Law and spirituality both deal with the issue of responsibility.
The law sets out norms and standards promulgated by authorities in accordance with the procedures established by the state, typically set out in a constitution or governing statute, or according to custom. These norms and standards might or might not reflect accurately a consensus about values and principles that are shared by the people governed by them, and might or might not have been adopted in procedures that are satisfyingly participatory and democratic. We are probably aware of laws that we consider be fair and useful, and laws that we consider to be unfair and destructive. Marginalized viewpoints have less influence and power in shaping the laws; socially dominant groups make laws for themselves and for the groups they subordinate: men make laws for themselves and for women, whites make laws for themselves and for blacks, wealthy individuals make laws for themselves and for everyone else.
Nevertheless, there is a dominant-consensus norm in human rights worldwide that values the “rule of law” as such, and requires that breaches or violations of law are enforced by holding lawbreakers responsible. The principle of deterrence holds that expectation of punishment for lawbreaking should promote compliance with the law, and optimistically perhaps also implies that this promotes a sense of responsibility by making people aware of their behavior and their effort to comply.
The legal value of responsibility, and its meaning as used in law, is somewhat at odds with the spiritual principle of responsibility.
Spiritually, through a practice of mindfulness of some sort, a person can gain insight into the ultimate responsibility of self as an active principle that creates through choices. By becoming aware of, accepting and affirming our own choices, we both gain greater effective control over the course of our lives, and gain a sense of humility in knowing our specificities and limitations.
Restorative practices to some degree aim to unite the spiritual with the legal concept of responsibility, to promote mutual acceptance of our responsibilities towards each other in a collective process that is inter-subjective and not hierarchical. Many restorative practices, especially those based on lessons from First Nations, include spirituality as a grounding value. By looking to the future and aiming to restore and heal the breach and the harm it caused, rather than focusing on the act of lawbreaking in isolation from its context, restorative practices have the merit of breaking the cycle of violence and revenge. Yet, even the best kinds of restorative practices would have to acknowledge their limitations in cases where a person rejects the consensus norms, or utilize some form of coercion or separation or mutual adjustment if the perspectives cannot be reconciled.
Restorative practices and indigenous concepts of law lay greater emphasis not only on personal and subjective responsibility, but on the function of law as a guide to behavior, as an educational and even aesthetic function. We can look to good law as showing us a “beautiful” way to be in the world, a way that affirms “truths” we “hold to be self-evident.” Human rights law draws on this tradition; it speaks to lasting values but is also evolving and subject to reconsideration, as most evident in the challenge posed by the Convention on the Rights of Persons with Disabilities to earlier soft-law instruments on human rights in the field of mental health. (The CRPD overturned earlier norms that treated involuntary commitment and forced treatment as necessary evils to be regulated, and instead prohibits these practices as violations of the equal right of persons with disabilities to liberty and security of the person, legal capacity, freedom from torture and ill-treatment, and right to free and informed consent in health care.)
For the most part, both legal and spiritual traditions related to responsibility have excluded people who are labeled as mad, insane, mentally ill, people with psychosocial disabilities. I say “labeled as” because it is not an identity that a person can claim in the absence of internalizing a judgment about oneself by others, or a fear of such judgment. In this way I think Foucault was correct in studying madness from an external viewpoint, since “madness” belongs to those who construct it and not to those who are so labeled. (Similarly, the construct of “womanhood” may properly belong to men; we female adult human beings can happily do away with it except to make visible the classification that oppresses us, in order to destroy it.)
The spiritual aspect of this was brought home to me recently by the posting on Facebook of an article on Mindfulness as a Buddhist practice that has lost its roots and is being co-opted for therapy. While the article made a valid point about any formulaic therapy necessarily being a superficial version of mindfulness, I was disturbed by its tone of fear and creation of a mystique around mindfulness practice, as something that is not a happy pill and therefore can be dangerous. There is in this premise the truth that much of psychiatry including formulaic therapy promotes the illusion of easy solutions to psychic suffering that absolve the self of responsibility – responsibility both for oneself inherently, and for the choices being made about seeking ease for the suffering. But at the same time, the idea that because of the risks entailed in a practice of mindfulness, risks that arise from the emerging awareness of responsibility, with the temptations of ego-power and escape into fantasy, mad people should be wary of doing it, is just wrong.
As I said in my comments to the Facebook post: “We are already dealing with the risks of mental and spiritual exploration (or things coming on us without having explored) – it’s not as if we can shield ourselves. We have to deal with it, like being thrown into the ocean, we are already there and have to learn to swim.”
I am reminded of something Chris Hansen said during an Intentional Peer Support training, in countering a similar idea of our fragility as promoted by the mental health system. I’m paraphrasing, but it was something like: All the things they are trying to protect us against, such as being homeless – most of us have already been through that and survived.
These kinds of insights can be turning points for any of us in getting free of the shame-narratives put on us by the mental health system, by law and by many layers of societal attitudes. In my case, being locked up as a mental patient was a signal that I was a loser and a social failure. That was a very long time ago but the narrative persists in my self-awareness. On the other hand, it has been hard for me to publicly claim my agency and responsibility in creating some of the beautiful principles in the CRPD. In a conversation with a friend recently I caught myself trying to come up with explanations, source material, where it came from, it was just connecting the dots. She said, “nobody else knew what dots to connect.” I’ve been very much aware of the countervailing tendencies to avoid ego and to avoid being written out of history – but it makes a difference to me personally to be aware of the fact of my agency and not need to do anything more with it.
In my work on legal capacity, I have emphasized criminal responsibility and responsibility in general, because of the way that discrimination against people with psychosocial disabilities manifests as a refusal to acknowledge our moral agency. This puts us in legal and social limbo as non-persons, it limits our interactions with others and our potential to create relationships. But that is only from the outside and to the extent that prevailing attitudes and norms affect us and our friends and communities in real life. Like any oppressed people, we don’t live the stereotypes about us, many of us are excruciatingly aware of moral choices and responsibilities, especially in relation to responding to others’ emotional and practical needs. Peer support comes out of seeing each other as real, not buying the crazy-label or the illusion of moral absence. That is why so many of us are enraged about the insanity defense and advocate for its abolition.
I think that more discussion is warranted in our community about responsibility – from an inside perspective. What is its value to us, both spiritually and legally. What would be required to remake law and legal responsibility into something that we see ourselves beautifully reflected in. How we struggle successfully and unsuccessfully with views about responsibility that we have absorbed from the culture around us, which often point the finger at us and say we don’t measure up. What we hold others responsible for, and how to make our judgments about their responsibility effective.
What is the relationship between restorative justice for us – e.g. reparations for the human rights violations of forced psychiatry, psychiatric drugging and electroshock, deaths in psychiatry and in police custody, severing of parent-child relationships – and restorative justice as a way of dealing with conflict in communities, as an alternative to police and prison, which would need to include us as equals with all other community members? What do we know about responsibility, from our spiritual exploration and navigation? Will there always be some disconnect between the spiritual and legal, or can law be made beautiful and evolve to continue being shaped by the truths of our lives?
Mad in America hosts blogs by a diverse group of writers. These posts are designed to serve as a public forum for a discussion—broadly speaking—of psychiatry and its treatments. The opinions expressed are the writers’ own.
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