The law, Stanley Fish has written, “wishes to have a formal existence.”1. By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.
Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study.
The starting point of Nadler and McDonnell’s essay is the inability of the law to contain outside thought. Relying on their own empirical analysis and other research from social psychology, they write that blaming is “intuitive and automatic” (p. 257). For Nadler and McDonnell, research into social psychology validates Emile Durkheim’s idea that blaming people for moral or societal wrongs fosters a sense of social solidarity. Nadler and McDonnell do not pass judgment on this point or remark on the limits of Durkheimian sociology. They do not say, for example, whether or not lawyers understand this idea and use it to the law’s advantage. They accept the law’s formalism. But their value neutrality has its merits, which is to say that they approach this complex topic with keen insight into the literature regarding social psychology, responsibility, and blame and raise profound questions about the limits of the law’s ability to ask jurors to assess guilt without making value judgments about character.
Nadler and McDonnell conducted three (non-random) empirical studies that asked three different sets of participants to assess blame and responsibility with two or three sets of altered facts. In one experiment, a man has a trailer that contains either methamphetamines or some highly inflammable fertilizer. In putting out a fire that was caused by either the methamphetamines or the fertilizer, two firefighters, using helicopters, died (Nadler and McDonnell further complicate the issue by noting that the firefighters approached the fire from the wrong direction). In a second experiment, a man stores some oxygen tanks in a shed. He does so (1) because his daughter has a serious respiratory illness; (2) because he just started his own business; or (3) because he is a high school football coach and administers oxygen to his players, even though it is against the rules to do so. One night, some youths, who were hanging around the shed and unaware of its contents, accidentally started a fire, which ignited the shed. One of the youths died. Finally, in a third experiment, a woman lives with two dogs. In one version, she is a doting and giving aunt, has many friends, and takes good care of her dogs and herself. In a second incarnation, she ignores her nieces, watches trashy television shows, smokes cigarettes and eats junk food. In a third version, she lets her dogs run wild, causing trouble in the neighborhood. One day (and this applies to all versions), the dogs get loose and maul a boy, age 11, to death.
In each of these stories, the participants overwhelmingly either diminished or released from blame those who came across as honest or who had good intentions and blamed the least worthy characters. Nadler and McDonnell’s findings support other studies in social psychology regarding the connection between how people process information and how they assign blameworthiness. On a larger front, their findings crack the façade of the criminal law’s formalism regarding separating judgments about guilt from judgments about the character of the actor. Motive may not matter in criminal law, but “motivational forces can mold basic judgments of blame, responsibility, causation and intentionality” (p. 259), Nadler and McDonnell write. At an even deeper level, then, they force us to question the notion that responsibility is a moral concept, intrinsic to our existence. Indeed, it is not even a juridical concept, an assignation given to us by law for good behavior. In Nadler and McDonnell’s reading, responsibility is a psychological assessment used to favor those we like, agree with, or are unwilling to punish.
Nadler and McDonnell have constructed an interesting empirical study regarding blame and responsibility and combined it with keen insights into the problem of punishment. Their article raises many questions about the form and content of criminal trials that needs to be further analyzed and discussed by academics and policymakers. By examining and explaining how ordinary people approach the problem of guilt and punishment, an approach that differs markedly from the law’s understanding of human behavior, their empiricism informs legal theory. It therefore carries with it deep implications for jurisprudence.
- Stanley Fish, The Law Wishes To Have A Formal Existence, in The Fate Of Law 159 (University of Michigan Press, 1993).