25

The criminal irresponsibility of the mentally ill was established as early as the second century AD by the Roman emperors. Echoing Ancien Regime law, the penal code of 1810 considers that the criminal is in control of his rational faculties, and that the madman cannot be a criminal. Very quickly, the porous boundary between crime and madness became the object of specific studies, and revealed its limitations in sordid and often unmotivated judicial cases. “Criminal madness,” total unreason, swung back toward partial unreason, and abuses that grant impunity to the guilty were denounced. In the twenty-first century, confronted with risks linked to potential threat and possible re-offending, a new approach to criminal responsibility has led to the defense of society to the detriment of the individual, which some view as promoting a dehumanization of both justice and psychiatry.