Crime and Mind
September 29, 2011
-There won’t be much agreement about what the answer to the test is. If you know you can answer the specimen
question, you will have the ideas and information to answer the test question. Make a plan. Look at it. See if it is a logical
order in which to present the material. In order to get good marks for the course and this question, you can’t just give the
answer and present the ideas. You have to make your own argument that relates to the course material. You can’t answer
the question without using at least two of the sources we are talking about in today’s lecture. You have to address what
these sources are saying and what the strengths and weaknesses are of these sources. Don’t avoid being ambitious and
answering the difficult question. They need to see our argument. In an academic essay, they must see our argument.
However, the argument doesn’t have the same weight in voting or in a relationship. In an academic argument, it doesn’t
matter what you think. The fact that you think it doesn’t carry weight. Don’t use “in my opinion, I feel, etc”. Assert the
argument with a factual back-up. Make your argument in the answer of the question, and make the argument for what you
are arguing. That’s the bottom line. Throw yourself into this project. Don’t write rhetorical questions in essays.
-You will have the 4 readings to draw from. You don’t necessarily have to write about all 4 but you can’t get a good mark
by ducking them.
-We will start off by reprising where we got off to last week, and we will talk about what’s happened in Canada, the UK,
and the US after M’Naghten. Then we will look at 3 difficult sources (the readings). 2 of these sources attempt to develop
a philosophical position, which in some way integrate psychiatric testimony and legal reasoning, and argues that you can
have a coherent insanity defence. We will talk about the ways in which, on its face, it seems incoherent. They will
construct two arguments about how you can think about the insanity defence and their insanity defence is one of their
defences is similar to that of aughten and the other not so much. However, they will show that in their view, you can have
a coherent insanity defence that allows psychiatric testimony to be relevant to the law in a coherent way. Then we will go
on to look at a third source, a writer who will develop a kind of subjectification critique of the role of psychiatric and
psychological thinking as it relates to the law (Foucault).
Recap From Last Week
Intent (Pre-Mid 19 Century)
-Last week we spoke about intent and the challenges to intent doctrine that you get from psychological and sociological
thinking. But for the most part, we were outlining the way intent law works, in terms of traditional-legal model, which
focuses primarily on reason. Traditional-legal is interested in questions about reason, which assumes that most of the
time, actions are willed. The theory isn’t much interested in feeling states, but is interested in questions about reason.
Specifically, the model looks at the reasons why people do things, and whether the reasons may provide
excuses/justifications. The problem with Traditional-Legal model, is that the concept of reason at work there (being what
are the reasons that you’ve had in mind) is connected with a deficient and weak view of insanity, particularly partial
insanity. The law has been able to deal with situations when people are in such a deranged state that is obvious.
-The law has always been able to deal with situations (relatively sensitively), where individuals are in such a deranged
and frenzied state, that the evidence just suggests that they weren’t really in control of their actions. Thus, they can really
have been acting reasonably at all (yelling, screaming, words not making sense, etc). The law has for a long time been
comfortable with saying that such individuals are not really responsible. However, until the mid 19 century, individuals
that we now may regard as very mentally ill, having the same symptoms as those very frenzied people, but who seem to
plot througthor think in a disordered way (paranoid schizophrenia, people who believe they are being attacked, etc.), until
the mid 19 century the law regarded those people as responsible. They saw the evidence that they were thinking,
reasoning, and plotting, as evidence that they had the capacity to control their behavior and thus should be responsible.
The core idea is that in those circumstances, they were focused on the fact that the person had their own responsibility for
coming to reasonable judgments. So they thought that those were really people whose thought had gone astray. They
didn’t think of it as individuals who’d has an inner defect, which drove their thoughts constantly astray. They thought that
these were people who had made a bad judgement and got stuck in it, and were therefore responsible for not having seen
things properly. So those people were held responsible.
Mid 19 Century
-When we get the change in the 19 century (leading up to M’Naghten), we end up with a doctrine that includes one
crucial idea that the courts become persuaded of. The crucial idea is that a disease of the mind, gives rise to delusions
and hallucinations. These courts become persuaded that a person with partial insanity (one who thinks he’s being
conspired against, etc) can’t control those delusions and that the delusions seem real to the person. Thus, they believe
that this is kind of psychologically determined. The inner-workings of the mind are producing these distortions of reason
and perception. However, they then basically made the argument that we should excuse one only if, assuming those
beliefs are real, that their actions would have been justified (ex. You shoot someone because you believe their replica gun
is real and they are going to shoot you). So the strange compromise is that the claim is made that if you take someone
with this distorted perception (someone out to get me, etc) and then you have to ask what would be the right thing to do if
that were the case. The contradiction is that this person who is psychotic, with very distorted perceptions, if going to be
regarded as an autonomous, thoughtful, responsible subject, given those wrong perceptions as if they were facts.
Psychiatrists and psychologists have been arguing ever since that just isn’t a good depiction of what our mentally ill
individuals are like. They may have these delusions, but they also, in general, have an orientation that is fundamentally
disordered. So to treat them like an ordinary human being doesn’t make any sense (from a psychiatric point of view)
though it makes sense from a legal point of view.
-They have been wrestling with the instability of this ever since. If intentionalism and voluntarism is true and people are
seen as acting through reasons, and psychological determinism is dangerous, then why do you accept the psychological
determination of delusions and hallucinations at all? And if delusions and hallucinations can be the result of caused psychological processes, then why can’t other things and behaviors and aspects of behaviors and response be viewed
from a psychological deterministic lens? It could be because this would lead to a threat against criminal justice all
-We thus see that it is difficult to draw a rational line about where you should excuse on the grounds of mental disability
and where you shouldn’t. We have talked about cases that are adjacent to the M’Naghten rule, but just step over it (we
will talk about a Canadian case today like that). We will talk about where in some readings of M’Naughten you might
excuse someone ho believes that one is out to get them, and an assault ensure because they think it will thus save their
life. However, on a strict M-Naghten reading where one thinks they are a superior being and they assault someone for not
obeying their superiousness, the courts may not be interested in that because it doesn’t correspond with their legal ways
of thinking. Psychiatrists and psychologists have always said that there are these cases that are just the other side of
M’Naghten. They have the same disorders but that just don’t fit in. That’s the problem. People have said more broadly that
psychosis, in particular, doesn’t cause people to act like ordinary autonomous subjects given their delusions. It’s more of a
situation where thoughts and disturbing behavior, their whole behavior orientation is guided by their psychotic state. So
they think we should have a broader concept of what we excuse. The ultimate shifting of the lines says “why do we if we
believe in psychology and think psychological science is good at explaining behavior, who do we only defective behavior
psychology is good at explaining behavior. They believe that normal psychology is good at explaining behavior. The
epitome of that was a criminological theory called the normal learned behavior theory. It holds that crimes are normal
learned behaviors. People learn to be criminals in the same psychological way that they learn to be good. As a
consequence, it’s morally unfair to punish who have happened to learn to be criminals because they aren’t doing anything
fundamentally different than those who have learned to be good.
-Where you draw the line between some being responsible and some not is a difficult and powerful matter. It’s hard to
decide where that line should be drawn.
-One implication of that instability: In many jurisdictions, the lines have shifted around. Each of the jurisdictions that affect
Canada (US and UK) have done different things about the insanity law since M’Naghten.
-By the time of M’Naghten, even though the US isn’t part of the British Empire, The M’Naghten rule became incorporated
as the basis of the insanity defense in the US.
-Some states, however, have subsequently incorporated another notion, but it wasn’t a majority. This is the notion of
-Remember that there are 2 prongs of M’Naghten:
You would be excused if, on the basis of having a disease of the mind you:
1. Didn’t know the nature and quality of the act (didn’t really understand what you were doing)
2. You understood what you were doing, but in that very narrow way you, as a reasonable person, didn’t know it
was wrong. Thus, you would have thought it was right. So you were deprived of the possibility of making a good
-In some states, they added to that a 3 prong in which, if you knew what you were doing, and understood that it was
wrong, and you didn’t want to do it but you felt compelled, you could claim that your disorder gave you an irresistible
impulse. This is a doctrine, which caused a lot of controversy that exists to this day. Specifically whether there can be
such a thing as an irresistible impulse. This usually happens in severe cases of mental illness. This theory is different from
the other two prongs because it accepts that some people’s autonomy as a voluntary actor is compromised. The other 2
see an actor more as a voluntary agent.
-In 1954, a change happened in insanity law. A case called Durham happened. People had been arguing over insanity
law for quite some time. Durham is someone who is diagnosed as a psychopath. under Durham they expanded insanity to
become a “product test”. All the law is gonna require is that the court (jury) becomes convinced that the crime is a product
of the mental disorder. Thus, the 2 prongs are essentially irrelevant. As long as the crime was the product of the mental
disorder, that would be enough. Many criticize this heavily as a non-rule. The fact that you can make an argument that
psychopaths aren’t responsible is one of the reasons people don’t like it. There are many crimes committed by people
diagnosed as psychopaths. Thus, It becomes hard to define exactly what kind of product it has to be. In some courts, they
use continue to use the M’Naghten rule to define what the product relationship has to be. However, what about a case
where someone is obsessed with Britney Spears, you go to get tickets to a concert, you want to be in front, but end up
fighting with someone over the tickets and get charged with assault. What if the lawyer says the person has an obsession
with Britney and wouldn’t have been there otherwise, so the crime is a result of the obsession. The courts didn’t actually
rule like that because it had to be a product of the disorder in a more direct way. They had to show that somehow it was
the nature of the disorder that caused the person to assault. Again, it is very hard to draw the line. The product test is the
most embracing of psychology and psychiatry, without going the full way of saying that even non-disordered people are
determined in their criminal behavior. It allows the most flexibility for explanations and excuses of crimes. It lasts for about
20 years. Then new proposals are introduced.
-The American Psychiatric Association came up with a new model penal code, and one of those has an insanity rule. It
wasn’t actually legislation but was a proposal for legislation that they suggested to the states as a good insanity rule. It
isn’t as broad as a product test but it was used in Branner. It’s a slightly expanded M’Naghten rule. At this time, many
states had the irresistible impulse rule, in which a defendant wouldn’t be responsible for his conduct if it was a result of a
mental defect. In the new proposal, he lacks substantial capacity to appreciate or grasp the criminality of his conduct or to
conform his conduct to the requirements of the law. So appreciate the criminality of his conduct is meant to cover knowing
the nature and quality of the act and that its wrong it to conform his conduct to the law is meant to cover irresistible
impulse in some way. Appreciate is meant to be a richer phrase than knowing the nature and quality of the act. It’s argued
that there are mentally ill individuals who might be able to tell you that they have an appreciation but their actual
appreciation is flawed. There are psychopaths who can’t appreciate because they just don’t care about anybody else, but
they don’t really grasp what’s going on because of their severe mental illness or psychosis. So it’s meant to be a bit
broader than M’Naghten. Then there’s also an argument about what wrongfulness means and they have an argument that comes back in Canada about how to handle situations in which someone knows their conduct is illegal, but it seems to
them that their conduct is right. This isn’t because they have abnormal morals but because their delusions and
hallucinations is making it seem like a justifiable breach of the law (a necessity type case). SO they build up small bits of
case law. This isn’t like the product test where it eventually bursts the banks of insanity. It is relatively narrow (more
narrow than the product test) but somewhat broader than M’Naghten.
-In sum: you are not responsible if your mental disorder makes you unable to appreciate the criminality of your conduct, or
unable to conform your conduct to the requirements of the law, even if you appreciate the criminality of your conduct (it’s
thus an irresistible impulse then).
-History intervenes, and an event happened with regards to insanity law. John Hinckley attempted to assassinate Ragan
because he is in love with Jodi foster, and thinks this is how she will fall in love with him. There’s a strong reaction against
any broad insanity verdict and people wanted to throw insanity out of this case altogether. Congress pushed for
abandonment of the typical insanity rules. The insanity defence reform that follows, actually limits it right down to a very
tight standard. The most you can have is an extremely tight M’Naghten reading. It was tightened because the disorder has
to be a serious mental illness. It has to be a psychosis really. So you cant argue that other things give rise to the
-Following that, some states abandoned an insanity law altogether, which doesn’t make much difference anyway. If you
have an insanity law, where you have an affirmative insanity defence in which the person meets the legal criteria of
insanity, the person raising it has to prove it, and then there is a special verdict. If, however, you say we won’t have it,
then the defence will raise evidence to counteract and cast doubt on whether the person has the requisite to commit the
offence because of their mental disorder. So it doesn’t actually make much difference.
-Some other states made another adjustment, which is to bring in GMBI standards (guilty but mentally ill). The reason for
this is that in the US, judges give the defence a bit more flexibility than in Canada or the UK to argue a position that’s not
consistent with the law. So defence council in insanity cases who couldn’t argue whether the defendant knew the nature
and quality of the act and so forth, but knew and could show that the person is severely mentally ill and needed treatment,
could show evidence on the treatment or lack thereof in prison. Thus on humanitarian grounds they would influence the
judge to find him not guilty by reason of insanity so he can get the help he needs in a hospital. Guilty but mentally ill is a
prosecution gambit that says they will find the person guilty but mentally ill, which will send a message to corrections to
give them adequate psychiatric care. Thus they are guilty, and will be punished, but they will also receive treatment.
-Essentially, insanity is thus tightened because it removes the defence insanity argument and thus after the US had
experimented with broader insanity defences, they wound up with a narrow one.
-In the 1950’s they take a very different approach than the US. They had broader proposals that were similar to the
product test, but they don’t end up happening. They eventually decide to sidestep the insanity notion most of the time.
They leave the rule as M’Naghten and the common law around it. However, they bring in a new idea called hospital orders
in 1959. The hospital order allows one to be found guilty and then sentenced indefinitely to a hospital. This has nothing to
do with the 2 prongs, and they’ve actually already been found guilty of that. In these cases, many actually plead guilty.
They are found to have been responsible for the crime, but on the basis of their serious psychiatric condition, they will be
sentenced to a hospital indefinitely, not to be released until they are deemed to be safe. So this is a way of sidestepping
insanity altogether. People felt that there were too many insanity trials in England, so this was the response.
-They also bring in another linked notion, which is a change in the homicide law, which would allow a person’s murder
charge to be reduced to manslaughter on the grounds of diminished responsibility, which is easier to prove than the
insanity standard. and then you can get a hospital order for that. However, this is only for murder. So this was another
change. The crucially dramatic idea, however, is to do away with most insanity trials by shifting the question away from
what was going on in the persons psychology at the time of the offence to what therapy do they need now.
-This doesn’t mean the English system has overturned everything. Most trials are done in the normal way. Hospital orders
aren’t necessarily rare, but they aren’t frequent. Most people are tried and convicted and thus punished in an ordinary
way. Nonetheless, it is a change.
-In Canada, we never experiment with the law very rdch. We stick with the M’Naghten base for the insanity defence
throughout this time. We don’t bother with the 3 M’Naghten rule that holds that if the delusions are true you ask yourself
if, assuming the delusions are true, would the act be legal or morally right. We use the phrase appreciate the nature and
quality of the act (like the model penal code suggested in the US), but we don’t mean anything big by it. When we talk
about appreciating the nature and quality of the act as opposed to knowing, we don’t mean you have to grasp, for
instance, what killing someone involves on an emotional or moral level. We just mean that you properly understand what
you did. Thus, not much of a change.
-The nearest thing to a change came in an argument about not knowing it was wrong meant. In Canada, we originally
ruled that not knowing that it’s wrong meant that the act would have to be legal if the delusions were true. However, we
accepted in a case called “Chaulk” that there might be circumstances where a person was doing something where if the
delusions were true, then the act would still be illegal, but it might be one that people were likely to excuse. So you had to
incorporate that in the mix, Thus, they called it morally wrong. The person had to be deprived of the capacity to know it
was morally wrong. This wasn’t really about their morality, it was more about this idea that there might be some situations
in which a person seems to have acted reasonably if the delusions were true, even if not legally. Chaulk was a notorious
case because many years after the case, he subsequently killed someone when he was on day release. Many felt that the
Chaulk ruling shouldn’t have really applied to Chaulk.
-In 1991, an important Canadian case called Landry happened. Landry was one of those that on a very traditional strict
reading of M’Naghten, it doesn’t get excused. He believed he was god and that his victim was Satan. At trial, his insanity
claim was rejected on a reading of the old M’Naghten way of thinking. However is was instituted on appeal. He knew he
was committing a murder, but didn’t really appreciate it enough, and his acquittal was seen as following from Chaulk. If he
was god and the victim was Satan, then though it wouldn’t be legal for god to kill Satan, it would be acceptable. The SCC
subsequently overturned the details but upheld the insanity acquittal and he was found not criminally responsible. -Thus, Canada has stuck close to M’Naghten, with maybe a mild expansion in a couple of areas (appreciate rather than
know, etc). You can see then, that both in the UK and US, that the M’Naghten rule doesn’t establish a stable basis for a
change between those who are blameworthy and those who are not. Further, it has historical effects. We haven’t been
able to settle on it. People have struggled to redefine it for years after, We will look at whether in some philosophically
bigger way, it’s possible to could come up with an account of why we should excuse some people and not others, that
might be more defensible than the narrow business of saying that delusions and hallucinations are psychologically caused
but the person acts voluntarily given that.
-We will talk about 2 attempts to come up with a coherent philosophical basis for the insanity defence. Overall we will talk
about the three readings today, Moore, Lipkin, and Foucault. They are all complicated readings. However, in each case,
there is a kind of intuition, though whether it works or not is a different matter. Our task is to get that intuition (more than
just scribbling down the details he is saying). Our goal is to really see what they are saying. What is the underlying idea
behind what they are saying. Important ideas have something that is alive at the core of them, right or wrong, which
makes them real ideas, rather than collections and notions.
-The Moore reading is a summary of an influential book he wrote. He is a philosopher of law. He attempts to construct an
argument that shows that something like M’Naghten is defensible and can be justified. His attempt to do so, and some of
the weaknesses perhaps, is illustrative of the issues we are talking about.
-What is the core alive idea at the heart of his argument about insanity law? Watkins says that we can talk about a
psychological model of the mind, but the idea of the psychological model of the mind is that the mind isn’t just what we
experience but that it has inner workings that we can discover through science. In line with that, you could say that the
psychiatric notion, what’s called psychiatry or clinical psychology, is that mental disorders are a product of defects in the
inner workings of the mind. They aren’t just wrong thoughts or mistakes that someone’s made. They arise out of the inner
workings of the mind malfunctioning in some way. They may not be like a psychosis or a severe intellectual disability.
They could be something normal like post traumatic stress disorder, which is a somewhat normal reaction to traumatic
events. However, in any event, the psychiatric from that point of view, is crucially the idea that you aren’t just talking to
people who have gone astray in the way they are thinking. Instead, you are talking to people who have been caused to go
astray in some psychological way.
Moore is taking a very different approach from that. The main idea to grasp at the heart of what he is saying is that
psychology (Scientific psychology) is a completely different enterprise than psychiatry. Psychology’s main task is to
understand the functioning of the mind. They look to scientifically explain mental processes. As such, he thinks that
psychology is inherently deterministic in a way that’s wrong. He isn’t a supporter of psychology. However, he says
psychiatry’s fundamental task is not to understand the inner workings of the mind. Psychology has a primary task because
it is a medical specialty. Psychiatry’s task is to differentiate between mental illness and mental wellness. Psychiatrist’s
aren’t in the business of tinkering with the inner workings of the mind, except insofar as to come to a conclusion that an
individual’s functioning, their mental and life functioning, is impaired and that, therefore, they’re mentally ill. That’s their
number one task.
-The crucial point he makes (the thing to grasp) is that the kinds of considerations that are stimulated by trying to explain
how the mind works, are fundamentally different from the kinds of considerations that determines whether a person is
mentally impaired. He accepts that once you’ve decided that someone’s mentally impaired you might go on to try to
understand what may be going wrong that causes that to work in some psychological way. However, his point is that it is a
fundamentally different categorically different process to decide to explain how someone’s mind works vs. distinguishing
between mental illness and mental wellness.
-To argue this distinction, he uses a famous example of this being discussed. In the early 1970’s, in a meeting of the
American Psychiatric Association, when there was some protest from gay rights activists outside the building, the AP
decided that psychiatrists were wrong all along in claiming that homosexuality was a mental disorder. Homosexuality itself
was a form of psycho-sexual maladjustment, which was a disorder/illness that needed treatment. They decided that there
was no evidence that there was any dysfunction/impairment that arose of any psychological kind wrapped up in being
homosexual. They accepted that in the society of the time, that there are social impairments in being homosexual
because there is anti-homosexual and homophobic feeling. Thus there were psychological consequences, some of which
weren’t good (such as the stress of being isolated, being treated in a negative way, etc.) However, they came to the
conclusion that there was no inherent basis for that being a disorder. Conservatives who rejected this change argued that
their conclusion wasn’t based on any scientific evidence. They argued that there was much scientific/medical evidence
that suggested that homosexuality was a disorder, and psychiatrists didn’t produce any new evidence. They just politically
chose change it. Though this doesn’t make sense because psychiatrists are already dealing with a more embarrassing
problem that has to do with the fact that they are now admitting that all their years of research was flawed. The
determination about whether homosexuality is a disorder or not isn’t based upon knowing anything about the inner
workings of the mind. It only has to do with whether homosexual people are mentally impaired by being homosexual. You
don’t have to know about the science to know that’s not the right question. There are all sorts of physical, mental, and
neurological abnormalities that we don’t consider disorders.
-Thus, Moore’s point is that psychiatrists have to make a distinction that’s fundamental to their work (though not
fundamental to psychology at all) about mental and social functional impairment, not about the causes of behavior. He
accepts that psychiatrists aren’t making the same determination in terms of ill or well as the law wants them to make when
it decides whether someone is responsible or not responsible, but his argument is that it’s the same kind of decision. In
order to get to this determination, he goes through a number of different arguments, which aren’t that far off from Lipkin.
-He says the law and psychiatry both have a view of the human subject, which is similar. The law, he says, understands
human subjects as practical reasoners. Criminally responsible subjects are people who can practically reason. They can
reason about the ordinary practices of life. That means that we explain their conduct in terms of their reasons for action as
a legal theorist. We don’t explain their conduct psychologically. He says that for practical reasoners, their conduct is
based on practical reasoning, our reasons for actions, etc. We weigh options and make decisions, etc. and the social
sciences seem to use a similar model (this view may even be similar to the rational actor model, though the mind is more embedded in its social context in that view). However, he also argues that psychiatry is the same. What they are aiming
for when they are trying to treat someone is to get someone who can practically reason. They are aiming for a state where
our explanation for their action has less to do with pathology but more in terms of their reasons for action. Thus, the point
about psychiatric treatment is to get people in a state where they match that state that the law interprets human action
through. In this way, psychiatrists have an ideal in that they are trying to achieve autonomous action in much the same
way as the law presumes it.
-His crucial point is that in that activity, that kind of conceptual activity that psychiatrists do in deciding whether someone is
ill or not, is them doing the same kind of thing as the law. They may not be doing it in the same exact way but it is similar
in that they are asking whether someone’s capacities as a practical reasoner are functionally impaired in some way. He
says as long as they give testimony in court about that, not psychological testimony about the inner workings of the mind,
but testimony about functional impairment, that’s what the law wants to hear.
-He illustrates this with an example when he is talking about paranoia. He says that the fact that paranoia points to
psychological machinery that underlies conscious thoughts, is separate from task of asking whether paranoia is a disease
and whether it causes impairment.
-Given this model that psychiatry is doing the same kind of thing as the law in distinguishing wellness from illness just as
the law distinguishes criminal responsibility from non responsibility, he decides to discuss objections to his position. Some
have to do with psychoanalytic thinking, and are not so relevant to us. He is simply trying to show that the psychoanalytic
claims about how the mind works don’t undermine criminal responsibility. However, we will leave those alone. The most
crucial argument he takes on, is the view that everyone is a bit sick (as psychiatrists think). We all have some level of
functional impairment. If the whole point he’s making is that the reason that psychiatry can be consistent with the law is
because the wellness illness distinction is a bit like the responsibility non-responsibility issue, then if we are all a bit ill, we
appear to all be a bit non-responsible. This notion, for him, would threaten the practice of the law. However, he says,
psychiatrists don’t actually believe anything that simple. They might believe that everyone has some psychological
wrinkles, but they constantly make determinations bout whether someone is “really ill”. They constantly make, he says,
determinations that are in some sense, black and white. They make a decision about someone. You’ll see that in looking
at the decision of whether to give someone medication or not. If a seasonal depressive comes to them, the psychiatrist
may medicate them. However, what if someone comes to them depressed as a result of a difficult life experience. A
psychiatrist then has to decide whether to give them antidepressants or not and what kind of medication. Thus, they have
to ask themselves whether the person is clinically depressed, even if it was caused by that event, are they functionally
impaired in that way. Even more pressing, when they recommend someone to be in the hospital, they have to make a
determination about whether this person is sufficiently ill for hospitalization to be appropriate. Thus, their practice requires
them to draw lines, which mean they are in the same business as the law.
-This argument isn’t perfect. Part of his argument is that psychology is dangerous. He doesn’t believe in determinism. He
doesn’t believe that you can explain mental processes through psychological explanations. Thus, part of his argument that
psychiatry can work in the law, has to do with the degree to which it’s not fundamentally psychological. Watkins thinks this
misunderstands what psychiatrists do. He believes this misconstrues the degree to which psychiatrists operate with a
psychological concept being essential to what they’re doing. Psychiatrists don’t want to put themselves in the position of
identifying every kind of functional impairment as they would see it, as being a mental illness. They want to be able to say
that there are individuals who will make certain kinds of choices that they wouldn’t agree with that they may think are self
destructive, but they want to be able to do so from an autonomous point of view. They also want to be able to differentiate
that conceptually in their own minds from people who are mentally ill. Thus, this sharp distinction he draws between
psychiatrists being in the business of first deciding whether someone is ill or well, and then trying to understand why your
ill or well, makes it clear that they do go on to psychological thinking. Actually, when they are mulling through whether a
paranoid schizophrenic is ill or not, they are actually attempting to understand that person’s behavior in terms of whether it
corresponds to something that looks like it’s inner driven or whether it’s reactive to a set of thoughts or circumstances.
Watson doesn’t think you can draw such a sharp distinction. There’s also a legal argument problem with that as well,
which is that juries are particularly compelled by evidence that the psychiatrists understands the inner processes that lead
to the functional impairment. When psychiatrists testify psychologically by talking about neurological damage or
something like that, people find it particularly compelling. People are satisfied that they understand thoughts and
-He has 2 advantages over Moore:
1. He gives a more specific account and concrete account of the nature of practical reasoning.
2. But crucially he gives an account that doesn’t make psychological testimony a problem.
-His argument isn’t about the details of psychology. It is more about philosophy of mind. If the central idea of Moore is that
psychiatry and psychology are two very different disciplines in their purposes. Lipkin talks differently. He agrees with
Moore just because behavior is caused in some way doesn’t mean they’re not autonomous.
-But the crucial idea is his understanding of what makes us autonomous. The central idea here isn’t that we are
autonomous if we can think things through and make choices in a reasonable way. He says the core of what makes us
autonomous is self-critical capacity.
-If I go to a store and see a blue and red shirt, and I go back and forth in my mind between the two and then choose the
blue, that isn’t the hallmark of an autonomous choice. The hallmark of an autonomous choice or the capacity for
autonomy, is if you g