Alan Saunders: Hello, and welcome to The Philosopher's Zone; I'm Alan Saunders.

And today we're looking at the dark side, my dark side, your dark side, and everybody's dark side.

You think you haven't got one?

Well perhaps you have, and if the evil twin inside you did something bad, whose fault would it be?

And if it were something really bad, which of you should end up in jail? Why should you be imprisoned for something that somebody else did?

So what we're talking about here is a question in moral philosophy: how do we ascribe guilt? But also a question in law, which is why it's of interest to Nicola Lacey, who's Professor of Criminal Law and Legal Theory at the London School of Economics.

She's been looking at that great examination of dual personality, Robert Louis Stevenson's novel, The Strange Case of Dr Jekyll and Mr Hyde.

MUSIC & READING: The Strange Case of Dr Jekyll and Mr Hyde

The most racking pangs succeeded: a grinding in the bones, deadly nausea, and a horror of the spirit that cannot be exceeded at the hour of birth or death.

Then these agonies began swiftly to subside, and I came to myself as if out of a great sickness.

There was something strange in my sensations, something indescribably new and, from its very novelty, incredibly sweet.

I felt younger, lighter, happier in body; within I was conscious of a heady recklessness, a current of disordered sensual images running like a millrace in my fancy, a solution of the bonds of obligation, an unknown but not an innocent freedom of the soul.

I knew myself, at the first breath of this new life, to be more wicked, tenfold more wicked, sold a slave to my original evil; and the thought, in that moment, braced and delighted me like wine.

Alan Saunders: Published in 1886, this story of a doctor who develops a drug that turns him into someone far more monstrous than he, or perhaps unleashes the monster within him, has become an archetype for our times, adapted again and again on stage, in movies and on TV. And perhaps it still has relevance today.

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FILM AUDIO - Dr Jekyll and Mr Hyde (1931)

Man: Dr Jekyll! Is Dr Jekyll there? Is that you? Please let me in, Sir.

Man: I beg your pardon, sir, I thought I heard a strange voice.

Dr Jekyll: It's quite all right, the light's on here, a friend of mine. His name is Hyde, Mr Hyde, he's just gone out the back door.

Alan Saunders: Fredrick March, in the Hollywood version of the story from 1931, when people still remembered that the name should be pronounced 'Jeekyll'.

But back in 1886, how would the original readership have understood Stevenson's story? Would their understanding have been different to ours? Here's Nicola Lacey.

Nicola Lacey: I'm not sure that they would, and I think that it's lasting; pretty consistent cultural salients suggest that it's plugging in to social, psychological, legal and moral questions which are really rather pervasive, certainly in modern complex pluralistic societies. I think that the story of Jekyll and Hyde plugged in to a very particular anxiety in the late 19th century, which was an anxiety prompted by the burgeoning development of what we now call the natural sciences, both the medical sciences and evolutionary theory. And perhaps that anxiety was particularly acute at that time.

On the other hand, as a criminal lawyer, I would say that there continues to be quite a lot of perplexity about the question of how far scientific theories or accounts of human behaviour, can help us to decide when people are genuinely responsible for what they do, or indeed how far they undermine some of our more familiar, perhaps sort of folk theories of human responsibility.

FILM AUDIO - Abbott and Costello Meet Dr. Jekyll and Mr. Hyde (1953)

Dr Jekyll: No, I didn't kill him. Mr Hyde did. Dr Jekyll is a cultivated gentleman, bound by convention, by tradition, who through a metamorphosis becomes Hyde, greatly devoid of all good, the embodiment of all that's evil.

Alan Saunders: Boris Karloff, giving the movie more than it really deserved in Abbot and Costello Meets Jekyll and Hyde.

But let's get back to the real world of crime and identity. Three years after the publication of Stevenson's book, there was a very sad murder case in London. To tell us about that, here's Nicola Lacey.

Nicola Lacey: Well this is a case which I took from the reports of proceedings at the Old Bailey, London's main Criminal Court at the time. And it concerns a very sad case, as you say, concerning one called Julia Bickenell, who was charged with the murder of one of her children, a little girl, who she had drowned. And in her testimony at the time, and in what she said to neighbours and to the people who arrested her, she confessed to having the killed the child, she showed extreme distress, but she claimed to have been 'possessed by the Devil' at the time. She claimed that she had been hearing voices, that the Devil had been following her around, and in effect, she admits her crime, but in a sense ascribes her responsibility in part to the agency of another being, in this case, the Devil.

Now if that was an isolated incident, obviously it would look like a fairly sort of exotic insanity case. But the interesting thing is that a legal historian called Joe Eigen has actually done quite a thorough survey of the insanity cases before the Old Bailey in the second half of the 19th century, and finds that these cases where defendants, in effect claim a certain kind of double agency, or double consciousness, and say, 'OK, I was there, I did what I'm accused of, but actually it wasn't really me acting, it was somebody else, I was under the control of some other agency.' And so it occurred to me that Jekyll and Hyde must have been plugging in to some broader cultural preoccupation with the question of whether human consciousness, human personality, human agency, are really unified and stable. And that of course would have been a really worrying thought, particularly to the Victorians who had put so much emphasis on, and made so much investment in a project of sort of state and administrative governance, which was very much based on the idea that people had capacities for self-control which could be inculcated.

So the idea that when one was trying to motivate people to control themselves, to exercise self-mastery, to discipline themselves, actually the person you're addressing incentives to, might themselves be multiple or unstable in some sense; would have been a particularly worrying thought to the Victorians. And I think that reflects itself in something we find reflected very strongly in Victorian literature, but we also know about it from the social history of the time, which is a pervasive preoccupation with phenomena like mesmerism, hypnosis, sleep-walking, these sorts of states which in some sense suspend or multiply consciousness.

Alan Saunders: And you talked about the intellectual crisis engendered by the growth of the natural sciences in the 19th century, and in fact the trial of this unfortunate woman was dominated by doctors, wasn't it?

Nicola Lacey: It was indeed. As indeed would have been normal for a trial at that time where there was a question of mental capacity at issue. By that time, since the middle of the 19th century, the Common Law in England had actually settled on a judicial formulation of what counted as insanity, such as a set of rules called the M'Naghten Rules, which are still with us in many Common Law jurisdictions today. And this definition of insanity was that somebody could excuse themselves on the basis of insanity if they were suffering from a disease of the mind such that either they didn't know the nature and quality of the act, or they didn't know that what they were doing was wrong. And that second limb of the M'Naghten Rules had generated a tremendous debate about the concept of so-called moral insanity. In other words, people who knew what they were doing, but couldn't distinguish right from wrong.

Alan Saunders: Do we know what happened to Julia Bickenall?

Nicola Lacey: No, we don't. That's what's so poignant about these reports. You read these little vignettes of absolutely heartbreaking real stories, and then the person disappears into the pages of the law report.

Alan Saunders: Just getting back to Jekyll and Hyde, when it comes to the ascription of guilt, I mean the story is actually rather complex isn't it, because Yes, Hyde is the one who commits the crimes, and Jekyll, as Hyde, commits the crimes only after he's taken the chemical draught that turns him into this monster, but he chose to do that, and the assumption that it's very difficult to avoid is that there's something within him that is finding release when he becomes Hyde. So Jekyll is not guiltless, he's not a victim of this chemical draught.

Nicola Lacey: Absolutely. I mean in some ways Jekyll constitutes the central case of the Victorian notion, or a failure to exercise self-control, being culpable, because clearly at the beginning of the story, Jekyll not only creates the potion, but definitely drinks it voluntarily.

On the other hand, that account, is muddied as the story proceeds, because the potion starts to lose some of its efficacy, and so as the story goes on, Jekyll loses, to some extent, the power of voluntary change between his Jekyll identity and his Hyde identity. I think that this is really one of the reasons that the story is a genuine nightmare for late Victorian society, because first of all it's the thought that this capacity for self-control might be gradually undermined by this lurking evil within Jekyll.

It's the idea that the veneer of civilisation which characterises Jekyll, is just that, it's a veneer, and as compared with say the early 18th century world where there's a certain social confidence in the ability of say the jury or a magistrate, to know bad character when they come across it and know a criminal when they see one. Jekyll and Hyde suggests that perhaps criminality lurks beneath the respectable façade of a professional Londoner, and that's a very frightening thought for the late Victorians, indeed, you could say it's still a very frightening thought today.

Alan Saunders: I was interested in what you had to say about the phenomenon of multiple personality, which as far as I know is not talked about until the 19th century, until the late 19th century, and what that has to tell us about this.

Nicola Lacey: Well the first recorded case of multiple personality, which is actually in England, is in the early 19th century, and the preoccupation with cases of suspended consciousness certainly comes in by the middle of the 19th century, but multiple personality as a sort of recognised syndrome being analysed by the medical sciences, is particularly strong in the latter part of the 19th century and of course has developed apace since, with now the sort of clinical definition of multiple personality disorder. This is a huge problem, potentially, for criminal law. If you think that cases of multiple personality are more than absolutely exceptional, you have a big problem if you're a system of criminal law, because who is it that you're seeking to regulate and hold accountable? So multiple personality is a nightmare for criminal law because it just disrupts the basic assumptions on which h the attribution of criminal responsibility depends.

MUSIC & READING: The Strange Case of Dr Jekyll and Mr Hyde

I saw that, of the two natures that contended in the field of my consciousness, even if I could rightly be said to be either, it was only because I was radically both. If each, I told myself, could be housed in separate identities, life would be relieved of all that was unbearable; the unjust might go his way, delivered from the aspirations and remorse of his more upright twin, and the just could walk steadfastly and securely on his upward path, doing the good things in which he found his pleasure and no longer exposed to disgrace and penitence by the hands of this extraneous evil.

It was the curse of mankind that these incongruous faggots were thus bound together; that in the agonised womb of consciousness these polar twins should be continuously struggling. How then were they dissociated?

Alan Saunders: On ABC Radio National, you're with The Philosopher's Zone and I'm Alan Saunders, and my guest this week is Nicola Lacey, Professor of Criminal Law and Legal Theory at the London School of Economics. And we're talking about duality and The strange case of Dr Jekyll and Mr Hyde.

Dr Jekyll: Free! Free at last! If you could see me now, what would you think, hm? Ha-ha-ha-ha!

Alan Saunders: There was also of course at the time, a prevailing religious doctrine, which was the doctrine of original sin. Does that colour the thinking about these issues?

Nicola Lacey: I think it does, and in fact one of the things I talk about quite a lot in my essay is the religious cosmology, if you like, which surfaces very strongly in Stevenson's story. So that the story is usually thought of as a story informed by evolutionary theory in particular, and by Stevenson's interest in contemporary theories of the mind and brain. But sitting alongside those scientific ideas is a very strong set of images about Hyde as representing Hell. For instance, Stevenson uses the term 'the slime of the pit,' 'inorganic fiends', so these things that come straight out of biblical discourse, yet they're sitting alongside for example, the concept of Hyde as a troglodyte or as ape-like, which of course speak to the contemporary Darwinian debates.

Alan Saunders: We're talking, as I said, about the end of the 19th century, and you contrast the view of criminal responsibility prevalent and coming into being then, with the prevailing view in the previous century. How had things changed?

Nicola Lacey: Well whereas today we think of the truth of criminal responsibility as really founded in a number of psychological facts. To be criminally responsible means to be someone who is conscious of what you're doing and has certain capacities for understanding and self-control, and it's the State's job to prove that those capacities are engaged at the time of the offence. If you look at the nature of the criminal trial in the 18th century, I think there's very strong reason to suspect that that very psychological model of responsibility as founded in certain facts, which can be proved in a courtroom, was not the operative concept of responsibility.

Let me give you just one very basic piece of evidence that might make us take that view, and that is that the average length of a criminal trial in the 18th century has been calculated to have been about 20 minutes. It's very hard to imagine that also at that stage, felony defendants had no right to be represented by a lawyer. So trials were not dominated by lawyers, they were much more in the nature of a sort of conversation between witnesses, jury and judge.

In that context, I've been arguing that in fact an attribution of criminal responsibility in the 18th century was much closer to an attribution of bad character. In other words, to be criminally responsible was to be held to be of bad character. The assumption was that whereas the system wasn't very well equipped institutionally to investigate the state of defendants' minds, there was an awful lot of local knowledge available to this system. And really the people who were selected out by the local Magistrates (who of course were the dominant force in the administration of 18th century criminal justice) would have tended to be those of bad reputation. Gradually the idea that we would today associate with responsibility, was developing through the development of criminal defences, including the insanity defence.

So the reason that I was interested in looking at the late 19th century was that this is an era by which the medical sciences are well under way, and there's plenty of evidence that a sort of psychological view of human beings is well established. So I thought that if one was still finding appeals to this older notion of criminal responsibility as founded in bad character, sitting alongside the new, more sort of psychological notion of responsibility, that would be a very interesting finding.

Alan Saunders: And none of this is merely theoretical or historical. Nicola Lacey wants to argue that character-based ascriptions of guilt, or at least suspicion, have made something of a comeback in recent years. Why is this?

Nicola Lacey: In the modernisation of English criminal law, knocking character evidence out, making it inadmissible, was one of the most important steps, and we took it in the early 19th century. We have just legislated to re-admit character evidence, and this, along with a whole cluster of developments like sex offender registers, dangerous personality disorder, classifications, three strikes and you're out sentencing, seems to me to hark back to a tendency which perhaps never entirely went away in criminal law, but which definitely was attenuated in the process of modernisation, to label certain people as bad characters, and to manage their criminalisation and punishment in terms of that.

I'm inclined to think that the reversion overtly to that character-based mechanism, has something to do with a real feeling of unsettledness, of anxiety about crime, and about the capacity of both traditional mechanisms of criminal responsibility, attribution, and developments in the sciences to clearly resolve the question of how and why people are responsible for what they do.

So in a way you could say in the late 20th, early 21st century we see something of an analogue to the period in which Stevenson was writing. He was charting a certain kind of social reaction to new developments in the medical sciences, and in evolutionary theory. So I'm inclined to think that the intensification of labeling people as bad characters, is almost a sort of reaction to a perceived crisis of legitimation which harks back nostalgically to this older world in which we knew crime when we saw it.

Today we've got the whole debate about genetics, about DNA, we've got new technologies for predicting behaviour, geographically and in terms of these quasi-medical characteristics. But we know really in our heart of hearts that that doesn't resolve the moral dilemma of what really makes people responsible.

Alan Saunders: Professor Nicola Lacey from the London School of Economics.

For more on Jekyll and Hyde, check out our website.

The show is produced by Kyla Slaven with technical production this week by John Diamond, and special thanks to John Horner.

I'm Alan Saunders and one of me will be back next week.

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