HISTOIRE DE LA FOLIE EN DROIT PENAL ANGLAIS ET CANADIEN: ANALYSE CONSTRUCTIVISTE DES TROIS GRANDES F
AbstractIn criminal law, the construction of the judicial discourse on madness has long been perceived as a random phenomenon and as a process whose conception and application was entirely confined within the hands of the legislator and courts. The goal of this article is to challenge this approach. The research demonstrates that the construction of the judicial discourse on madness in England and Canada is a, process which is closely orientated and organized by mechanisms of control. Indeed, contrary to what we commonly believe, the content of the defence of insanity in England and Canada is not only determined by the legislator and judges, but also and foremost by the values to which the members of these societies adhere. In this regard, the author suggests that there are, historically, three distinct ways of looking at the question of madness in criminal law. These interpretations, which rest upon different sets of values, appear in the imaginary scenery of madness under three different images, namely (1) the insane as a creature midway between man and animal, (2) the insane as a dangerous personage, and finally (3) the insane as a holder of individual rights.
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