather than something which we can discover.