The philosophy of the gift and the psychology of advocacy: Critical reflections on forensic mental health intervention

International Journal for the Semiotics of Law

Volumn 13, Issue 2, 2000, Pages 215-242

  Williams, Christopher R ^a   Arrigo, Bruce A ^a  

^a CSPP Fresno   (United States)

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[No Author keywords available]

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EID: 0008813815     PISSN: 09528059     EISSN: 15728722     Source Type: Journal    
DOI: 10.1023/A:1008992415163     Document Type: Review

References (120)

1. We are uniquely interested in the semiotical meaning of "the gift" of advocacy with speculative reference to sundry mental health law contexts. For some useful, though limited, analysis regarding these matters see, Bruce Arrigo, Madness, Language, and Law (New York: Harrow Heston, 1993)
2. Bruce Arrigo, The Contours of Psychiatric Justice: A Postmodern Critique of Mental Illness, Criminal Insanity, and the Law (New York/London: Garland, 1996).
3. Consider, for example, the manner in which "outreach" workers/advocates broker for services, benefitting the homeless mentally ill. Assisting this constituency through the procurement of literacy training, entitlement subsidies, parenting classes, psychological counseling, etc., become assistance-based or giving initiatives availed to those in need. For a sociological practice analysis of how this advocacy process unfolds see, B. Arrigo, "Rooms for the Misbegotten: Social Design and Social Deviance," Journal of Sociology and Social Welfare 21/4 (1994), 95-113.
4. See, e.g., Umberto Eco, A Theory of Semiotics (Bloomington: Indiana University Press, 1976)
5. Jonathan Culler, The Pursuit of Signs: Semiotics, Literature, and Deconstruction (Ithaca, New York: Cornell University Press, 1981)
6. Algirdas Greimas, The Social Sciences: Selected Writings in Semiotic Theory (Minneapolis: University of Minnesota Press, 1990).
7. For some classic sociological observations examining the "give and take" process (i.e., reciprocation) see, Georg Simmel, The Sociology of Georg Simmel (New York: The Free Press, 1950), at 122-125, 145-153
8. Bronislaw Malinowski, Crime and Custom in Savage Society (London: Routledge Kegan Paul, 1937), at 39-45.
9. Claude Levi-Strauss, Les Structures Elementaires de la Parente (Paris: Presses Universitakes de France, 1949), chapter v.
10. For a cogent assessment of how social interaction along these lines unfolds see, Max Weber, Max Weber: The Theory of Social and Economic Organization (Glencoe, Illinois: The Free Press, 1947), at 111-115, 118-120.
11. The are several useful anthologies, exploring various disciplinary frames regarding the gift or interpreting classic treatises pertaining to gift-giving. The most recent and accessible is Alan Schrift, The Logic of the Gift (New York: Routledge, 1997).
12. Indeed, we have omitted an important lineage of scholarship on the gift that would be necessary in a more thorough and exacting review. This lineage has fewer explicit psychological implications and is, therefore, not entirely within the scope of the present critique. These omissions include anthropological and sociological analyses that concern the economy of gift-giving or the practices of gift-giving and receiving found in all cultures, in all ages. For example, Marcel Mauss's The Gift (London: Routledge, 1990/1923-24) is generally considered the premier point of departure for modern reflection on the gift and the practice of gift-giving. Similar to Emerson and Nietzsche (scholars whose ideas we do assess), Mauss saw beyond the veil of disinterest wherein gift-giving appeared to be genuine and selfless. In fact, he noted that giving in archaic societies was a self-invested behavior governed by social rules that clearly demarcated appropriate reception and reciprocation of gifts. Mauss's observations spawned a long line of now classic explorations of gift-giving, all of which reveal the ever-presence of a system of exchange, regulating giving behaviors. See, e.g., Simmel, supra note 4, at 148-153
13. Malinowski, supra note 4, at 42-45
14. supra note 7, at 231-241
15. Georges Bataille, The Accursed Share, Vol. 1 (New York: Zone Books, 1988/1967)
16. Emmanuel Levinas, Totality and Infinity (Pittsburgh: Duquesne University Press, 1969/1961)
17. and Pierre Bourdieu The Logic of Practice (Cambridge: Polity Press, 1990).
18. There are a number of important philosophical works on the subject of ethical egoism espousing variations around a general argument that individuals ought to act principally out of self-interest. See, for example, Robert G. Olson, The Morality of Self-interest (New York: Harcourt, 1965)
19. Max Stirner, The Ego and Its Own (Leipzig: Phillipp Reclam. jun., 1893)
20. Ayn Rand, Fountainhead (New York: Signet, 1996)
21. and, much more recently, Kelley Rogers (ed.), Self-interest (New York: Routledge, 1997).
22. The principal work in which Hobbes outlines his egoistic psychology of human beings is Leviathan (Dent: London, 1914), first published in 1651. Hobbes further expounds this outlook in his treatise, On Human Nature (1650), which can be found in Body, Man, and Citizen (New York: Collier, 1962). One of the most impassioned attacks on Hobbes's egoism is that of Joseph Butler. See, e.g., Joseph Butler, Fifteen Sermons Preached in the Rolls Chapel (London: SPCK, 1970/1726).
23. Quoted in James Rachels, The Elements of Moral Philosophy (New York: McGraw-Hill, 1986), at 55.
24. J. Rachels, supra note 11, at 55.
25. See, for example, Sigmund Freud, The Interpretation of Dreams (New York: Avon Books, 1965/1900)
26. Sigmund Freud, The Ego and the Id (London: Hogarth, 1927).
27. R. Garner, Beyond Morality (Philadelphia: Temple University Press, 1994), 314.
28. From On Human Nature, supra note 10
29. quoted in Rachels, supra note 11, at 56.
30. The topography of Lacan's psychoanalytic schematizations include, in part, the interactive and combinatory effects of the Imaginary, Real and Symbolic Orders. The Three Orders represent Lacan's thinking on the nature of subjectivity. As we subsequently explain and explore, the imagos or mirror stage of psycho-social development, as linked to Lacan's Imaginary Order, is significant for better comprehending identity and the gift of advocacy. For more on the Three Orders see, Jacques Lacan, Ecrits, trans. A. Sheridan (New York: W. W. Norton Co., 1977), at 146-178
31. and for a dynamic conception of agency see Lacan's infamous "Schema L," at 193-194, 310-316.
32. Indeed, the popularity of ego psychology today in part rests on its assessment of one's self-interests, expressed, at times, through mechanisms of transference and counter-transference wherein these unconscious dynamics considerably inform overt behavior. See, e.g., Henry Bacal and K. Newman, Theories of Object Relations: Bridges to Self Psychology (New York: Columbia University Press, 1990).
33. For applications to mental health advocacy see, B. Arrigo and C. Williams, "The Ethics of Advocacy for the Mentally Ill: Philosophic and Ethnographic Considerations," Seattle University Law Review 24/2 (2000, forthcoming).
34. In R. W. Emerson, Essays and Lectures (New York: Literary Classics, 1983/1844).
35. Ibid., at 536.
36. G. Shapiro, "The Metaphysics of Presents: Nietzsche's Gift, the Debt to Emerson, Heidegger's Values", in The Logic of the Gift, ed. A. Schrift, supra n.7.
37. R. W. Emerson, supra note 18, at 536.
38. The term "rights," as used hereinafter, refer to "valid, legally recognized claim[s] or entitlement[s], encompassing both freedom from government interference or discriminatory treatment and entitlement[s] to a benefit or service." R. Levy and L. Rubenstein, The Rights of People with Mental Disabilities (Carbondale: Southern Illinois University Press, 1996), at 13. Some examples include: the right to mental health treatment; the right to refuse mental health treatment; the right to the least restrictive alternative when involuntary treatment is deemed necessary; and various institutional rights such as adequate food, clothing, shelter, safe conditions, and the like.
39. For a legal semiotic critique concerning many of these rights see, supra note 1, Contours, at 129-202.
40. Involuntary hospitalizing persons with psychiatric disorders is one case in point. The semiotic values that inform how jurists interpret the sign of mental illness and/or the sign of civil commitment indicate that "treatment," "sickness," "incompetence," and other disease- and deficiency-based values are the preferred signifieds at work in courtroom decision making. These meanings obtain despite alternative contents that would be more fully affirming of the psychiatric citizen's humanity. Bruce Arrigo, supra note 1, Madness, at 76-105.
41. As we subsequently explain, this matter is precisely at issue with the practice of mental health advocacy, whether in criminal or civil contexts. See supra note 17. For a more Lacanian-inspired critique, exploring how psychiatric citizens, mental health litigators, jurists, and others sustain the dialogue of confinement, despite advocacy efforts to the contrary see, Bruce Arrigo, "Transcarceration: Notes on a Psychoanalytically-informed Theory of Social Practice in the Criminal Justice and Mental Health Systems," Crime, Law, and Social Change: An International Journal 27/1 (1997), 31-48.
42. See G. Shapiro, supra note 20.
43. Friedrich Nietzsche, Thus Spoke Zarathustra, trans. W. Kaufmann (New York: The Modern Library, 1995).
44. Friedrich Nietzsche, Daybreak, trans. R. J. Hollingdale (Cambridge: Cambridge University Press, 1997)
45. Friedrich Nietzsche, Thus Spoke Zarathustra, supra note 26
46. Friedrich Nietzsche, On the Genealogy of Morals, trans. W. Kaufmann and R. J. Hollingdale, with Ecce Homo (New York: Vintage, 1967).
47. Martha Nussbaum identifies and explores six of these arguments in her "Pity and Mercy: Nietzsche's Stoicism," in R. Schacht, ed., Nietzsche, Genealogy, and Morality (Berkeley: University of California Press, 1994).
48. F. Nietzsche, Daybreak, supra note 27, at 86.
49. M. Nussbaum, supra note 28, at 150.
50. F Nietzsche, Daybreak, supra note 27, at 84.
51. Ibid.
52. Ibid.
53. Ibid.
54. G. Shapiro, supra note 20, at 278.
55. Ibid.
56. This problem of failing to represent completely the interests of those for whom such advocacy is intended has been explored considerably in the mental health law context. At the center of this controversy are persons with psychiatric disorders wherein the legal community asserts its responsibility to protect precious liberty interests and the clinical community maintains its obligation to provide treatment and quality care. The psycholegal problems stemming from these entrenched positions have created a climate of "illness politics" and paternalism in which mental health system users experience abandonment and marginalization. See, e.g., B. Arrigo, "Paternalism, Illness Politics, and Civil Commitment: Assessing the Current Debate and Outlining a Future Direction," Journal of Law and Health 7/2 (1994), 131-168
57. B. Arrigo, "Convict Criminology and the Mentally Ill 'Offender': Prisoners of Confinement," in J. I. Ross and S. Richards (eds.), Convict Criminology (Belmont, CA: Wadsworth, 2001), forthcoming.
58. This is a reference to Derrida's epistemology wherein an absence (i.e., a term or phrase) is concealed, dormant, repressed in the value-position that is spoken, activated, privileged. The combinatory effects of the binary terms tells us something about their mutual interdependence and the " undecidability" of the hierarchy itself. For a detailed critique of this process in the legal sphere see, J.M. Balkin, "Deconstructive Practice and Legal Theory," Yale Law Journal 96/2 (1987), 743-386
59. Drucilla Cornell, "The Philosophy of the Limit: System Theory and Feminist Legal Reform," in D. Cornell, M. Rosenfeld, and D. Carlson (eds.), Deconstruction and the Possibility of Justice (New York: Routledge, 1992), 68-91.
60. For a recent application of these notions in the area of law and medicine see, B. Arrigo, "Martial Metaphors and Medical Justice: Implications for Law, Crime, and Deviance," Journal of Political and Military Sociology 27/2 (1999), 307-322.
61. The (im)possibility of the pure gift is explored by Derrida in several places. Most notably, however, we find a sustained treatment of the gift in Jacques Derrida, Given Time. 1. Counterfeit Money, trans. P. Kamuf (Chicago: University of Chicago Press, 1992)
62. Jacques Derrida "The Villanova Roundtable," in J. Caputo, Deconstruction in a Nutshell: A Conversation with Jacques Derrida (New York: Fordham University Press, 1997).
63. J. Derrida, "The Villanova Roundtable," supra note 39, at 18.
64. See supra notes 4-5 and accompanying text.
65. This indebtedness is better understood as part of the economy of the gift that is governed by social rules and expectations. See supra note 8 and accompanying references.
66. J. Caputo, supra note 39, at 141.
67. Ibid.
68. J. Caputo, supra note 39, at 147.
69. Aristotle, The Nicomachean Ethics, trans. W. D. Ross (London: Oxford University Press, 1959/c. 340 BCE).
70. For a more detailed analysis of this and other semiotic reflections on mental health treatment, see B. Arrigo and C. Williams, "Law, Ideology, and Critical Inquiry: The Case of Treatment Refusal for Incompetent Prisoners Awaiting Execution," New England Journal On Criminal and Civil Confinement 25/2 (1999), 367-412.
71. For an application of the Derridean gift to justice and equality, see B. Arrigo and C. Williams, "The (im)possibility of democratic justice and the 'gift' of the majority: On Derrida, deconstruction, and the search for equality," Journal of Contemporary Criminal Justice 16/2 (forthcoming, 2000).
72. The mental health literature, whether addressing criminal or civil matters, is replete with this deficit-model language. In fact, the values underneath or behind this discourse inform the manner in which juridical decisions unfold, significantly affecting the humanity of psychiatric citizens. For some representative semiotic critiques along these lines see, e.g., B. Arrigo, "Insanity Defense Reform and the Sign of Abolition: Revisiting Montana's Experience," International Journal for the Semiotics of Law X/29 (1997), 191-211
73. B. Arrigo, "The Behavior of Law and Psychiatry: Rethinking Knowledge Construction and the Guilty But Mentally II Verdict," Criminal Justice and Behavior: An International Journal 23/4 (1996), 572-592.
74. A. Stone, Mental Health Law: A System in Transition (Washington, D.C.: National Institute of Mental Health, U.S. Government Printing Office, 1975).
75. See, e.g., J. Beck and E. Golowka, "A Study of Enforced Treatment in Relation to Stone's 'Thank You' Theory," Behavioral Sciences and the Law 6 (1988).
76. J. Caputo, supra note 39, at 141.
77. Supra note 16, Ecrits, at 4.
78. Ibid., at 2.
79. See, e.g., Paul Julien, Jacques Lacan's Return to Freud, trans. D. Simiu (New York: New York University Press, 1994), at 30.
80. James Gallop, Reading Lacan (Ithaca: Cornell University Press, 1985), at 79.
81. For a detailed and accessible assessment of this process with application to the formation of subjectivity in the legal sphere see, D. Milovanovic, "Rethinking Subjectivity in Law and Ideology: A Semiotic Perspective," The Journal of Human Justice 4/1 (1992), at 44-50.
82. Supra note 16, Ecrits, at 4.
83. This specular image remains constant throughout the life course, informing the constitution of one's self. See. Ellie Ragland-Sullivan, Jacques Lacan the Philosophy of Psychoanalysis. (Chicago: University of Chicago Press, 1987), at 2
84. A. Lemaire, Jacques Lacan, trans. D. Macey (New York: Routledge Kegan Paul, 197), at 237-238.
85. This same dynamic of identification exists in an array of social contexts. For example, the manner is which mental illness is defined as such exists within and outside of mental wellness and vice versa. The (psychiatrically disordered) self is both connected to and apart from the (psychologically well-adjusted) other. For an application of this logic in the mental health sphere see, C. Williams, "Inside the Outside and Outside the Inside: Negative Fusion From the Margins of Humanity," Humanity Society 23/1 (1999), 49-67.
86. For applications of this phenomenon in diverse sociolegal contexts see, e.g., D. Caudill, "Lacan and Legal Language: Gaps in the Meaning, Meaning in the Gaps," Law and Critique 3/2 (1993), 169-210
87. D. Milovanovic, "Lacan's Four Discourses: Chaos and Cultural Criticism in Law," Studies in Psychoanalytic Theory 2/1 (1993), 2-23
88. H. Stacey, "Lacan's Split Subjects: Raced and Gendered Transformations," Legal Studies Forum 20/3 (1996), 277-293
89. B. Arrigo, "Desire in the Psychiatric Courtroom: On Lacan and the Dialectics of Linguistic Oppression," Current Perspectives in Social Theory 16 (1996), 159-187
90. and B. Arrigo and T. R. Young, "Theories of Crime and Crimes of Theorists: On the Topological Construction of Criminological Reality," Theory and Psychology 8/2 (1998), 219-252.
91. Anthony Elliot, Social Theory and Psychoanalysis in Transition (Oxford: Blackwell, 1992), at 125.
92. G. W. F. Hegel, The Phenomenology of Mind, trans. J. Baillie (New York: Harper and Row, 1967)
93. A. Kojeve, Introduction to the Reading of Hegel, trans. J. Nichols, Jr. (New York: Basic Books, 1969/1807).
94. Supra note 61, at 125.
95. For Lacan, the combinatory and interdependent effects of the Three Orders (Real, Symbolic, and Imaginary) prominently impact the constitution of subjectivity wherein one's identity is more divided and de-centered than unified and stable. This is because the subject is saturated in language (the Symbolic Order) which always and already speaks desire. The voice of desire passes through the "I"; that is, the one who speaks. See, supra note 16, at 166. Thus, the imago can only offer a temporary image of coherence and coordination.
96. Sigmund Freud, "On Narcissism: An Introduction," Standard Edition of the Complete Psychological Works of Sigmund Freud, vol. XIV (London: Hogarth Press, 1958), at 73-102.
97. Sigmund Freud, The Origins of Psychoanalysis, trans. E. Mosbacher J. Strachey (New York: Basic, 1954), at 123.
98. Supra note 16, Ecrit, at 19.
99. D. Evans, An Introductory Dictionary of Lacanian Psychoanalysis (New York: Routledge, 1996), at 214.
100. J. S. Lee, Jacques Lacan (Boston: Twayne, 1990), at 27.
101. Supra notes 9-17 and accompanying text.
102. For a more detailed philosophical exposition on the relationship between the ethics of advocacy for the mentally ill in which the theme of "love thy neighbor" is critiqued see, B. Arrigo C. Williams, supra note 17.
103. The "trace" is a reference to Derrida's position on binary terms (e.g., self vs. other) wherein each term contains the hidden remnant of the other term. Thus, that which is defined or felt as presence (the privileged term) always implies a concealed value or its absence (the repressed term). Deconstructively speaking, however, both are essential to the meaning of each. For an accessible summary of Derrida's philosophy within the legal arena, see Dragan Milovanovic, The Sociology of Law 2nd (Albany, New York: Harrow Heston, 1994), at 101-102.
104. See, e.g., Carol Warren, The Court of Last Resort (Chicago: University of Chicago Press, 1982)
105. James Holstein, Court-Ordered Insanity: Interpretive Practices and Involuntary Commitment (New York: Aldine de Gruyter, 1993).
106. See, e.g., M. Woodside and B. Legg, "Patient Advocacy: A Mental Health Perspective," Journal of Mental Health Counseling 12/1 (1997), 38-50.
107. Abuses run the gambit from unnecessary detainments, to wrongful incarceration, to an absence of treatment, to forced treatment notwithstanding objection, to questionable competency determinations, etc. For more on the psycholegal problems, impacting persons with psychiatric disorders see, Michael Perlin, Mental Disability Law: Cases and Procedures (Durham, North Carolina: Carolina Academic Press, 1999)
108. Bruce Arrigo, Introduction to Forensic Psychology: Issues and Controversies in Crime and Justice (San Diego, California: Academic Press, 2000).
109. See, L. Kopolow, "The New Federal Role in Treatment Rights, Refusing Treatment," in A. E. Doudera J. P. Swazey, eds., Mental Health Institutions - Values in Conflict (Ann Arbor, MI: AUPHA Press, 1982), at 169
110. supra note 74, at 43-47.
111. The advocate can provide criminal and/or civil mental health assistance. For some Lacanian-animated observations along these see B. Arrigo, "Legal Discourse and the Disordered Criminal Defendant: Contributions From Psychoanalytic Semiotics and Chaos Theory," Legal Studies Forum 21/4 (1994), 95-113
112. B. Arrigo R. Schehr, "Restoring Justice for Juveniles: A Critical Analysis of Victim Offender Mediation," Justice Quarterly 15/4 (1998), 629-666.
113. F. Gutierrez, "Who is Watching Big Brother when Big Brother is Watching Mental Health Professionals: A Call for the Evaluation of Mental Health Advocacy Programs," Law and Psychology Review 20 (1996), 57-96.
114. Ibid., at 73.
115. Ibid., at 73-75.
116. P. Julien, supra note 54, at 86.
117. Ibid., at 24.
118. This re-presentation process functions as an unconscious filtering system in which the thoughts, feelings, actions, and desires of the subject are reformulated, consistent with the advocate's world view, notwithstanding the best of intentions. For some Lacanian analysis along these lines in the sociolegal sphere see, Dragan Milovanovic, Postmodern Law and (Dis)Order: Psychoanalytic Semiotics, Chaos, and Juridic Exegeses (Liverpool, England: Deborah Charles, 1992)
119. Dragan Milovanovic, Postmodern Criminology (New York/London: Garland, 1997).
120. See supra note 77 and accompanying text.