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Article Excerpt
Concepts from the procedural justice literature in social psychology are examined that offer useful guidance for social work researchers with interests in investigating informal adjudications, speciality treatment courts, and other areas of the administrative process previously neglected in mental health services research. These theoretical concepts are offered as an alternative to the therapeutic jurisprudence framework being adopted by some social workers in the field of law and mental health. The issues outlined in this paper also draw on the health services and psychotherapy literature to highlight issues involving process and procedure as social justice and their significance for advancing a new role for social work researchers in the field of law and mental health research.
Keywords: procedural justice, law and mental health, therapeutic jurisprudence, treatment courts
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This paper examines issues of fairness and justice in the field of law and mental health. Justice is one of the many moral standards employed by philosophers and ethicists to evaluate the social institutions of any society (Folger & Cropanzano, 1998; Cohen, 1989). Justice has become a major area of study in the social and the behavioral sciences (Bierhoff, Cohen & Greenberg, 1986; Deutsch, 1985; Folger, 1984; Lerner & Lerner, 1981; Mikula, 1980; Wakefield, 1988a; Wakefield, 1988b). In addition, there is a burgeoning body of research derived from classic works in social psychology on procedural (Deutsch, 1975; Lind & Tyler, 1988; Thibault & Walker, 1975) and distributive (Greenberg & Cohen, 1982; Walster, Walster, & Berscheid, 1978) issues of justice.
Although social work as a profession has had a longstanding commitment to values of social and economic justice (CSWE, 1994; NASW, 1999), social work researchers have contributed minimally to our understanding of the role of justice in the field of law and mental health. Psychologists, psychiatrists, and lawyers have dominated most advances in this field of scientific inquiry. Yet these professionals do not possess the same avowed commitments to social justice as the profession of social work.
In the field of law and mental health, therapeutic jurisprudence has gained prominence as a useful framework for examining issues of law and policy (Tomkins & Carson, 1999). Therapeutic jurisprudence (TJ) directs researchers to concentrate on the law as a therapeutic agent by examining the therapeutic consequences of the law (Madden & Wayne, 2003). This approach to social legal inquiry focuses on whether the legal rule or practice contributes to the psychological and physical well-being of a person who is subject to legal proceedings (Rottman & Casey, 1999). For this reason, some social workers are also looking to this framework as an important guide to research and practice in the field of law and mental health (Madden & Wayne, 2003).
While this framework is consistent with values that are important to social workers, it does not take into account issues of fairness involving procedures and interpersonal processes that influence how consumers evaluate the fairness of their mental health services. Indeed TJ helps us focus on effective outcomes, but does not specify or give explicit theoretical guidance as to how the law should promote the achievement of therapeutic effects in any area of mental health law (Carson, 2003; Kress, 1999; LaFond, 1999; Sales & Shulman, 1996). This lack of theoretical guidance is one of the important reasons why social workers should be open to integrating other useful conceptual frameworks into their research of issues involving the interface of law and mental health.
The purpose of this paper is to examine how evolving theoretical conceptions of fairness in social psychology can assist social workers in advancing research in the field of law and mental health. Wakefield (1988a; 1988b) established the utility of employing distributive justice as a framework for guiding social work practice and the conceptual links between psychotherapy and justice. In this paper, we argue that social workers also need to adopt procedural justice as a framework for investigating social justice concerns in the field of law and mental health not covered by concepts in the distributive justice framework.
The paper begins with a brief overview of traditional legal assumptions about the exclusion of extra-legal factors, such as science and justice, in law and in law-like decision-making processes. To set the background, we also examine how the architects of therapeutic jurisprudence have offered useful insights about the role of science in law that can be exploited by social work researchers to realize some of their own social justice aims. Following this, we review the literature in social psychology on procedural justice to clarify how decision-making procedures and interpersonal processes are linked with social justice concerns involving issues of fairness. In examining this social science literature, we also identity concepts that can guide the research and the evaluation of services in the field of law and mental health. We conclude with a review of developments in law and mental health procedures and in interpersonal processes that can benefit from research by social workers with interest in procedural and interpersonal justice matters.
Background of the Problem
Scholars and advocates in mental health have a long history of appealing to justice in evaluating and in defending their standards of care. However, these appeals are rarely uniform since they do not involve a claim to a distinctive principle of justice. Throughout the course of human history, a diverse array of meanings, values, and interpretations has been applied to the concept of justice. Aristotle, for instance, assumed that equality and lawfulness were two key characteristics of justice. At other points in history, different dimensions of the concept of justice have gained prominence such as fairness (Rawls, 1971), liberty (Nozick, 1974), fundamental human rights (Dworkin, 1977), impartiality (Barry, 1996), caring (Gilligan, 1977; 1982), needs (Deutsch, 1985), and social utility (Pound, 1951). Policy makers, administrators, and jurists confront the perennial task of having to strike a balance between these competing moral principles. Yet, the role of social science in this selection and ranking process has not been clarified.
Traditional scholarship in justice studies has relied primarily on normative and legal methods of inquiry. As a consequence, justice issues were considered a fundamental province of the disciplines of moral philosophy and law (Faden & Beauchamp, 1986). In moral philosophy, the objective is to provide a defense or justification for theories and principles that serve as "action-guides" in social relationships (Faden & Beauchamp, 1986). For example, the prominent theories of Rawls (1971) and Nozick (1974) on social justice have stimulated substantial debate in academic and in policy circles about appropriate principles for allocating social benefits. The aims of each of these treatises on justice are different from the pragmatic aims found in traditional legal scholarship that has been challenged by the developer of TJ (Wexler, 1993). In traditional methods of legal inquiry, issues of justice arise from the specific relief sought in legal disputes (Redlich, 1981). That is, justice problems do not arise from a study of philosophical theory or from trying to resolve a general problem of justice (Cahn, 1944). In the world of Anglo-American...
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