The public perception that criminal conduct is increasingly excused on psychological grounds, notwithstanding a markedly small statistical success rate of diminished capacity defenses, evinces misplaced frustration over a broader cultural reluctance or inability to assign moral blame. Psychology is seen as feeding a kind of determinism that rationalizes evil behavior and precludes retributive punishment as a matter of scientific principle. This perception is accurate to the degree that it reveals our legal system's fundamental confusion of purposes in judging and explaining criminal behavior. This confusion is engendered by the indeterminacy of language, which entangles the verificationist mode and purpose of science with the aspirational mode and purpose of metaphysics. The difference between the two linguistic forms roughly corresponds to Ludwig Wittgenstein's distinction between propositions expressive of logical necessity (what can be said) and ethical sensibilities expressive of transcendent value (what can only be shown). The entangling of these forms in forensic psychology becomes manifest as a merger of causes, which explain actions in impersonal verificationist terms, and reasons, which infuse meanings to actions through something akin to literary interpretation. These entangled concepts are discussed in Part II of this paper.
Joel R. Cornwell,
The Confusion of Causes and Reasons in Forensic Psychology: Deconstructing Mens Rea and Other Mental Events,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol33/iss1/6