NCJ Number
72374
Date Published
1980
Length
230 pages
Annotation
This volume analyzes the fundamental differences between social science and jural science, contending that the psychosocial perspective of the former is incompatible with the moral perspective on which the concept of justice is founded.
Abstract
The prevailing modern theory of judicature defines the courts as social institutions, but this premise is basically at odds with traditional formulations and defenses of justice. To illustrate this thesis, a range of jural matters are examined which have been rendered contradictory or incoherent because of psychosocial thinking. These include the insanity defense, challenges to testamentary capacity, the protections afforded voluntarily and involuntarily committed patients, and the position of the courts on psychological tests and on the legal standing of the defenseless. Historical developments behind these current tendencies are reviewed to show that neither history nor careful appraisal justifies them. The definition of law expounded here rests on a concept of universal morality of which practical justice is a logical derivative. Psychosocial considerations in judicial decisions obscure the clarity of morals and reason by the introduction of essentially subjective opinions. Following the analysis of seminal cases such as McNaghten on criminal insanity; Graham v. Darnell on testamentary capacity; Donaldson v. O'Connor on confinement, consent and the right to treatment; Larry P. v. Riles on racially and culturally biased placement criteria; and the Quinlan case on the rights of defenseless entities; an epiloque outlines a series of specific proposals for how to treat psychiatric and psychosocial testimony in the process of judicial decisionmaking. These proposals are aimed at returning the role of the social scientists in the courtroom to that of contributing expert information on matters of fact exclusively. The first point, for example, recommends that all statements made regarding the mental state of the accused or of any party to litigation are to be treated as statements of belief or opinion, without the status of evidence. A further recommendation specifically rejects as evidence all statements, beliefs and opinions as to a testator's 'state of mind' at the time the testament was made. With respect to the continuation of life, the recommendation is that the State's interest is taken to be higher than that of any guardian whose decisions are likely to end or abbreviate life. Altogether 17 recommendations are made. An index and a list of legal citations are supplied. The bibliography contains 20 references.