Stories as Tales and as Histories: A Response to the Commentary

Jan Broekman's thoughtful coda raises issues and possibilities falling beyond the ambit of my essay but suggesting possibilities for a greatly enlarged version of that essay. In this reply or comment, I will confine my attention to but three of the themes or observations he offers. The first pertains to the similarities and differences between the "corrective and the curative." The second appears only as a sentence fragment but one rich in implications; that is, the aims and powers of law and psychiatry to "neutralize all relativity." And the third--which I take to be his major thesis--the notion that law and medicine, in their own special ways, offer "an interpretation of life," presumably drawn from any number of coherent and equally valid alternative accounts.

In keeping with United States case law, I do, indeed, note that from a constitutional point of view whether a place of confinement is called a prison or a hospital makes no difference. The point of this observation is that confinement itself removes one from the class of free citizens and relocates that person to a setting in which the bounties of liberty are systematically withheld. In making this observation, however, I do not draw the wide and daring range of implications discovered by Foucault. Rather, what is placed in comparison are the procedural and evidentiary strictures governing the imprisonment of persons, and the shifting and often impressionistic criteria that have long guided involuntary commitment proceedings. It is not necessary to rehearse either the abuses or the reforms that mark out the history of such proceedings. It is sufficient to note that centuries of moral and juridical refinement have gone into the development of criminal trial procedures, the refinement serving the interests of justice by erecting ever higher barriers to arbitrary and capricious punishments. There has been far less attention paid to challenges to liberty originating in the clinic and the consulting room.

There is a fundamental difference, even if not faithfully acknowledged, between "corrective" and "curative" functions as these are served by juridical and medical science respectively. The corrective functions of law presuppose a moral agent capable of a rational reappraisal of life and both the courage and power to reform itself. If the powers and principles of justice are to be implemented in ways that are "corrective," it is necessary that the target or subject of attention possesses what are finally moral resources. There may be a measure of this in the "curative" functions of psychotherapy but surely not generally across the medical specialties. Even within psychiatry, the appeal of the therapy is less to the moral dimensions of life--the dimensions that mark out the boundaries of, yes, good and evil--than to modes of interpersonal adjustment and accommodation.

The aims and methods of psychiatry being so various, it would be hazardous to declare that in all or most of its manifestations it seeks to "neutralize all relativity." Law, on the other hand, is a veritable textbook addressed to the contextual factors by which actions are to be understood and evaluated. Thus, when the common law gives validity to the terms of contract favorable to a child who entered into the agreement but nullifies one that is unfavorable to the child's interests, "relativity" has not been neutralized but profoundly respected. The law makes careful distinctions between premeditated crimes and those committed in the heat of the moment, between transactions intentionally fraudulent and those effected by unnoticed ambiguities, between reckless endangerment and a vehicle hitting a slick spot in the road. It is the elasticity rather than the rigidity of law that necessitates courts, juries, arguments, appeals procedures, rules of evidence, and so on. Ideally, the aim of the law is justice, not punishment or incarceration. Justice includes considerations of equity, injury, intentionality, context--the rich panoply of things done, meant, thought, and suffered by social beings. It is the means by...