Abstract
American jurisprudence in the twentieth century has felt the impact of many new approaches to the study of legal institutions and behavior. The positivistic “revolution” in American jurisprudence has been a motley brew, consisting of such varied ingredients as the legal positivism of Justice Holmes, the sociological jurisprudence of Dean Pound, and the legal realism of Judge Frank — together with all of the varied effects of pragmatism, functionalism, instrumentalism, experimentalism, and the use of materials from the fields of economics, anthropology, sociology, psychology, and the social sciences generally.
Lawyers and judges must constantly act as psychologists or psychiatrists. The lawyer in his office often serves as an amateur psychiatrist to his clients. Our legal vocabulary shows that courts cope daily with such psychological matters, as, for instance, “motive,” “intention,” “malice,” “mental cruelty,” “delusions” and “undue influence.”
Jerome Frank
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References
“Judicial Fact-Finding and Psychology,” 14 Ohio St. L. J. 183 (1935).
Jerome Frank “Judicial Fact-Finding and Psychology,” 14 Ohio St. L. J. 183 (1935).
Law and the Modern Mind 13. Most writers on law would not accept the last statement as proved truth without more evidence and less reliance on psychological dogma. Cf. the following statement by a non-legal writer: “Jerome Frank, in Law and the Modern Mind (Tudor, 1936), has argued that those who seek to repudiate all authorities are often unable to do so. There is a sense of security which an unquestioning dependence upon authority brings with it, and a heightening of certain satisfactions. So in the absence of trustworthy human authorities, fictitious authorities are invented, taking the form of abstract principles, half-anthropomorphically conceived. By this means Frank endeavors to explain the ‘basic legal myth’ of a system of law that exists beyond the law of the statutes, which legislators are expected to ‘discover,’ rather than ‘create.’ He might have extended his theory to account for all conceptions of objective values. Although Frank’s theory is of a speculative nature that must inevitably be controversial, it is of great interest, and well supported by knowledge of legal practice and legal theory.” Charles L. Stevenson, Ethics and Language (New Haven: Yale Univ. Press, 1944), p. 92 n. 8.
Cf.: “The psychological function of law for the child is well analyzed in Jerome Frank, Law and the Modern Mind…, pp. 13–21. Frank deviates from the above analysis in that he concludes that the law is a substitute for the father, whereas it is maintained here that law becomes not a symbolic person but the prohibitions of a symbolic person. As the child progresses through school grades, he becomes acquainted with the Constitution and its framers. Here, the part of the founding fathers is clear — they made the law. In their position as defenders of the Constitution, the Supreme Court justices have received analagous roles, roles made more complete by their age qualifications and their specific sphere of the highest law of the land….” Sebastian de Grazia, The Political Community: A Study of Anomie (Chicago: Univ. of Chicago Press, 1948), pp. 203–04 n. 15.
The major books by Jean Piaget that Frank uses the most frequently are: The Language and Thoughts of the Child (N.Y.: Harcourt, Brace, 1926) Judgment and Reasoning in the Child (N.Y.: Harcourt, Brace, 1928); The Child’s Conception of Causality (N.Y.: Harcourt, Brace, 1930). Other books in the field of psychology that Frank refers to include Bernard Hart’s Psychopathology: Its Development and Its Place in Medicine (N.Y.: Macmillan, 1927); and The Psychology of Insanity (N.Y.: Macmillan, 1931); Eugenio Rignano’s The Psychology of Reasoning (N.Y.: Harcourt, Brace, 1923); and William L. Northridge, Modern Theories of the Unconscious (London: K. Paul, Trench, and Trubner, 1924). “…The ‘child’ as described by Piaget, is not a constant. Nor are all children identical; there are developmental periods in the growth of children; for convenience, I have not here differentiated the periods.” Frank, Courts on Trial; Myth and Reality in American Justice (Princeton: Princeton Univ. Press, 1949), p. 72 n. 15. Even before Piaget and Freud, the courts were aware of the effects of “unconscious” factors on witnesses. See Frank’s opinion in United States ex rel. Accardi v. Shaughnessy, 219 F. 2d 77, 81 (2nd Cir. 1955).
Id. at 18, 19. Frank does not regard this explanation of the legal myth of rule certainty as anything other than a partial explanation. “This book, then, from now on, reads as if unconscious ‘father-substitution’ were the explanation of the oddities it discusses. But, we repeat, we are consciously using a partial explanation. It is employed to further the chief aim of this book; the development of that ‘realistic’ movement in law which seeks to overcome an astonishingly prevalent blindness to legal realities.” Id. at 21, note. Of course, what Frank regards as legal “realities” are for other writers in the field of American legal philosophy, sheer nonsense. For Morris Cohen, or even Karl Llewellyn, this psychological explanation, humble as it may sound, borders on quackery.
Harold G. Reaschlein, Jurisprudence — Its American Prophets, 213 (1951).
Frank, Law and the Modern Mind 41.
Id. at 75. Cf.: “Apparently Frank regards any jurist as ‘classical’ who does not accept the gospel according to St. Jerome.” George W. Paton, A Text-Book of Jurisprudence 19 n. 50 (rev, ed. 1951). Paton under estimates Frank’s use of sophisticated swear-words.
Law and the Modern Mind 138. Frank regards Judge Learned Hand as the best living example of this type of jurist. What Frank means by the statement “…and to act accordingly” is still unclear to me. The psychoanalyst may free a patient from his illusions, but that in inself is not a prescription for future action. In an age of anxiety, self-awareness does not make anxiety vanish, or at least the preconditions of that anxiety. And so it is with the judge. Granted, he understands himself, where does he go from there?
Id. at 252. Cf., “The Role of the Fatherhood Symbolism” in Joseph Rosenfarb, Freedom and the Administrative State (N.Y.: Harper and Brothers, 1948), pp. 209–11.
“The Importance of Modern Psychiatry to the Lawyer,” 14 Ohio St. L.J. 136, 141 (1953). One might be tempted to cry, Hallelujah! But where does this leave the innocent layman? Also, see his essay, “A Psychological Theory of Law,” chap. XXXVI in Interpretations of Modern Legal Philosophies 767–87 (Sayre ed. 1947); cf., David Riesman, “Tensions, Optimism, and the Social Scientist,” 13 Psychiatry 518 (1950) and his article, “Some Observations on Law and Psychology,” 19 U. Chi. L. Rev. 30 (1951); A. J. Levin, “Maine, McLennan, and Freud,” 11 Psychiatry 177 1948); Hyman Smollar, “A Lawyer Looks at Psychiatry and the Law,” editorial note in 17 Psychiatry 391 (1954); two articles by Jerome Hall, “Psychiatry and the Law,” 38 Iowa L. Rev. 687 (1953), “Psychiatry and Criminal Responsibility,” 67 Yale L.J. 761 (1957); the George H. Dession memorial issue of the Buffalo Law Review (vol. 5, no. 1, fall 1955); and Percival Bailey, “The Great Psychiatric Revolution,” 113 Amer. J. of Psychatry 387 (1956).
“A Realistic Jurisprudence — The Next Step,” 30 Col. L. Rev. 431, 443 (1930). Llewellyn goes on to say that we should study judges’ and officials’ behavior as judges and as officials, not as children, or as immature adults. Official behavior as such is the core of his psychological technique. While Llewellyn was quite scornful of Frank’s use of the notion of father-authority in Law and the Modern Mind, he recognized that much of the book was independent of that idea. See Frank, Courts on Trial 75–78, 159–61; “ ‘Short of Sickness and Death’: A Study of Moral Responsibility in Legal Criticism,” 26 N.Y.U.L. Rev. 545, 609–10 (1951).
There are many good examples of co-operation between medical and psychiatric personnel and lawyers that have resulted in legal reforms, new state laws, or proposed model state laws for the future, e.g., State of Michigan, Report of the Governor’s Commission on the Deviated Sex Offender (Detroit, Michigan, 1951); also, the report by Dean Roscoe L. Barrow of the University of Cincinnati College of Law and Dr. Howard D. Fabing, representing a joint committee of lawyers, psychiatrists and neurologists, on the need for modernization and improvement of state laws concerning the treatment of epileptics: Epilepsy and the Law (N.Y.: Paul B. Hoeber, Inc., 1956). Another area of fruitful exploration between the lawyer and the psychiatrist, as well as the social worker, has been divorce law reform. It seems to me that these interdisciplinary efforts have been far more valuable than the proposed psychoanalysis of individual judicial behavior. The work of the Gluecks, Jerome Hall, Henry Davidson, and the late George H. Dession stand out as examples of what can be done when the artificial boundary-lines of specialized disciplines are transcended.
Cf.: “Shall we not do more by a less rigidly behaviorist psychological method, tempered by the consideration that we need to take account of the restraints upon non-rational individual judicial behavior and that judges are not likely to do better than we expect them to do. There was a psychological efficacy in the nineteenth-century ideal.” Pound, “Fifty Years of Jurisprudence,” (IV — Realist Schools),• 51 Harv. L. Rev. 777, 790 (1938), Pound says that the legal realists do good work, but realism is not the whole story of what law is and how it functions.
This is not to say that Frank as amateur has no right to employ psychological tools of analysis, but that the findings of amateur and professional alike should be clearly distinguished from each other.
Manfred S. Guttmacher and Henry Weihofen, Psychiatry and the Law (N.Y.: W. W. Norton, 1952), p. 11. This is an extremely useful text-book on the various uses of psychiatry in trials, hearings, and legal procedure in general, along with that of Paul H. Hoch and Joseph Zubin (eds.), Psychiatry and the Law (N.Y.: Grune & Stratton, Inc., 1955).
Pound, supra p. 61 at 789. The fact that overt legal behavior is more prone to study does not necessarily mean that the “hidden” elements in the judicial process should be ignored. The fact that we are unable at this stage of legal knowledge to study the unconscious factors of legal behavior with any degree of accuracy or precision does not mean that these factors are non-existent, but it does place a heavy responsibility on the observer, a responsibility, in this author’s view, that some of the legal realists have not clearly understood. See Felix Frankfurter, “Mr. Justice Holmes and the Constitution,” 41 Harv. L. Rev. 121, 132–33 ns. 33–34 (1927).
Conscience and Society; A Study of the Psychological Prerequisites of Law and Order (N.Y.: Emerson Books, 1945), p. 165.
Thurman W. Arnold, Book Review of Law and the Modern Mind, “Law and Men,” 7 Sat. Rev. of Lit. 644 (March 7, 1931). Arnold also says that the book is intelligible to the layman, a view that I cannot accept.
Cf.: Mr. Frank, however, has no clear idea as to what he is thus committing himself to; and elsewhere, especially in the footnotes, he explicitly recognizes the existence and need of some rules and certainty in the law. This admission, however, still leaves his fundamental thesis rather vague and inconsequential, and his polemics pointless, if not unfair. For obviously, if the law contains both rules and discretion, both certainty and uncertainty, the significant issue is precisely the one that Dean Pound faces and that Mr. Frank dodges, viz., where to draw the line between legal rule and judicial discretion.
…There can be no doubt that the desire for complete certainty — the craving for absolute truth — is a trait of all creatures born of woman… Morris R. Cohen, Law and the Social Order (N.Y.: Harcourt, Brace and Co., 1933), pp. 359, 360.
“…His complacent assumption that psychoanalytic concepts like father-substitute are ‘the best instruments now available for the study of human nature’ begs more than he or any one else has as yet proved. Psychoanalysis has doubtless led to some therapeutic results. But so have Christian Science and other faith-cures, and a logician must contend that therapeutic efficiency does not prove the truth of all the different faiths that produce it. Psychoanalysis will become scientific only when, like biology, it becomes really critical of its own evidence, instead of resenting — as all sectarian faiths do — the demand for such evidence…. It may perhaps be unfair to judge Mr. Frank’s book by a standard of logical rigour not generally applied to books written for the general public. But as Mr. Frank is engaged in a serious and important task, it must in the interest of the latter be pointed out that the myth of a completely certain legal system, apart from the work of judges — a myth that has its roots in legal experience from time immemorial — cannot be overthrown by an admitted fiction from the mushroom science of psychoanalysis….” Id. at 360–61. One should, however, take note of Frank’s fourteen other possible explanations of the basic legal myth in app. I of Law and the Modern Mind 263 (1930), as well as his later criticism of Freud in Save America First 198–201 (1938) and Fate and Freedom 64–69, 351–52 (1945) and his extremely critical book review of F. R. Bienenfeld, Rediscovery of Justice, 38 Calif. L. Rev. 351 (1950).
Nor is the psychological neo-realism of the moment wholly emancipated from a priori dogmatism with which it reproaches older types of juristic thought….“ Pound, ”The Call For a Realist Jurisprudence, 44 Harv. L. Rev. 697, 700, 706 (1931).
With his usual cutting philosophical tang. Professor Fuller writes: “The realist movement has done an immense service to American legal science in inculcating in it a healthy fear of such very real demons as Reified Abstractions, Omnibus Concepts, and Metaphors Masquerading as Facts.” Fuller, “American Legal Realism,” 82 U. Pa. L. Rev. 429, 443 (1934). See his The Law in Quest of Itself (Chicago: The Foundation Press, 1940).
An Essay on the Foundations of Legal Criticism (N.Y.: Falcon Press, 1933).
“It is one of the serious dangers of the functional approach that those who invoke it for the purpose of description may without further thought utilize it as a criterion of value. It is important for the jurist to remember that when he has described the human significance of a rule he has not thereby justified its existence.” F. Cohen, “The Problem of a Functional Jurisprudence,” 1 Mod. L. Rev. 5, 24–25, (1937). Also, see his excellent article, “Transcendental Nonsense and the Functional Approach,” 35 Col. L. Rev. 809 (1935), repr. in 2 Etc.: A Rev. of Gen. Semantics 82 (winter 1944–45).
See the essay by Harold D. Lasswell, “Impact of Psychoanalytic Thinking on the Social Sciences,” in Leonard D. White (ed.), The State of the Social Sciences (Chicago: Univ. of Chicago Press, 1956), pp. 84–115; Albert Ellis, “An Introduction to the Principles of Scientific Psychoanalysis,” 41 Genetic Psychology Monographs, 149–205 (1950); Bailey, supra p. 60, note 1.
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Paul, J. (1959). Psychology as the New Weapon of Attack. In: The Legal Realism of Jerome N. Frank. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9493-8_4
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