Morality and Pretextuality, Psychiatry and Law: Of “Ordinary Common Sense,” Heuristic Reasoning, and Cognitive Dissonance

Abstract

The thesis of this paper is that we will not make significant progress in understanding the tensions between the legal and mental health systems until we look carefully at a series of dissonances that affect both systems. We must consider the way that the law frequently condones pretextuality as a way of dealing with troubling or cognitively dissonant information, and the way that mental health professionals encourage a self-referential concept of morality as a way of subverting legal doctrines with which they disagree. These dissonances must be considered contextually in connection with the ways that courts generally read social science data and the ways that jurors and legislators employ such cognitive devices as “ordinary common sense” and heuristic reasoning in their judgments of cases involving mental disability questions. To ameliorate the current dilemma, we must redefine institutional and professional roles, reconsider the way we privilege expertise, recalibrate our allocation of “moral jurisdiction” over these matters, and consciously confront the way our simplifying thinking mechanisms distort the underlying social and political issues.