Most of the records agree that early criminal law developed from the blood feud and rested upon the desire for vengeance. It is worthy of note that the criminal law concerned itself with those injuries which were highly provocative and the most injurious of these are the intentional ones. Justice Holmes wrote: "Vengeance imports a feeling of blame and an opinion, however distorted by passion, that a wrong has been done. It can hardly go very far beyond the case of a harm intentionally inflicted; even a dog distinguishes between being stumbled over and being kicked ...The early English appeals for personal violence seem to have been confined to intentional wrongs."
The Criminal Law's focus on "mens rea"--mental thing-- or "intentional wrongs" goes back as far as ancient Roman law, according to some legal historians.
However, as Justice Holmes observed the concern regarding intentional harm goes beyond humans and is likely shared by many animals.
It probably has always been important to be able to distinguish between those that hurt us on purpose and those who hurt us by accident.
St. Augustine's writings on evil motive were very influential in the development of England’s legal system and America's criminal law was largely based on English law.
Sir William Blackstone's famous commentaries on the laws of England addressed "mens rea" and admonished that the "guilty mind" was the most important element of the crime.
In modern times, the criminal law's focus on "mens rea" or criminal intent, has spawned no shortage of philosophical debates regarding free will and determinism.
However, these debates have done relatively little to address the pragmatic problems of the administration of justice and what to do with people who are admittedly dangerous.
In an effort to balance the ancient need to end the blood feud or for vengeance, and acknowledge some scientific reality we've come up with some interesting modern legal constructs such as "civil commitment of dangerous sexual predators" and "guilty but mentally ill."
To my mind, neuroscience and the criminal law are on something of a collision course.
I'm not aware of any neuroscientist worth his or her salt who would testify as to what degree of free will any of us is using at any particular given moment, but we have no problem convicting people "beyond a reasonable doubt" and sentencing them to death.
Does that mean I believe we don't have free will or everything is determined? No, I believe that old debate won't get us there. By "there," I mean a rational and compassionate system of justice that protects the community and is also consistent with ever evolving science and standards of humanity, love and compassion.
It's complicated -- and I believe requires modified approaches scientifically, legally, and emotionally.
Here in Colorado, which is a much less death penalty friendly than my home state of Oklahoma, we have a man on death row who was after incarceration diagnosed with bipolar disorder and prescribed medication.
As we argue for the individual assessment and treatment of people who commit heinous crimes, we must out of the depths of our love provide emotional and substantial financial resources to address the real and profound needs, desires, and concerns of the survivors.
Sometimes opponents of the death penalty such as myself say that the death penalty is motivated by "hate." Having served under one of the most "death-penalty winniest" District Attorney's in the history of this country -- Oklahoma County's string-tie Bob Macy -- I can tell you the motivation is much more complicated and it does include love for the victims and concern for the community.
We still have to end the blood feud -- let's work with the victims and the community to pragmatically provide greater safety than what we are currently doing. Further, we all have an interest in "transforming the flames of anger" into something worthy of the human being.
I think I'm going to log onto the Denver Foundation and make a donation to The Claire Davis Arapahoe Community Fund.
P.S. I have slightly edited this blog post in an effort to make my references to "free will" consistent as a matter of style pursuant to Mollie's comment. Thanks, Mollie.
(Click pictures for associated outside links)
Was this dog kicked?
Sarcophagus of Roman Lawyer Valerius Petronianus".
St. Augustine by Carravaggio
Sir William Blackstone
Justice Oliver Wendell Holmes, Jr.
Oklahoma County DA Bob Macy
Click on Claire's Picture To go to the Denver Foundation & Donate to The Claire Davis Arapahoe Community Fund
Claire Davis -- Bob Macy would have loved a fellow horse-lover.