The Menendez Menace: A Review of Wilson\’s Moral Judgment

For years, social scientists have been trying to expand their influence from beyond the small university departments where they are holed up to the real world where serious work is being done. To some degree, they have been successful.

In the world of business, for example, diversity counselors with Ph.D.s now advise CEOs on how to handle employees from different backgrounds. In elementary schools, university-trained facilitators devise programs for children that foster well-being and self-esteem. In the home, licensed professionals employ models of communication published by psychologists to arbitrate disputes between family members.

Armed with data and “investigative” studies, social scientists have gained power in the larger world, not by commanding others, but by convincing them. Using “concepts” and “cultural measures,” they proclaim their ability to get below the surface of the human psyche and to grasp the inner man. They understand what makes man tick. Whether it is because of their power over language – or the layman’s fear of their Latin-inscribed sheepskins – they are believed.

One area in which the social scientists’ penetration efforts have had tremendous success is the American legal system. Taking the witness stand as “experts,” a few social scientists have presumed to explain human behavior and account for it. This presumption, in some high-profile cases, has replaced judging it.

Fortunately, there is now someone confident enough publicly to confess disbelief. In his outstanding new book, Moral Judgment,1 James Q. Wilson wades through all the “syndromes” and “stress disorders” and reveals that much of this expert testimony is not science at all. Mr. Wilson himself is a social scientist, perhaps one of the most famous of our day. Nevertheless, like all great people in their fields, he understands the limits of his field. He describes in clear detail the creeping influence of social (“soft”) science in the courts and sternly warns against this new trend. Mr. Wilson looks at three aspects of law in particular – imperfect self-defense, intoxication and battered women. In each case, he finds something ominous. The long-held notion that people are responsible for their actions is on the wane. According to this new theory of volition, outside forces – parents, society, drugs and so forth – can somehow dissolve themselves into the essence of the human imagination and exert an effect on the human will, but without becoming an essential part of a person’s identity.

Psychosexual Abuse

During the Menendez brothers’ first trial, the defendants claimed that a long history of psychosexual abuse at the hands of their parents had caused them to believe they were in imminent danger. This belief prompted them to kill their parents – not in an act of self-defense as the term is commonly understood but, rather, as an act of “imperfect self-defense.” Various experts testified at the trial, including one who invoked research on snails to explain the psyches of the two young men. The result was a hung jury.

According to this novel theory of human motivation, the experience of psychosexual abuse was sufficiently intense as to close its hand around the wills of the brothers – to become an integral part of their psyches, thereby moving them to violence at a much lower threshold of stimulus than would normally be required. It “twisted their minds,” in street parlance. Yet somehow the experience remained apart from their minds, or at least apart from that section of the mind that gets blamed when it does something bad. This is “abuse excuse” – a traumatic experience can incite an illegal action.

These traumatic experiences start to coalesce until they form a second nature, or will, within a human being. But while they are held to lie within a person and exert influence, they are not actually considered part of the person, at least not for the purposes of assigning guilt. (It almost reminds reminds one of the human-torso-incubated, malicious life forms in the ever-popular Sigorney Weaver Alien movies.) In the case of the Menendez brothers, this “foreign element” was sufficiently believed in by half the jurors to make a relatively straightforward decision of guilt impossible.

Such thinking represents the beginning of the proverbial slippery slope, Mr. Wilson argues. The foundation of law has always been the belief that people have the capacity to be responsible – that they have within them the capacity to choose whether or not to obey the law. If they choose to disobey the law, they deserve to be punished. Judges and juries have, for many centuries, allowed “mitigating circumstances” to be factored into the final judgment. But those circumstances were never meant to deter them from their primary duty, which was to decide the case. Now, backed up by pretender science, these mitigating circumstances rival, if not supplant, real evidence. They change the primary duty of the judges to explaining the case. The result is a diffusion of guilt, such that a defendant becomes only one of several potentially guilty parties. The party to which real guilt is most frequently assigned is of course “society.”

The logical conclusion to this process of diffusion is an amoral state in which humans lose their moral agency altogether. When a tree branch falls and hits someone on the head, the injured person does not kick the tree. The tree is not a moral agent; it can neither be guilty nor innocent. So one does not punish the tree. The story of the branch falling can only be explained, not judged. Similarly, the effort to substitute explanation for decision in our legal system causes people to lose their moral agency. It makes even murder little more than a chance confluence of random events, like a windy day and a weak branch.

Mr. Wilson offers some guidelines in the last chapter of his book that are designed to prevent a further slide down the slope. Many of them are grounded in common sense, such as a clear definition of the difference between first- and second-degree murder. It is a sad commentary on the state of the academy when one of its brightest lights has to waste precious time doing damage control by reminding its members of what most Americans have taken as given for two centuries.

The only thing Mr. Wilson’s book lacks is a chapter that puts these changes in the legal system in broader relief. One has a sense that something big is going on here – a tremendous shift in culture. The new effort to explain away guilt by blaming outside forces recalls an earlier epoch, long before modernity, when Achilles blamed the gods for his own failures or when Xerxes, upon losing his bridge to the sea, beat the water. There is something anachronistic and alarming about the change. It seems as if the stamp of the old world, with its sinister irrationalities, is betraying itself and rising up to strike in the face the spirit of the modern age. Despite this deficiency, Moral Judgment is an excellent, well-written book. And an important one. It should be read.

Dr. Dworkin is the Co-Director and CFO of the Calvert Institute.

End Notes

[Top] 1.James Q. Wilson, Moral Judgment: Does the Abuse Excuse Threaten our Legal System? (New York, N.Y.: Basic Books, 1997), 134 pp.

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