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Last updated
2005.07.17.

Prof. Viktoras Justickis, Mykolas Romeris University
"Does the Law use even a small proportion of what Legal Psychology has to offer?"

Although it can be argued that all legal problems in all branches of the law are psychology-dependent only Criminal law actively uses psychology Modern Legal Psychology still remains mainly a Psychology of Criminal law. It is only recently that psychology has been taken up in some areas of Civil law. This narrow focus of psychological impact on the consideration of crimes and criminals leaves vast areas of the law untouched by psychology and psychologists. Yet Criminal law is not even regarded by many as a leading branch of the Law. It cannot be seen as more important or more used than such aspects as constitutional, international, administrative, ecological, business, labour or any other laws.

National law systems around the world seem to be very different in the degree to which they use psychology. Some use it only exceptionally, yet for others psychological input is much more commonplace. For example, in Lithuania psychological examination is not used to assess a defendant’s ability to understand the police caution, to cooperate with a lawyer or to follow trial proceedings, nor is psychological expertise not used to assess the impact of emotional distress, or a person’s competence to handle his/her finances, etc. All this is routine in USA or Germany.

Yet it is interesting to note that all national legal systems seem to embrace psychology in a similar sequence, almost as if there were a natural psychological development to the incorporation of psychological concepts and methods. It would seem the starting point is the consideration of children as witnesses in criminal proceedings. This is then expanded to consider the capabilities of various sub-groups of adults to cope with the court processes. These capacities are further broadened to evaluate the impact of various emotional and other mental states on the fitness to plead or to offer evidence.

Beyond these examinations of individuals in the context of crimes slow steps are taken to consider similar issues in areas of civil law, most notably family court cases. In rare situations the potential contribution of psychology is explored in relation to broader matters such as legal codification, classification, and interpretation of human actions.

Two sets of factors seem to be of special importance in determining the progress towards using psychology in a national legal system. The first is how the differences between the epistemologies of law and psychology are resolved. The law is normative and psychology is a science. The law operates with dichotomous certainties and psychology with arrays of probabilities. So, that even though adversarial judicial systems search for truth in different ways from magisterial ones, they both seek a definitive truth that contrasts with the unfolding dialectic that is the essence of scientific psychology.

The second set of factors that impact on the uptake of psychology by the law is external to both psychology and law. They are the speed of influence of current global social changes within any given society. As we have seen with the demise of totalitarian systems around the world, the speed of democratization, and improvement of human rights brings with it a hunger for the systematic, scientific resolution of many legal problems that psychologists are well placed to assuage. I would even go so far as to say that positive developments in a modern society require and generate an increasing “psychologization” of its Law.

To further this productive process it would be valuable to map out the opportunities for psychological contributions to legal systems far beyond eye witness testimony and the fitness of defendants to plead, into realms beyond courts of criminal justice. Such a map is both geographical and conceptual. It would, for example, be of enormous value to have a clear account of exactly how psychological expertise is used in the legal systems of different countries. This would reveal what is common to many countries and where there are particular, rare nuggets of activity from which others can learn. From this it may be possible to develop an overview that might have some analogy to the famous Mendeleyev periodic table that has proved so valuable in Chemistry. This could present the main areas of legislation, implementation and application (in rows) in every branch of the Law (columns). Each cell of such a table could further indicate the degree to which psychology is used for those matters in that area of jurisprudence.

Such a “Periodic table for Legal Psychology” would expose extensive virgin territory of the law into which psychology could penetrate and thus give impetus and focus to research for this important branch of psychology.