Psychology and Law: Can Justice Survive the Social Sciences?

...He looks for causes but offers characteristics: When called upon to testify in a criminal trial, he is inclined to offer the criminal activity itself as "evidence of the disease...

...In these respects, the psychosocial perspective differs fundamentally from the human perspective...

...The influence of this psychosocial perspective has been greatest in the criminal law, and especially at the point where the law, of necessity, draws the line between responsibility and irresponsibility...

...As Robinson says, "justice cannot survive this sort of thing...

...Daniel Robinson is both old-fashioned and thoroughly modern: old-fashioned insofar as he unabashedly discourses on the relation between, law and morality, and modern insofar as he knows modern psychology and its works...

...Moreover, as Robinson shows but I lack the space to explain, the psycho-social perspective in the law has had the consequence of shifting the burden of proof from the defendant to the prosecution...

...This combination of talents proves to be formidable...

...But it is almost churlish to mention so trivial a point...

...The psychosocial perspective is a form of reductionisxn, the attempt made by psychologists and sociologists to reduce individuals to the characteristics of the groups to which they belong and to explain their words and Walter Berns is Resident Scholar at the American Enterprise Insititute...

...human beings look for and give reasons, but social science looks for causes and would if it could culminate in ne,urophysiology or neurology...

...Where once it was necessary for the defense to prove the fact of insanity, in some jurisdictions the prosecution is now required, once an insanity defense has been offered, to prove the defendant to have been sane when he committed the crime...

...To treat them as psychosocial questions is to mistreat them...

...One reason for this is the psychologist's inability in fact to distinguish between sanity and insanity...

...and I am as certain as I can be that it was not the psychosocial disposition that caused the courts to reject the evidence of educational testing...

...Indeed, he acknowledges this when, with reference to this rejection, he says "we must [now] wonder whether the social sciences can survive this sort of 'justice.''' What was at work here, as well as elsewhere, was the spirit of equality, the seeds of which were planted and had begun to sprout long before there was anything that can fairly be called a social science...

...In short, the government may be able to prove that he acted rationally and, therefore, one would think, responsibly...

...Robinson traces the effects of the law's adoption of the psychosocial point of view in successive chapters devoted to the criminal law, the right of a testator to dispose of his property as he sees fit, commitments to mental institutions, educational testing, and, in a chapter entitled "Persons: Their Nature and Their Rights," to abortion, the Karen Quinlan problem, and psychosurgery...

...But social science denies the existence of rationality in this sense...

...Thus, whereas the difference between guilt and innocence continues to depend, as morally it must depend, on the difference between sane and insane, the latter difference has become, thanks to the psychologists, one of unsubstantiated opinion...

...In this way, complex moral judgments are reduced to, because they are seen as, mere opinions whose causes are psychological or sociological but never moral...

...As he says, the law is just' 'when it obliges us to do what we would genuinely desire to do were we to perform the rational analysis that stands behind every genuinely moral wish...

...deeds as manifestations of these characteristics...

...Not every person is, at all times, in full possession of those qualities that define a human being and make reasonable the attempt to guide human actions by and in law...

...As one federal court put it recently, to meet its burden the government "must point to affirmative evidence which is adequate to prove sanity without the benefit of a sanity presumption...

...Its perspective is that of legal philosophy, sometimes called jurisprudence, but, again, not the sort of legal philosophy taught in the law schools or characteristic of the work of our jurists...

...But, even so, it will not be able to win a conviction so long as a court is willing to accept the word of a psychologist that the defendant suffered from "chronic undifferentiated schizophrenia [that was] probably in existence [at the time of the crime...

...In the course of its history, the dimensions of what came to be called the insanity defense have been enlarged and, thanks in our time to the law's reliance on psychology, have also become considerably less distinct...

...The conclusion he draws in his penultimate chapter concerning the effect of the psychosocial perspective on our understanding of the human person can serve equally well as a conclusion to the book as a whole: All the questions discussed "are moral questions first, legal ones by practical derivation, and not psychosocial ones at all...

...As Robinson puts it, instead of being able to show that the criminal act is a consequence of insanity, he would have insanity established by virture of the act, or by virtue of what is said to be the "fact" that the act could only have been committed by someone who is insane...

...it enables him to understand and to persuade us of the perils involved in allowing the law to be invaded by what he calls "the psychosocial point of view...

...In this fashion, the moral purpose of law is defeated by psychiatric musings...

...Daniel N. Robinson / Oxford/ $14.95, $5.95 Walter Berns The author of this book belongs to no familiar school and the book itself is not readily categorized...

...My only quarrel is with Robin...

...I do not think it was the psychosocial perspective that caused the abortion decisions...

...But in this strange world, how does one prove sanity...

...In this way, the defense tends to be a repetition of the charges leveled in the indictment...

...He is a psychologist, even a professor of psychology, but the book could not have been written by someone who is only a psychologist...

...The government may be able to prove that the defendant stabbed his victim, raped her, stole goods from her house, attempted to sell those goods, borrowed a clean shirt, his own being soiled by the stains of his crime, and, in all respects, acted in the manner of someone who knows that what he did is wrong and is trying his best to conceal the fact that he had done what he did...

...Although Robinson, so far as I can recall, never provides an explicit definition of this term, the reader is left in no doubt as to its meaning or, at least, its characteristics...

...Some people are non compos mentis, as the Roman law put it, not of sound mind, and to that extent they cannot be held responsible for the acts they commit...

...This is a splendid book...

...son's suggestion-or with the impression he manages to leave-that the social sciences are solely responsible for the "untoward" conditions he describes...

...Such a perspective is a denial of the purpose of law because it is a denial of human freedom...

...As Robinson also makes clear in his first chapter, the moral response, of which only human beings are capable, is inherent in the concept of justice and in its instrument, the law...

...It is the perspective of social science, which claims to be a science but is not (as Robinson demonstrates in his first chapter), but which is nevertheless accepted as science by the law...