Evening star., 1956-03-11

effective as a deterrent. The
other is that most people have a
feeling that Justice requires law
breaker to suffer. just as they think
that sin should entail suffering in
the sinner. I do not share that
feeling. which is a vestige i. of
very ancient, primitive and IRA
tional beliefs and emotions. How
ever, it would be unwise. and in
cidentally impracticable to disre-
gard it as a constituent element; it
Is extremely strong in most people,"
Whot Does Society Won't?
Certainly most lawyers and doc
tors feel that the time has come for
society to decide what 1t wants
from its criminal law. What COM
bination of the following objectives
does it want?
. Punish criminals as a deter
rent to others?
. Make the criminal suffer in
spirit of vengeance?
. Protect itself from further
nialfeasance by the criminal?
. Find a way to treat legal nom
conformists. lie. criminals, as hui
namely as possible?
The answers to these questions
as they develop in the law will
probably, to a high degree, deter
mine how great an influence psy-
chiatry is to exert on the evolution
of criminal justice.
Regardless of the desirable or
logical goal. 1t may be that the
present state of civilization does
not now permit as a practical
matter - any alternative to the
theory of criminal responsibility eur
law has been following for hundreds
of years.
Thurman Arnold, former United
States trust-buster. Federal judge
and a man regarded by his pro-
feSSion as an exceptional thinker,
is one who has taken this general
view. Arnold, according to his in
terperters. Is said to believe that
the union Of law and the social
sciences is impossible because it
would tend to undermine popular
faith in legal order and certainty.
He once remarked:
From any objective point Of
view the escape of the law from
reality constitutes not it's weakness
but its greatest strength. If
judicial institutions become too
sincere too self-analytical, they
suffer the fate of ineffectiveness
which is the lot all self-analytical
people. -
Are Experts Incompetent?
Warren Hill, professor of law at
Ohio State University and student
of Arnold's. further describes his
mentors ideas this way:
Common beliefs about human
conduct are, of course, utterly ir-
reconcilable with psychiatric find
ings and insights, but this is no
objection to their being embodied
in legal theory because the function
of the jury which is to follow this
theory is moral Judgment, not dag
nosis or therapeutics. On this view,
lay jury as well as lay witnesses
are far more competent to deter
mine responsibility than the ex-
perts. The experts are incapable
OF reaching moral judgment
which is responsive to the question
the jury must answer; for they are
strangers to the folklore of human
behavior, If one does not believe
in the existence of witches, he can
hardly be of much utility as a
witch-hunter."
This does not mean that Judge
Arnold, Justice Holmes, or any
other legal scholar who has found
social justification for our criminal
law system, has been satisfied with
its effects on the individual. But
they have appeared to believe that
society would find to its detriment
any radical legal departure from
the existing criminal responsibility
theory.
The As If Doctrine
Finally, it should be noted that
many psychiatrists believe that
normal" people need the support
of law and its threat of punishment
as a base from which to conduct
their affairs. Without it, accord
ing to this view, the average citi-
zen would be pretty well up-ended.
So number of the social scientists
are now preaching the "as if" doc
trine. which holds that individuals
must be treated by the law as if
they had full control of their be-
havior, whether or not such con-
troll is scientific fact.
But there is nothing novel in
this idea either. In 1941 the late
Robert H. Jackson wrote Supreme
Court opinion in which he OBJ
served:
How far one by an exercise of
free will may determine his general
destiny or his course in particular
matter and how far he is the toy of
circumstance has been debated
through the ages by theologians,
philosophers, and scientists. What
ever doubts they have entertained
as to the matter, the practical busi-
ness Of government and admin
istration of the law is obliged to
proceed on more or less rough-and-
ready judgments based on the as
sumption that mature and rational
perSona are In control Of their own