Bull, R., & Carson, D. (Eds.) (1995). Handbook of psychology in legal contexts (1st ed.). Chichester: Wiley.

Chapter 1.3
Law's Premises,
Methods and Values
• David Carson
, - University of Southampton

It cannot, meaningfully, be claimed that the study of law has a longer history
than the study of behaviour. However, the formalised study of law, in
universities and similar institutions, certainly has a much longer history than
the study of psychology. Closely associated with this is the differential role,
significance and appeal of tradition, plus the differential distribution of status,
between the two disciplines and professions. Generally speaking, the law, its
study and practice, is perceived as a more socially prestigious activity. Even
in the allegedly more egalitarian USA, law professors are paid on higher scales
' than their other non-medical colleagues. It is proclaimed to be a success or
advance when some psychologists are appointed to law departments (Melton,
Monahan and Saks, 1987; Losel, 1992). Why should we not seek the
;
appointment of lawyers in psychology departments? Indeed, particularly in
some continental European countries, the prestige and perceived power of
lawyers, practising and academic, is considered to be an obstacle to the
1
development of work in law and psychology. (Unfortunately neither of these
'problems', higher pay and social esteem, are experienced by academic
lawyers in the UK!)
Tradition is important to lawyers. It is observable not just in the continued use
of outdated courtroom clothes and modes of address. Such clothes and
terminology would, surely, lead to rich laughter were not lawyers, aided and
abetted by media representations, so successful in maintaining a hegemony of
ideas and assumptions held by members of the public (Bankowski and
Mungham, 1976). These particular customs may be most dramatic in the UK
but they exist in most jurisdictions. Superficially such traditions might appear
relatively unimportant, indeed endearing. However, the uncritical manner in
which they are justified is significant. For example, it is often asserted that a
formal and dignified atmosphere in a courtroom, with witnesses in awe of the
setting and dramatis personae, is an aid to truth-telling by witnesses. The
Handbook of Psychology in Legal Contexts
Edited by R. Bull and D. Carson. © 1995 John Wiley & Sons Ltd
 INTRODUCTION: INTERDISCIPLINARY AND INTERPROFESSIONAL
30
failure to consider it necessary to question or to test such propositions is very
significant. But much more significant are lawyers' traditional and 'working'
modes of thought. Here, it is submitted, is the source of many of the past,
present and future problems for co-operation and collaboration between
lawyers and psychologists. This chapter will try to draw out a number of the
values, premises and working methods of lawyers that could cause problems
for the inter-disciplinary development of law and psychology.
LAWYERS' SEARCH FOR JUSTICE
The long tradition of scholarship in law has, naturally, led to a substantial body
of legal philosophy wherein some basic questions about the nature, purpose
'' and role of law have been posed. The breadth, and depth, of this work, and its
reflection in legal education which helps to socialise future generations of
lawyers, begins to explain lawyers' relative lack of interest in behavioural
science topics. The detailed content of the different theories and positions,
regarding the nature of law and justice, can be discovered from most student
texts. Here the purpose is to highlight features of lawyers' reasoning. A
common theme is the essence of law and justice.
For many people there are certain 'truths', revealed in different ways. For
'• • example, different countries' constitutions declare certain propositions to be
beyond challenge, inalienable. The Constitution of the USA declares certain
truths to be self-evident. Certain propositions, for example that a constitution
is a manifestation of the will of the people, defy empirical verification.
Doubtless such a test was never envisaged. The appeal of the declaration is to
senses other than reason. Arguably similar are the declarations of basic rights,
such as the European Convention on Human Rights. They gain 'legal'
authority, so as to become enforceable, if and when they are adopted by a
legislature. But they also have an appeal and authority arising from their
reference to apparently universal principles, applicable at all times and in all
countries. Not surprisingly many lawyers are keen to encourage the
articulation of such statements. Sometimes the 'intellectual power' or authority
of the document arises from 'reason'; it is asserted to be self-evident, for
example, that continued use of the world's natural resources, on current scales,
is unsustainable. At other times their power arises from sympathy with the
implicit values or philosophy, which may be religious in character.
If there are 'basic truths' then, the argument runs, they cannot be overridden
by any other laws. Many lawyers share the widespread belief that there are
certain 'natural' or fundamental laws. Even the young Karl Marx, for instance,
argued that:
Laws are not rules that repress freedom any more than the law of gravity is a
law that represses movement... laws are rather positive lights, general norms,
LAW'S PREMISES, METHODS AND VALUES 31
in which freedom has obtained an impersonal, theoretical existence that is
independent of any arbitrary individual. Its law book is a people's bible of
freedom. (McLellan, 1976)
If laws have essential characteristics, then individual rules and laws can be
judged against them. If these features can be discovered then appeal or
constitutional courts may use them to invalidate offending 'laws' and prevent
governments from exceeding their proper jurisdiction.
Others insist that the defining characteristics of a law is the process by which
it was enacted. If it followed the pre-stated procedure then, irrespective of its
contents, it is a valid law. It involves adopting a positivistic theory of
knowledge similar to that called in aid by empiricists. The only laws that exist
are those that have been stated by a legislature or which arise from another
accepted source such as, in a common law system, judges' decisions. It
facilitates the drawing of a distinction between law and politics, between the
study or application of rules and the approval or disapproval of their contents.
Just as some scientists argue when working in areas which have military
applications that they do not involve approval of militaristic values, so working
on or applying any law is not perceived by these lawyers to be a political
activity. Being a lawyer is associated with being a technician, a value-free
activity. Law reform, perhaps more so in the UK than the USA, is perceived
by these lawyers as being an 'after-hours' activity.
Law as a Value-free Activity
This law versus politics dichotomy is an important point for the future of law
and psychology. A psychologist, for example, would regard the adoption of a
new, improved, procedure or test, say for assessing a feature of a client, as a
natural and necessary part of the job. For psychologists, as others, challenging
and improving the content of and way in which the job is performed is an
integral part of the task. However, the practising lawyer must keep using the
law for so long as it is the law and whatever his or her opinion of it may be.
There may be a consensus that the law is inappropriate, outdated or bad, but
the lawyer, as technician, must keep using it, working to it. Of course if the
lawyer has a new tactic for questioning witnesses, drafting contracts, avoiding
or minimising a client's tax liability, then he or she must be expected to use it.
But the law, itself, is seen and treated as a 'given'. Psychology is not given in
any similar sense, however well established certain propositions may be.
Lawyers, for example, might agree that the examination of child witnesses in
open court can traumatise them, is inefficient in generating information about
and provides a poor guide as to their credibility (Spencer and Flin, 1993;
Graffam Walker, 1994). But they have to operate within that system, until it is
changed. If they are representing an alleged child abuser then they must be
expected to take advantage of the opportunities that the system offers for
 INTRODUCTION: INTERDISCIPLINARY AND INTERPROFESSIONAL
undermining the accusing child's credibility. They will utilise their belief in
the law as a neutral 'technology', will argue that they are only doing their job
which, in the context of the system, is non-political. If it is in their client's
interests to have separate trials, then they must be expected; indeed, in the
terms of the system they are operating, they should be praised when they
achieve this, even if it means that one jury fails to get a full picture of the case
against the defendant.
Note the extent to which law involves a culture of criticism. Trials, civil or
criminal, usually only involve two sides and two sets of lawyers. A base-rate
probability of 50 per cent failure in trials has to be managed by the lawyers
themselves and rationalised to their clients. Appeals against judges' decisions
are not rare events but rather are structured into the legal system. Is there any
other occupation which so regularly and systematically encourages criticism
via appeals? Whilst an appeal court's criticisms may be couched in polite and
circumspect language it is performed in public and involves disagreeing with
at least one judge or a trial lawyer. Thus lawyers may reasonably feel, and
argue, that the legal system is open and accountable in a way that few other
occupations are. The argument is not that they become blase about criticism
but that further criticism may be considered inappropriate or misguided.
Challenging other lawyers, fighting with words and arguments, is part of the
art and the skills of being a lawyer (Evans, 1983). Further, not taking those
challenges and criticisms to heart, not letting what is said in court affect
personal feelings and relationships is also a prized quality. It is professional
for lawyers to challenge each other vigorously and then, just as if a switch had
been pressed, once the trial is decided or adjourned, to be open and friendly to
professional colleagues. To prevent this antagonism, challenge and criticism
from undermining self-esteem and self-justification, lawyers need to be able
to rationalise their work. Such beliefs as the duty upon lawyers (indeed the
requirement of justice), to do their very best for their client, even if they believe
their client to be guilty of a heinous crime (but do not actually know him or
her to be guilty) need to be firmly believed in if the defence lawyer is not to
feel guilty for being successful in a criminal defence.
Thus, it is submitted, lawyers should be expected to be, at the very least, wary
or biased against reform proposals which threaten to undermine their
self-justifications. Lawyers, like everyone else, need to be able to rationalise
or justify their behaviour. It should not be surprising that they are antagonistic
to other disciplines which criticise them even when they are operating existing
law. Such criticisms are liable to be considered misconceived or misinformed.
A great deal is at stake for lawyers. For example, an inter-disciplinary
committee drew attention to 'the wide-ranging challenge to traditional notions
of evidence posed by the advance in psychology' but, nevertheless, went on
to make recommendations which it felt would not be too extreme for practising
lawyers (Oddie, 1991).
JLiaa.it.....
LAW'S PREMISES, METHODS AND VALUES 33
Related to this, it is submitted, is the tendency for lawyers not to be satisfied
by criticism of a law, practice or procedure. Criticism of an existing provision
is insufficient; they like to see alternatives posed and assessed. So it is not
enough to criticise current law and practice, say on the questioning of child
witnesses. An alternative must be suggested so that it can be compared to see
if it is preferable. Of course a lot of value judgements are involved in
determining what constitutes 'better' and these issues are frequently left
unstated. Lawyers' 'research' papers, on law reform topics, often involve the
outline of an alternative system with a suggestion that it would be preferable.
Editors and referees of law journals rarely require that the value judgement
issues are made explicit or that criticisms or assertions are empirically verified.
Lawyers, particularly in the UK, are able to promote law reform with
remarkable ease. The Law Commission for England and Wales is chaired by
a senior judge, and has practising and academic lawyers as members. There
appears to be no perceived need for, or value in having, a commissioner with
a background in the behavioural sciences or skilled in assessing research
methodology. Papers, authored jointly by a psychologist and a lawyer and
conforming to the methods and expectations of both audiences, might be more
successful in impressing lawyers and politicians into making changes.
Law in Practice
One rebellion against the positivistic emphasis upon the 'law in books' is the
realist tradition. Does it matter what the law in the books is, if it is not applied
in practice? The 'real' law, realists would argue, concerns what judges and
other law enforcement agencies actually do. Note that, in this approach, the
contribution of other legal decision-makers is recognised. If the police operate
a 10 per cent margin on speeding offences then the maximum on this road is
not 50 but 55 miles per hour. Law students should be taught not what the books
say ought to happen but what the research and experience indicates actually
happens. Fear of having your name printed in a newspaper may be a more
effective disincentive to the commission of crime than standard punishments.
The judge's mood may be a more reliable and significant factor in predicting
his or her decisions than the precedent decisions. Legal skills concern the
ability to predict the decisions of judges and others.
The realist emphasis on prediction supports an interest in the social and
behavioural sciences as they aid the description and analysis of law officials'
behaviour. This, it may be argued, has been a major influence upon the
development of law and psychology in North America (Monahan and Walker,
1994). It may also in part explain the relative lack of development of law and
psychology in the UK as the realist approach has much stronger associations
with the USA than the UK. It may also involve a reflection of the different
arrangements for legal education. In the UK most new lawyers take a
three-year law degree as soon as they have left school, followed by
 INTRODUCTION: INTERDISCIPLINARY AND INTERPROFESSIONAL
professional training. Thus they can become practising lawyers without having
studied any social or behavioural sciences other than that studied at school up
to the age of 18. In the USA law is a postgraduate subject so that law students
will already have studied other subjects at university as part of their Bachelor's
degree. These will often include psychology.
While law schools are still dominated by 'black letter' lawyers, whose primary
interest is in the collation, analysis and restatement of verbally formulated
rules, virtually all will have some staff interested in socio-legal studies. Indeed
the character of a law school can, substantially, be determined by the
proportion swearing allegiance to a socio-legal approach to research and/or
teaching. Many lawyers would characterise socio-legal studies as including an
interest in the psychological implications of law (e.g. Lloyd-Bostock, 1981).
It would be seen as a sub-set of the wider concept which would include politics
(e.g. Podmore, 1977), history, anthropology (e.g. Snyder, 1981), economics
(e.g. Veljanovski, 1980), indeed linguistics (e.g. Goodrich, 1984), geography
(e.g. Economides, Blacksell and Watkins, 1986) and psychiatry (e.g. Fennell,
1986) as well as the sociology of law (e.g. Cotterrell, 1986). However, the vast
majority of those lawyers interested in socio-legal studies, at least in the UK,
are interested in the sociological and political rather than the psychological
implications of law. The interest is in social theories and explanations rather
than individualistic.
The interpretativist epistemologies implicit in realist and socio-legal
approaches to law is important. The law is not perceived as politically neutral
or independent of observation and choice. All actors, including judges, are
making choices although they may be circumscribed. Interpreting and
applying the law is neither a mechanical nor a neutral activity. Factual
situations are ambiguous and have to be constructed and interpreted.
Note, however, that law schools and legal education remains dominated by
cognitive studies of information. Research findings, say on eye-witness
testimony, may find their way into 'liberal' texts on evidence. But, despite the
realist and socio-legal movements, the emphasis remains upon rule, rather than
fact, finding. The bulk of a practising lawyer's time and effort will be spent in
determining the facts rather than the law; but this is still not reflected in legal
education or law books (for an exception, see Anderson and Twining, 1991).
Emphasis upon practical skills, other than appeal court argument, is a relatively
novel development in legal education, especially in the UK (Macfarlane,
1992). Why are lawyers not being taught how to interview witnesses and
clients in a manner which will produce plenty of reliable information for them?
In straightforward terms of gaining instrumental skills lawyers could learn
much from psychologists, even if the limits of current knowledge, and need
for further research, kept being emphasised.
The socio-legal movement is related to interests in criminology and concern
LAW'S PREMISES, METHODS AND VALUES 35
over criminal justice issues. In this context it is also noteworthy that
psychologists have been prominent in the current reaction against the 'nothing
works' school of thought about crime and recidivism (e.g. Blackburn, 1993).
This, particularly given lawyers' interest in being able to recommend positive
alternatives to custodial sentences, for individual clients, should provide
another means whereby psychologists' contributions are demonstrated to be
of instrumental value to lawyers (Berry, 1993).
Then, flowing from but involving a recognition of the perceived inadequacies
of the realist and socio-legal approaches (Kelman, 1987), recent decades have
demonstrated a growing interest in critical legal studies which:
draws heavily on the radical political culture of the period since the 1960s. It
asserts the inescapability of commitment and rejects the aspiration of the
preceding intellectual climate's search for value neutrality. ... Critical legal
studies seeks to provide an environment in which radical and committed
scholarship can thrive in diversity with no aspiration to lay down a 'correct'
theory or method. (Fitzpatrick and Hunt, 1987, p. 1)
This is a full-frontal assault upon the belief that law and politics, and all other
normative systems, are separate entities which can and should be kept separate.
Obviously it causes problems for many more-traditional lawyers. It also
involves a fundamental attack on the perceived hierarchical and indoctrinating
nature of legal education (e.g. Kennedy, 1982). Critical approaches to legal
education would encourage students to observe the ideological nature of law
and how it is just one system of ought statements among many others, although
it has achieved much greater power substantially by obfuscating the nature of
the interests being protected.
Because it stresses the absence of value neutrality and the necessarily political
nature of the manner in which social and other problems that may be the subject
of research are perceived, there would appear to be little opportunity for
collaboration between psychologists and lawyers if a critical law framework
was involved. Critical legal theory can be very negative and nihilistic; there is
no such thing as 'truth' so why search for it? But, it is submitted, this is not
necessarily the case. Critical theory professes to be very democratic, seeking
to involve people in real decision-making, and it requires that the value
assumptions, in so far as people are aware of them, are explicit, are 'up front'
(see Kairys, 1982). Are these not values and objectives with which many others
can identify? Working with, say, a prisoner or patient, many of the value
assumptions could be made explicit and the client involved more in the choices
available, recognising of course both that the service provider may not be able
to allow certain choices, for example releasing a prisoner, and that many
choices, and the ability to choose, will be artificial or false in that there is rarely
full and complete freedom of choice. Through its denial of 'objective truths'
critical law theory could also prove valuable in reminding both psychologists
36 INTRODUCTION: INTERDISCIPLINARY AND INTERPROFESSIONAL
and lawyers that research is immanent, is always developing. In these senses
critical legal theory can prove a valuable corrective although it must be
recognised that most, if not all, critical law scholars would condemn this
attempt to abstract a few key ideas into the beginnings of a method.
REASONABLE REASONING
This, necessarily selective and all too superficial, review of the range of ideas
or schools of thought within jurisprudence or legal philosophy should have
indicated the breadth and diversity of views and approaches that exist. It would
be very misguided to think of lawyers as being less diverse in their assumptions
and methods than are other disciplines. The discussion also, hopefully,
indicated a number of ways in which particular positions, within this diversity,
could facilitate or hinder developments with psychology. To this should be
added a brief description of some characteristics of lawyers' practical
reasoning. Aubert (1963), for example, has outlined a number of characteristics
which has led others (Campbell, 1974) to argue that effective collaboration is
unlikely. However, it will be argued, these characteristics arise out of the
courtroom focus of some lawyers which is, substantially, just a stereotypical
image of lawyers' work.
Lawyers, for example, tend to dichotomise. Both concepts and facts (to indulge
in a dichotomy) are pressed into categories, particularly alternatives. It is one
thing, although dangerous in many senses, for people to be pressed into
categories such as 'mentally disordered' or not, criminal damage or not, but it
extends right through to reasonable or unreasonable behaviour. Lawyers, and
the law, have great difficulty with relative concepts. However, this mirrors the
reasoning of many other groups of people and is perfectly understandable
given the legal task of fitting facts into legal categories. Lawyers, it is argued,
focus on past events, while 'proper' scientists are trying to make accurate
predictions about the future. This is true in that lawyers have to find, from past
events, facts which will permit a particular conclusion to their case. They have
to do this for legal ends. But it is not, really, different from other disciplines.
Psychologists also examine the past, for example a client's past history of
violence, in order to make decisions for the future.
Lawyers concentrate upon the particular case, their client's, while others, for
example psychologists researching the dangerousness of mentally disordered
offenders, are trying to make generalised comments. Again the argument is
not really valid. Yes, a lawyer has to try and get a particular outcome for a
particular client. Similarly a psychologist will search the literature on the topic
or about similar cases in order to help a particular client. The distinctions that
ought to be being made are between lawyers generally and those in practice,
who must work with the system, just as a distinction would be drawn between
the research psychologist's motivation to make general comments about, for
LAW'S PREMISES, METHODS AND VALUES 37
example, the recoverability of forgotten memories and the practitioner
psychologist who is concerned with helping an individual client.
Working in courts is only one of many actual, and potential, roles for lawyers.
When they appear in court they must, naturally enough, manipulate (which
need not be interpreted as a critical term) the system. When operating in that
mode such characteristic forms of reasoning must be expected. But it does not
follow that such reasoning is utilised in other contexts. Lawyers, not just
critical theory lawyers, can recognise the relativity of many concepts. The
important variable is the closeness of the individual lawyer to practical
applications of the law.
Other characteristics of lawyers' reasoning may be more important in practice.
For example, there is the emphasis upon persuasion rather than deductive or
inductive logic (Hart, 1963). The oral tradition of the law has been significant.
That a proposition sounds reasonable, with or without the suggestive power
of being labelled 'reasonable', is regularly accepted as a justification for a
decision. It does not, for example, sound reasonable to most lawyers that the
Blue Taxi Company should pay compensation to the victim of an accident just
because the victim is certain that it was a taxi, but cannot recall whether it was
blue or green, and the Blue Taxi Company owns 80 per cent of the taxis in that
remote town to the Green Taxi Firm's 20 per cent. However, add one more
piece of particularistic evidence, suggestive that it was a blue taxi, and now
most lawyers will find the conclusion reasonable, on the available evidence.
The tendency of lawyers to reify goes beyond the use of colourful language.
Many lawyers treat concepts as if they actually exist. For example the 'rule of
law' is a neat phrase for articulating a system whereby pre-stated rules
determine officials', including judges', behaviour. It is seen as preferable to a
system where, for example, there is dependence upon the goodwill and
discretion of someone to make decisions which need not follow any rule or
other pattern. But it is just an idea, a preference. However, as with other
examples, many lawyers can be heard treating the expression as if it actually
referred to something concrete. 'Justice' is an ideal or aspiration and yet we
are used to hearing and seeing it referred to as a distinct entity, indeed
sometimes as having a corporeal form and gender. This kind of reification is
dangerous because it closes off debate about the concept. What is the essence
of justice? Why should it be blind? Does it include a requirement of equal
opportunity, the equal distribution of or access to resources, or does it only
refer to procedural requirements? The meaning of such concepts and ideas is
not beyond debate but their articulation in a reified manner puts them beyond
debate. This may be done deliberately or otherwise.
And lawyers seem to use 'time' in a distinctive manner. Progress appears to
be treated as if it was simply linear. Of course it is, in the sense that days, weeks
and months pass. But other disciplines, and practitioners with clients, are more
 38
INTRODUCTION: INTERDISCIPLINARY AND INTERPROFESSIONAL
likely to emphasise the significance rather than the mere passage of time. The
expression 'day in court' is very significant to lawyers. Cases, witnesses,
clients are prepared for the 'day in court' even though the vast majority of civil
cases are settled before any trial and the vast majority of prosecutions lead to
admission of guilt so that a full trial is unnecessary. The day in court becomes
a focal point, not just for planning purposes. The expectation is that the court
will be able to deal with all the conflicting issues and establish a clear sense
of direction; problems and controversy in, solution out. But 'real' life is not
entirely like that. In many jurisdictions judges have, effectively, had sentencing
powers (a time component) taken away from them. They may pronounce a
five-year sentence. Doubtless that has an immediate effect (not just upon the
media) but many, particularly those with a previous criminal history, will
quickly calculate, for example, earliest dates upon which early release might
be sought. The release of prisoners and patients from conditions of detention
depends, although there are usually formal maximum terms, largely upon the
individual's preparedness and motivation, as well as the availability of
resources for community supervision. The simple linear approach to time
leaves out the significance of opportunities. The finding that children's
conception of time is different from that of adults (Goldstein, Freud and Solnit,
1973) has generally been learnt. Trials are expedited, although arguably still
not enough. But are courts in a position to seize, or ensure that others seize,
the opportunities that flow into, and possibly out of, every child's life? The
nature of a problem, particularly from a child's perspective, can change
dramatically over a comparatively short period of time.
CONCLUSION
As many have remarked, it is strange that two disciplines and professions, with
such common interests, have not collaborated more productively. This chapter
has tried to suggest that some of the reasons lie in their different approaches
and assumptions. Can co-operation be expected whenever there are major
differences between lawyers, when there is no orthodoxy about the nature of
law? Yes, it is submitted, if a number of things are always remembered. Among
these are the observation that lawyers serve at least two goals, making the
present system 'work' for their clients (even if those are just law students) and
the much broader notion of fair and efficient law (or justice). Law, like
psychology, is always developing, moving. This comment does not just refer
to changes in the content of the law but ideas about law generally.
Collaboration focused upon change, it is submitted, would prove an important
way forward.
i
LAW'S PREMISES, METHODS AND VALUES 39
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Spencer, J.R. and Flin, R. (1993). The Evidence of Children: The Law and the
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Part 2

Individualism:
Psychology's Support
for Individuals