This chapter sharpens and expands arguments I published earlier, adds new material, and evaluates the overall field of psychology and law. It's a chapter in a 1997 book on critical psychology.
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Note: this chapter differs slightly from the final published verssion!
Mainstream psychologists contemplated legal issues long before psychology and law developed in the United States as a recognized field in the 1970s. Earlier in the century, European and US psychologists wrote scattered and generally uninfluential articles and books on law-related topics (Ogloff et al., 1996). Today, in contrast, members of the American Psychology-Law Society (APLS) influence policy in the American Psychological Association (APA) and other organizations. "Psycholegal" journals such as Law and Human Behavior and Behavioral Sciences and the Law provide outlets for research and, secondarily, for theory. Additional signs of the field's growth include APA's establishment in 1995 of the theoretical journal Psychology, Public Policy, and Law; collections and reviews of course syllabi and textbooks (Liss, 1992; Ogloff, 1993); publication of the Handbook of Psychology and Law (Kagehiro and Laufer, 1992); expanded graduate training and career opportunities (Cavaliere, 1995; Ogloff et al., 1996; Tomkins, 1990); and increased research outside the United States.
APA and APLS devote considerable resources to increase psychology's influence on law-related policy issues (e.g., Heilbrun, 1995; Ogloff et al., 1996). This effort parallels psychology's increased impact on American public policy more generally (Herman, 1995). It also coincides with efforts by psychologists and legal scholars to develop theoretical justifications for the law's use of social science evidence (e.g., Monahan and Walker, 1988, 1991, 1994; Tomkins and Cecil, 1994). Oftentimes representing APA, psychologists testify in legislative hearings and submit briefs to appellate courts on issues ranging from racial discrimination and the death penalty to the rights of mental patients, women, children, and gays (Grisso, 1991; Roesch et al., 1991). They identify empirically incorrect legislative and judicial assumptions about human behavior, evaluate policy options, and suggest how psychology can help the legal system work better. Psycholegal advocates increasingly write not just for psychology journals but for the law reviews that judges and lawyers are more likely to read. APA even publishes Psychology, Public Policy, and Law as a law review rather than as a traditional psychology journal. Inevitably, psychologists trained as lawyers, often in dual-degree programs granting both a doctorate and a law degree (Ogloff et al., 1996; Tomkins, 1990), are especially influential within the field, as are lawyers interested in psychology.
Unfortunately, growing influence has not brought increased concern for justice. When the field began, June Tapp and Felice Levine based Law, Justice, and the Individual in Society: Psychological and Legal Issues (1977) on their assumption that "the union of social science and law promotes justice" (xi). This assumption reflected the field's initial effort to "challenge and transform a prevailing 'judicial common sense' that had been used to keep the disenfranchised down so long" (Haney, 1993: 375). Shortly afterwards, though, Craig Haney remarked that "psychologists have been slow to decide whether they want to stand outside the [legal] system to study, critique, and change it, or to embrace and be employed by it" (1980: 152). More than a decade later, he lamented: "I believe we are beginning to lose a sense of shared purpose in psychology and law. I speak about a sense of the waning of collective effort, a loss of common goals, and an abandoning of a sense of mission -- the mission of legal change" (Haney, 1993: 378-379). Most recent work pays little explicit attention to the kinds of issues Tapp and Levine addressed.
Psychology-law's decreased justice focus gains significance from the fact that legal systems hinder the good society's creation (see generally Bonsignore et al, 1994; Kairys, 1990; Turkel, 1996). From a critical standpoint, it is clear that the "rule of law's" purpose is not to ensure justice but to establish a rules-based social control system based on technicalities, categories, and abstract principles. "The legal system is, at its base, about the allocation of power, and the existence of power relationships" (Perlin, 1991: 111). Lawyers and judges tell us which actions and policy alternatives are technically legal (and therefore possible) and which are illegal (and therefore wrong). At least at the formal level, modern legal systems support the value of self-determination by endorsing one form or another of individual rights (such as to property and to speech). But they do so at the expense of the good society's other values noted in this book's introduction: distributive justice, health, caring and compassion, respect for human diversity, and collaboration and democratic participation (see Isaac Prilleltensky and Geoffrey Nelson's discussion in Chapter 9). Law, thus, fails to balance individual autonomy with the values necessary for both real community and a psychological sense of community (Fox, 1985, 1993a).
Rather than accepting law's traditional values, psychology and law should consider what kind of justice-based legal system a good society would have, and perhaps whether it should have a legal system at all. In this chapter, I note several topics related to a central policy-related task: Challenging the legitimacy of any legal system that not only fails to seek justice but actually deflects alternative routes to social change. First, though, I describe from a critical perspective the three overlapping but distinct components of mainstream psychology and law, each represented in psychology-law organizations, journals, and overviews of the field (Kagehiro and Laufer, 1992; Levine, 1995; Ogloff, 1992; Ogloff et al., 1996). These include forensic psychology, or legally relevant clinical issues; legal psychology, or applied empirical research; and policy-oriented psychological jurisprudence, efforts to develop a philosophy of law based on psychological values. Throughout the chapter, I emphasize the legal system in the United States, the field's primary context today, though much of the discussion applies to other systems as well.
Ron Roesch clarified our task in his APLS presidential address:
Let me state my values and beliefs clearly. I believe that (1) we should place a greater emphasis on changing the legal system to make it more fair and equitable; (2) disproportionate emphasis is placed on individuals and individual responsibility rather than on system-level changes; and (3) changes within the justice system will never be sufficient to create a just society, nor will within-system changes by themselves ever have much of an impact on individuals who come into conflict with the law. The problems inherent in our justice system cannot be resolved simply by addressing problems within that system. We can make changes that will make the system more fair or more effective in dealing with individuals within the system, but, in the long term, I believe that this will not be enough because it will not change the fundamental inequities in our society at large. (1995: 329)
Although this chapter emphasizes policy issues rather than the court-related work of individual clinicians, it is important to note that forensic concerns permeate the field. The majority of professionals working in psychology and law identify themselves as forensic/clinical psychologists. Some receive forensic training in law-and-psychology graduate programs, but most graduate from traditional clinical programs (Ogloff et al., 1996; Otto et al., 1990). Organizations such as the American Academy of Forensic Psychology (AAFP) provide advanced training and certification..
As described throughout this book, clinical psychologists influence decisions by legal authorities in individual cases (see, e.g., the chapters by Brown; Hare-Mustin and Marecek; and Kitzinger). Judges and other authorities frequently point to a psychologist's report to justify committing someone to a mental hospital, finding a criminal defendant not guilty by reason of insanity, declaring someone incompetent to stand trial or control his or her own money, or removing a child from an "unfit" parent. Forensic psychologists, thus, directly affect people's lives in legal contexts, often to the disadvantage of those without the resources to make their way through the legal system.
The subjective nature of clinical decision making, the law's assumptions about "mental illness" and the causes of behavior, and judges' reliance on psychological experts raise practical and ethical issues that psychologists, psychiatrists, and lawyers have addressed (e.g., Melton et al., 1987). Many of these issues relate to the fundamental distinction between the work of forensic psychologists and clinical work performed outside the legal system:
The forensic mental health professional is not, after all, "seeing a patient" for therapeutic purposes. Instead, she is intervening on behalf of the litigation, economic or administrative needs of one of a series of third parties -- an attorney, the court, a prosecuting agency, a state mental health facility, an insurance company, an army. But for these external actors, the forensic relationship would not -- could not -- exist. There can be no pretense, for instance, (1) that absolute confidentiality applies at the forensic interview, or (2) that the mental health professional is present to provide treatment. (Perlin, 1991: 115)
Responding to concerns over the "economic and scientific future of forensic psychological assessment" (Grisso, 1987: 831), APLS and AAFP have sought to enhance the field's status and influence. They created a formal ethics code, the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), and they urge APA to create a formal specialization in forensic psychology (Heilbrun, 1996). Unfortunately, enhancing the professional credentials of psychologists increases rather than decreases their power to intervene in people's lives. As Michael Perlin pointed out, despite the attention paid to traditional ethical concerns and psychologists' role as expert witnesses, "the basic power questions that pervade all of these relationships are still rarely explored" (1991: 114). Instead, mental health professionals "tend to view these cases. . . . as involving questions of professional autonomy, 'turf' issues, public safety considerations and matters of competing fundamental constitutional interests" (113). A task for critical forensic psychologists, then, is to focus attention on the "unbalanced" forensic relationship (Perlin, 1991), working with those who are victimized by the alliance of mental health professionals and legal authorities (Petrila, 1993).
LEGAL PSYCHOLOGY: APPLIED EMPIRICAL RESEARCH
Unlike forensic psychology, legal psychology's core subject matter originates in experimental research in social psychology as well as in developmental psychology, perception and memory, and related areas. In the 1960s, some social psychologists used research on leadership, conformity, communication patterns, and similar small-group dynamics to help explain jury decision making. Despite criticisms of legal psychology's traditional experimental method (King, 1986), narrowly focused research, often on jury dynamics, eyewitness accuracy, and other trial-related topics, remains the norm. The goal is to develop "theories that describe, explain, and predict human behavior by reference to law" (Small, 1993: 11). Beyond research, some experimentalists serve as expert witnesses in civil and criminal trials and submit "friend-of-the-court" briefs to appellate courts, presenting data in areas as varied as eyewitness accuracy, discrimination, and rape trauma syndrome. Others help lawyers select favorable juries and prepare persuasive courtroom presentations. Although jury consultants attract public disapproval when they defend wealthy individuals accused of crimes, more routinely they defend large corporations sued by victims of corporate harms or by other corporations.
Entrenched in the moderately liberal segment of psychology's political spectrum, mainstream legal psychology retains liberalism's benefits but also its drawbacks. When psycholegal researchers choose sides, either explicitly or implicitly, more often than not they seek to make the system work a bit better for members of powerless groups. The belief that "the law is a good thing" and that "psychology is, too" (Melton, 1992) makes it seem reasonable to design research to reduce misdirected discretion or to make judges aware that their assumptions about human nature are wrong. Partly because both psychology and the law traditionally attribute problems to individuals rather than to societal faults (Haney, 1993; Roesch, 1995), psychologists can become insiders within the legal system (Melton, 1990). Even if they sometimes sympathize with more radical perspectives, their belief that there is little chance for widespread change limits them to proposing relatively minor "workable" reforms.
Unfortunately, being an insider (or believing that one is an insider) directs attention to the minutia of the law and obscures the complete picture. The system has acknowledged past errors, the feeling seems to be -- the legal justifications for slavery, women's subjugation, oppressive working conditions -- and it now means well. It just needs more data to do the job right, to rid itself of residual principles and procedures that continue to restrict equality and social justice. Not surprisingly, thus, legal psychologists have a stake in believing the authorities will use the data they generate. Toqueville (1831/1973) noted long ago that political issues in the United States frequently become legal issues. Today, psychologists turn political, legal, and moral issues into empirical ones (Haney, 1980, 1993). They resist the notion that important social problems persist because of conflicting values and competing interests rather than because the authorities lack accurate information (Fox, 1991). In practice, however, the system ignores or rejects data that challenge system goals (Perlin and Dorfman, 1993).
As is the case for psychologists more generally (Prilleltensky, 1994), legal psychologists' own values show through in their choice of research topics and their conclusions. For the most part, though, they avoid explicit value statements. They use the guarded language that their methodology's restrictions and their desire to appear value neutral allow (Fox, 1993b; Haney, 1993). Some even retreat from trying to make the legal system work "better" (a value judgment, after all) and investigate instead whether the legal system works "as it's intended." They leave it to others to decide what that intention should be. Researchers may spend years revealing the inequities of the death penalty, for example, clearly inspired by moral antipathy to legalized execution. They may argue, based on their view of the data, that the system can never administer the death penalty fairly, without arbitrariness and racial bias. Yet by restricting their argument to the data, they leave themselves open to challenge by competing research, or by technical criticisms of their own, or by judges who simply dismiss the data as irrelevant (see Costanzo and White, 1994).
Some have urged their peers to broaden legal psychology's scope in both substance and method. They do so in convention speeches, organizational newsletters, and the American Psychology-Law Society journal Law and Human Behavior. APLS officers, editors, and commentators advocate expanding the traditional material on juries, eyewitnesses, and expert witnesses that fill psychology-law courses, textbooks, journals, and convention agendas (Roesch, 1990, 1995; Saks, 1986). But despite these calls, and despite applause at conferences for those who urge change, most psychologists ignore those appeals in their research and practice. Trends in the social sciences toward methodological innovation and substantive broadening have had less impact on legal psychology than on other components of the "social science in law" movement (Haney, 1993). "The narrow focus of psycholegal research continues to be the despair of writers in the field" (Kagehiro and Laufer, 1992: xi).
PSYCHOLOGICAL JURISPRUDENCE AND PUBLIC POLICY
Psychological jurisprudence refers to the development of "theories that describe, explain, and predict law by reference to human behavior" (Small, 1993: 11; see also Small and Wiener, 1993). Whereas legal psychologists may study how judges and other legal system actors make decisions in practice, theories of psychological jurisprudence tell judges and legislators how they should make decisions: guided by psychological data and values that suggest not just what law is, but what law ought to be. True, legal psychology and psychological jurisprudence are interdependent, and narrowly focused empirical work can sometimes expose oppressive legal practices. However, it is psychological jurisprudence that holds the most promise for stimulating a critical psychology of law. So far this promise remains unfulfilled.
Theories of jurisprudence are frameworks for directing legal decision making. Psychologists of law know that, despite the legal system's preferred image of rational, objective reasoning, judges exhibit the same subjective processes as the rest of us. As legal realists pointed out early in the twentieth century, legal reasoning rarely leads to a single correct decision. Judges routinely choose among competing precedents and principles. Their political views, class position, religious and philosophical beliefs, and so on influence these choices (Kairys, 1990). The realists urged judges to shape law according to broad values, guided by a better understanding of how legal decisions affect real people. Not surprisingly, psychologists have been happy to provide this understanding.
Modern critiques emphasize that law is inherently subjective, biased, and goal-oriented, even when we have good judges. Substantive legal principles and procedural rules steadily lead in one direction or another. The policy problem is to select the desired direction. Feminist, communitarian, libertarian, and other movements with different visions of the good society offer competing theories of jurisprudence. Particularly relevant are law and economics and critical legal studies. Both movements agree that law is never neutral. The law takes sides. The two movements disagree sharply, however, about whether the law's support for the powerful is a good thing. On the economic right, law and economics seeks to use law to pursue goals such as economic efficiency, often based on capitalist theory (Landes and Posner, 1987). Building on law's already strong support for the rights of individuals to control their own property despite most consequences for others, law and economics has had increasing influence. In contrast, critical legal studies efforts to reduce elite power, building on neo-Marxist and other left perspectives (Kairys, 1990; Unger, 1983), has had little impact on legal doctrine.
Where do current psychological perspectives fall amid this broad array of politically charged theories? Small (1993) describes three forms of psychological jurisprudence: an approach to psychological jurisprudence developed by Gary B. Melton; therapeutic jurisprudence; and a jurisprudence based on cognitive science. Psychological jurisprudence of the first kind has the potential to incorporate critical justice-based perspectives. Unfortunately, and perhaps not surprisingly, the newer jurisprudences of the second and third kind seem likely to eclipse it.
Melton's Psychological Jurisprudence
Gary Melton, a past APLS president, broadly challenges psychology-law's mainstream (1987, 1988, 1990, 1992; Melton and Saks, 1986). Acknowledging he is "not sure that the field of psychology and law is going anywhere," Melton claimed that "to a great extent, psychologists of law still have blinders on when they look at law and the legal system" (1991: 1). Melton proposes instead a psychological jurisprudence that picks up where legal realism left off. He not only accepts the view that values play a central role in legal decisions, he reminds us that psychology has its own values to pursue. Attacking the law and economics movement's claim that economic efficiency should be the law's goal, Melton (1990) says psychology knows better: Psychologists should urge legal decision makers to choose actions likely to enhance psychologically desirable values related to human dignity, such as personhood, privacy, psychological sense of community, equality, and justice. In this sense, Melton's critical psychological jurisprudence advances well beyond legal psychology's mainstream timidity. A legal system directed by the values Melton proposes would go a long way to redress the law's historical bias in favor of those who are white, male, heterosexual, and financially well off.
Unfortunately, Melton combines his call for a legal system based on dignity-related values with a view that law, properly understood, already shares these values (1990). Rejecting the critical legal studies view that law is a tool of the powerful, Melton believes that "law is intended to promote human welfare" (1992: 383). His perspective, thus, is decidedly liberal rather than radical. He asks psychologists to use their influence as insiders to reform the law. So whereas Melton would have psychologists help the law choose psychologically desirable values, he stops short of a radical psychological jurisprudence more suspicious of law's potential (Fox, 1993b, 1993c).
Melton's jurisprudence at least has the potential to move psychology and law in the direction of social justice. Unfortunately, another descendant of legal realism has rapidly overshadowed it, one that may be well meaning but is potentially dangerous nonetheless. David Wexler and others propose reshaping the law -- particularly mental health law -- according to the values of therapeutic jurisprudence (Schopp, 1993, 1995; Wexler, 1990, 1992, 1993, 1995; Wexler and Schopp, 1992; Wexler and Winick, 1991, 1993; for overviews, see Perlin, 1993; Sales, 1995). In Wexler's view, "the law itself can be seen to function as a therapist or therapeutic agent" (Wexler, 1993: 21). Psychologists should evaluate how "legal rules, legal procedures, and the roles of legal actors (principally lawyers and judges) may be viewed as social forces that sometimes produce therapeutic or antitherapeutic consequences" (Wexler, 1993: 21). Judges, for example, might change the way they conduct commitment hearings, making the formal legal proceeding itself part of the therapeutic process. In response to criticisms that he never defines therapeutic with enough specificity (Melton, 1994; Slobogin, 1995), Wexler prefers "allowing commentators to roam within the intuitive and common sense contours of the concept" (1995: 221). Not surprisingly, many psychologists have responded enthusiastically to the prospect of judges and legislators paying even more attention to clinical advice. They have begun to apply Wexler's "therapeutic jurisprudence lens" to a wide range of issues in mental health law and, increasingly, in other legal areas as well.
Anticipating the obvious objection, Wexler repeatedly denies that his proposals will lead to a "therapeutic state" marked by paternalism, coercion, and unwarranted state intervention into people's lives. He agrees that therapeutic improvement is not the law's only goal, and insists "the law can use mental health information to improve therapeutic functioning without impinging upon justice concerns" (1993: 21). Claiming only that "other things being equal, mental health law should be restructured to better accomplish therapeutic goals," Wexler acknowledges that "whether other things are equal is often debatable, and therapeutic jurisprudence does not resolve that debate" (1993: 21).
Despite widespread acceptance of Wexler's assurances (e.g., Perlin, 1994), from a critical perspective there is cause for alarm. The legal system and the mental health system have each treated individuals poorly, and often oppressively. The prospect of the two systems working together even more closely risks increased social control disguised as mental health treatment. As demonstrated elsewhere in this volume, state coercion, paternalistic and otherwise, has fallen most harshly on women, people of color, lesbians and gays, and the working class, as well as on nonconformists and political outcasts in all segments of society. Petrila warned that therapeutic jurisprudence "reinforces the existing distribution of power in the relationship between treater and treated" (1993: 882). According to Slobogin, "the danger lies in denying it will have this effect, because doing so may foster a tendency to ignore other values or create a temptation to see the convergence of therapeutic and other values where none exists" (1995: 214).
In Melton's view, there is "little reason to expect that a bit more science will lead to more effective decision making or, more importantly, more just processes and decisions. . . . Mental health courts -- and, some would argue, the legal system in general -- have been notoriously ineffective in doing justice effectively" (1994: 216). He agrees with Wexler that "justice and mental health are not necessarily in conflict" and that "doing justice well probably has therapeutic effects." But he cautions that "we should achieve a bench and a bar that do justice well before we encourage them to act as mental health professionals, too" (216). The law's failure to ensure justice, in the mental health system and elsewhere, puts a different light on Wexler's hope that "therapeutic jurisprudence may then grow tremendously in scope to embrace all, or virtually all, legal arenas" (Wexler, 1995: 229).
Cognitive Science and Psychological Jurisprudence
Small (1993) noted the limited but growing impact of a third form of psychological jurisprudence, based on cognitive science. This growth is not surprising, given the increased influence of cognitive perspectives in recent decades. Unfortunately, because it emphasizes internal mental processes and de-emphasizes "affect, context, culture, and history" (Prilleltensky, 1994: 88), cognitivism encourages efforts "to adjust the mind, and not society, in order to promote well-being" (Prilleltensky, 1994: 93; see Moghaddam and Studer in this volume). Critical psychologists of law, consequently, must be wary of efforts to demonstrate a "relationship between the behavior of law and universal processes of human rationality" (Small, 1993: 10; see also Wiener and Small, 1992).
Some believe there are already grounds for cognitive jurisprudence to develop quickly. Wiener et al. (1993) found, not surprisingly perhaps, that "85% of published [psycholegal] studies make use of information processing concepts [rather than the dignity-based perspective that Melton advocates]. Given these results, the question remains: From where does one find the meaning of psychology and law's core values?" (Wiener et al., 1993: 92-93). They answer their own question with an essentially status quo position:
For a jurisprudential theory to have maximum impact on the legal process it will need to find its legitimacy, in part, in the values that make up the conventional knowledge of the community of scientific psychology. Psychological jurisprudence can only be as powerful as the research base that justifies its ultimate positions. A unified theory of psychological jurisprudence ought to begin with the conventional knowledge of the science of psychology and law.(94-95)
Clearly, limiting policy to whatever "the consensus of the research community" supports will not bring social change. Along with a potentially repressive therapeutic jurisprudence, the search for "universal processes of human rationality" dims the isolated calls for a critical psychology and law. To the mainstream, apparently, even a moderate justice-based jurisprudence such as Melton's is beyond the pale: "Operating outside the consensus of the paradigm, psychological jurisprudence is in danger of becoming a political platform adhered to by some members of the community but not driven by the growth of psycholegal knowledge" (Wiener et al., 1993: 93). Critical perspectives, of course, are not part of the mainstream consensus.
CHALLENGING SYSTEM LEGITIMACY
I have argued so far that psychologists of law too often ignore law's role in maintaining an unjust status quo. What can critical psychologists do about this? Free of traditional assumptions and sympathies, we can nudge the mainstream away from narrowly focused examination of trivial and noncontroversial topics. And we can advocate fundamental changes in the law, as well as alternatives to it. Central to this task is examining how the legal system maintains its legitimacy, which enhances respect for, and obedience to, law and legal authorities (Fox, 1993b).
Dictatorial governments use open force to impose policies on resistant populations and prevent demands for justice. In contrast, liberal states claiming to be representative democracies use coercion and manipulation only when necessary. More often, the state limits fundamental challenges by teaching the population that the system is legitimate. Thus, people obey the law not just to avoid punishment, but because they believe the authorities have the right to make demands (Kelman and Hamilton, 1989; Turkel, 1996; Tyler, 1990). It is partly for this reason that disagreement among judges confuses the public about what the law really is: It shakes our faith in the authorities' legitimacy. We may conclude that individual judges are corrupt, stupid, racist, or biased, but we often believe that the underlying law is above politics rather than part of it. We laugh at cynical jokes about lawyers and sometimes even judges, but there are few jokes about law itself.
As Tapp pointed out, inaccurate beliefs about human behavior strengthen the law's legitimacy. She described the "crippling assumption" that law is the only source of "justice, obligation, and responsibility" and warned that "if [this assumption] continues . . . then the emergence of an authoritarian repressive law is more likely" (1974: 54). In other words, we often believe that people behave justly and responsibly only because the law requires it -- that we cannot be good unless we are forced to be good (Lerner, 1982). This belief may partly reflect lack of awareness that law is a recent invention. So-called "primitive" groups resolved disputes and maintained order without legal systems for most of human history (Barclay, 1982; Fox, 1985, 1993a, 1993c).
In the remainder of this chapter I note several topics particularly relevant to the crucial role of legal fictions and myths in enhancing system legitimacy. In these areas and others, critical psychologists of law should examine subjects Melton suggested are central to a values-oriented psychological jurisprudence: the symbolic impact of law, the subjective meaning of law in everyday life, and legal socialization. What does law mean to us, and how does it come to mean that, and what are the implications for justice?
Procedural Justice, Substantive Justice, and False Consciousness
"The rule of law" assumes that the procedurally correct application of general principles is best even when it brings unfair results in particular cases. By directing attention to procedures rather than trying to reach a fair result (seeking procedural justice rather than substantive justice), legal authorities deflect calls for social justice and fundamental fairness. The belief that authorities use fair procedures enhances system legitimacy despite negative outcomes (Tyler, 1990; Tyler and Mitchell, 1994). When the law insists that the rules of the game count more than the outcome, we tolerate injustice because it seems to result from a legitimate procedure.
Although concern for due process and fair procedures is important, it is not enough. After all, the system routinely gives lawbreakers, welfare clients, and political activists procedurally correct hearings before locking them up, cutting off their checks, or rejecting their calls for social change. As Haney noted,
We are at risk of creating a perfect justice machine that grinds up the victims of societal dysfunction and disarray and deposits them into the legally sanctioned sea of oppression and human misery that is our prison system. Even if all our due process dreams came true in psychology and law, and this mythical justice machine ground away with perfect procedural precision and accuracy, much substantive injustice would still remain. (1993: 381)
Tom Tyler, the field's leading investigator of procedural justice, repeatedly notes that a procedural focus can lead to false consciousness: "Government leaders may find it easier to create conditions of 'perceived fairness' than to solve problems or provide needed benefits" (Tyler et al., 1986: 976; see also Tyler and Mitchell, 1994). Yet despite his awareness that the authorities may manipulate us, Tyler devotes little discussion to how frequently they do so. In Why People Obey the Law, for example, Tyler claimed that "the study of procedural justice is neutral about the quality of the existing legal system"(1990: 148). He added that "it is beyond the scope of this book to evaluate whether those studied 'ought' to be more or less satisfied than they are with legal authorities" (1990: 148). Tyler's approach makes sense only from a perspective that presumes the benevolence of legal and political authorities. In contrast, Haney bluntly criticized the Supreme Court's "let them eat due process" attitude and "the national obsession with process [that] has allowed us to ignore dramatic inequalities in substantive outcome" (1991:194).
The belief in system legitimacy dampens public protest when the government uses procedurally correct coercion and manipulation to inhibit challengers (Fox, 1993b). State legislatures in the United States, for example, routinely devise procedural hurdles to exclude nonmainstream political parties from the ballot. Procedural rules raising the cost and time of litigation make lawsuits against corporations or governments difficult to pursue, but wealthy corporations can easily afford lawsuits against activists. The law limits police surveillance, infiltration, and repression of activist groups -- unless the police use appropriate procedures. At trial, judges following correct procedures typically prevent defendants from presenting a necessity defense based on their motivations for breaking the law. Judges also refuse to tell juries about jury nullification, the doctrine that allows jurors to acquit despite the evidence if they believe the defendant's actions were justified (Fox, 1993a).
What can critical psychologists do about false consciousness and the failure to ensure substantive justice? We can expose procedural flaws where they exist, but we must remember that the system can always adjust its practices to reach its goals. We can also support victims of procedurally correct injustice, but here too we must remember the limitations of our efforts. Governments and corporations with far greater resources will adopt any useful methods we develop (Haney, 1980). For example, social scientists devised scientific jury selection to help the Harrisburg Seven defend themselves against Vietnam-era conspiracy charges (Schulman et al., 1973). Today, though, it is primarily large corporations rather than activists or criminal defendants who can afford to use it.
Most important is to assess substantive results as well as procedural fairness. To do so, we must consider a difficult question: Which "independent definitions [of justice] . . . might 'make sense' from a psychological perspective" (Haney, 1993:379)? Unfortunately, "Psychology and law has continued to operate without a shared conception of, or commitment to, justice. We have no clearly articulated theory of value and, therefore, no overarching vision with which to address and reform the legal system" (Haney, 1993: 379). Tyler and Mitchell noted that "the important role of ideology in shaping individual reactions to experiences highlights the need to consider the sociopolitical context within which legal decisions occur" (1994: 795). But in their view, although "psychologists do acknowledge the importance of the larger society in shaping subjective reactions to particular experiences, . . . they do not typically focus on social structural or cultural factors in their analyses" (795). A critical psychological jurisprudence would focus not merely on perceptions of fairness, but on the real consequences of inequality, oppression, and exploitation in particular sociopolitical contexts.
Law, Capitalism, and Distributive Justice
Considering the "social structural and cultural factors" affecting substantive justice should lead psychologists of law to examine law's role in endorsing and protecting capitalism and class inequality. Capitalist theory is steeped in unquestioned psychological assumptions about an essentially selfish human nature (Wachtel, 1983). Yet psychology-law generally ignores these assumptions. It barely scratches the surface of legal issues related to class inequality and distributive justice. Is the profit motive really the highest value of human motivation? Is economic growth really more important to individual well-being than dignity, empowerment, and a psychological sense of community? Only an understanding of capitalism's development explains the changing nature of many basic legal principles. For example, judges and legislatures in the nineteenth century transformed the law's older equity and fairness norms to suit commercial interests (Horwitz, 1977). Under the guise of applying neutral principles, the law deflects attention from substantive oppression, as when the concept of individual merit maintains racism in the workplace (Haney and Hurtado, 1994). In this context, the law and economics school's increasing influence is not surprising.
Law in capitalist countries endorses resource distribution according to social psychology's equity norm: Goods are distributed in proportion to inputs of time, effort, money, and so on. A critical perspective redirects attention to competing principles of equality and need (Fox, 1993a, 1996). What can legal psychologists say about substantive justice, and about the consequences of injustice, when assessing minimum wage and similar requirements, affirmative action and its alternatives, equal pay and comparable worth, or the definition of "disability" in a job-scarce economy (Fox, 1994)? How much more than a typical worker's salary should the law allow a corporate executive to receive? Psychologists of law devote endless effort to uncovering false judicial assumptions concerning jury biases, adolescent competence, and similar topics that liberal academics find interesting. There is no comparable effort to uncover false assumptions that prop up capitalism, particularly capitalism in the welfare-state version that liberal academics prefer.
When psychology-law researchers do address issues related to capitalism, they pose little substantive challenge. As an example, in recent years psychologists have begun to examine the nature of the business corporation (Tomkins, Victor, and Adler, 1992). Psychologists and legal researchers examine how executives and managers make decisions and how workers carry them out. They propose methods to reduce risky and harmful decisions and enhance corporate responsibility and ethics. These approaches fall squarely within the liberal reform tradition of trying to reduce capitalism's negative consequences. Unfortunately, as with efforts by industrial-organizational psychologists to maintain managerial control over workers (Prilleltensky, 1994), these efforts do nothing to challenge the essence of corporate dominance (Fox, 1996).
Corporate law lets enormous numbers of people pool their resources to fund large-scale enterprises. Corporate executives make decisions in the name of the corporation to maximize shareholder profit. Presuming that the corporation is a legal person, United States law grants it constitutional protections. Shareholders are not liable for damage to workers, communities, or the environment. Avoidable harm rarely leads to civil penalties, let alone criminal ones. Evidence of problems that come with large size -- hierarchy, conformity, role demands, and others identified by social and organizational psychologists -- is ignored. The law, in other words, has created institutions that now dominate the world economy and increasingly dominate and homogenize the world's cultures (Bonsignore, 1994). It has done so over the past century and a half, as judges and legislators reversed earlier legal principles that restricted the scope, size, and function of corporate institutions. In the face of this dominance, in the face of the law's use of a bizarre "group mind" theory as the basis of legal doctrine, psychologists devote more effort to giving the corporation a human face than to uncovering the facelessness beneath the mask (Fox, 1996).
The Reasonable Person Fiction
The law frequently uses the fictional reasonable person as a standard for behavior the law expects. As demonstrated by legal psychologists in a variety of arenas, the law's view of what behavior is reasonable often conflicts with the behavior and beliefs of real human beings (Horowitz and Willging, 1984). The law takes little notice of the diversity of behaviors that might be equally reasonable.
Historically, the law called the reasonable person the reasonable man. Although the language has changed to suit modern sensibilities, the concept itself is pretty much the same. The fictitious reasonable person is still purely rational in strict economic terms: a self-oriented, asocial individual (well off, white, heterosexual man?) motivated not at all by concern for others, and unusually aware of the law's logic and assumptions. Critical psychologists might explore the degree to which real people's views of justice and fairness conflict with the law's fiction. How should notions of what is reasonable change in the good society?
The Side-Effects Problem
Mainstream proposals for legal and policy reform sometimes succeed. Unfortunately, successful reform efforts often bring unpredicted and unintended side effects because so many seemingly separate social problems are actually related. Focusing on narrow, "manageable" problems, particularly at the individual level, rather than carrying out system-wide change can cause the resolution of one policy issue to complicate others (Fox, 1991, 1993b; Haney, 1993; Roesch, 1995). Beyond the complications of narrowly focused individual-level solutions lies another possibility: Law-based solutions to social problems may bring short-term gain at the expense of greater dependency on legal authorities, reducing people's ability and motivation to work with others to devise community-based solutions (Fox, 1985, 1993a, 1993b). Noting that the centralized state inhibits both individual autonomy and a psychological sense of community, community psychologist Seymour Sarason (1976) identified this phenomenon as the central anarchist insight. Although conservatives who criticize "welfare dependency" also make this argument, we should not dismiss it out of hand. Critical psychologists should acknowledge the reduced autonomy and sense of community as a serious issue. But we should also insist on structural change to revitalize communities and eliminate our economic and legal system's destructive inequality.
Both law and psychology have supported an oppressive status quo. If the field of psychology-law merges the techniques of psychology's mainstream with law's oppressive tendencies, the result will be even greater injustice. The appeal of therapeutic jurisprudence raises such a possibility, as does the routine empirical work of legal psychology that helps the law do its job better. Psychology and law's "client" -- the legal system -- scarcely needs help to retain its dominance. Tragically, psychologists help the law become even more effective at benefiting some at the expense of others. This is particularly the case when the perspectives of women, people of color, the poor, and other victims of the legal system are notably absent from the field (Haney, 1993).
On the other hand, there is a ray of hope: the historical presence in psychology-law of a focus on justice, combined with Melton's psychological jurisprudence based on values of human dignity. A critical psychology and law can seek to answer crucial questions: What would we like to see in the good society -- not just what do we think it practical to advocate today? Can we alter law so significantly that it can become a force for justice, or does law just help those who already maintain control? As we answer these questions, we can raise public awareness about the nature of law and its consequences. Instead of helping law portray itself as a neutral seeker of justice, we can expose false consciousness and "awaken the sense of injustice" (Deutsch and Steil, 1988). Throughout, we can "aspir[e] to the role of transformers, system shakers who risk alienation but seek real substantive change" rather than remaining "content -- even complacent -- to serve as technicians and tinkerers in the law" (Haney, 1993: 384).
Unfortunately, if law is always an ally of the status quo, then we cannot radicalize it. As Haney cautioned, "You cannot change a system from which you seek acceptance, and the costs of making our work palatable to an inherently (and increasingly) conservative legal system may simply be too high" (1993: 385). This caution takes on added significance in light of Herman's broader question: "Does the rise of psychology herald a new chapter in the evolution of humanism or merely indicate that Big Brother is bright enough to arrive cloaked in the rhetoric of enlightenment and health?" (1995: 315). On the one hand, trying to turn the system in a progressive direction supports law's victims. This support is crucial. On the other hand, working as insiders within the law by filing appellate briefs and similar activities legitimizes legal institutions while draining energy and focus from advocating fundamental alternatives (Fox, 1993b). Can we sufficiently salvage law? Resolving this dilemma is the ultimate task for a critical psychology and law.
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