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The argument is ultimately unconvincing, in my view. Battery law’s insensitivity to insanity is entirely of a piece with tort law’s general insensitivity to cognitive disability,200 including in the heartland of negligence. In the case law, this general insensitivity is most often explained by administrative, evidentiary, and practical considerations,201 as well as suggestions that the cognitively disabled should in fairness be strictly liable for the heightened risks they impose on others by going through the world in their condition.202 Both lines of explanation may be dubious, on reflection.203 It is arguable that, like most of the civil law codes,204 the common law should decline to impose tort liability on defendants that truly lack mental capacity except where their lack of capacity has been self-induced through responsible actions they previously performed. The point for present purposes is that, by its own lights, the common law does not appear to impose tort liability on defendants lacking mental capacity because it believes they have genuinely mistreated or morally wronged the plaintiffs they have injured. Whether or not justifiable, the common law’s harshness toward mentally incapable defendants is a departure from its general policy — operative across torts including battery and negligence — of holding defendants liable for infringing others’ rights in a morally responsible manner.
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