Sunday, July 08, 2007

The Management of Deviance and the Foundation of Law

First year law students are introduced to a legal fiction with extraordinary power--the "reasonable person" (who used to be a reasonable man before transcending gender several decades ago). The reasonable person is the touchstone against which conduct is judged. Deviation from the touchstone--at some point--produces legal consequences. Defining the normal, the concept has been subject to criticism, especially by groups (women, and people forming communities adhering to non-majority population mores). A useful discussion can be found in Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press, 2003).

Yet the basis of the criticism, once one plows through the nuance and complexity is simple: every self-conscious group within a larger political community wants to come within the definition of the normal, and law becomes a medium for administering--for managing--the normal. Thus, the problem of the reasonable person standard is almost invariably one of having drawn a person (and the identifiable group of which she is a part) out of the circle of the normal, and the object of the standard itself is to manage its borders. Inclusion is the object, but borders remain important. Thus social organizations confront two problems--defining the normal, and managing the borders between the normal and everything else, borders no one seems interested in eliminating. See Larry Catá Backer, Queering Theory: An Essay on the Conceit of Revolution in Law, in Legal Queeries 185-203 (Leslie J. Moran, et al. eds., London: Cassell, 1998).

In many parts of the world, both the normal and its borders, are a matter of faith. Faith communities will supply the definition of the normal, the tolerated, and the abnormal. The normal incurs no impediment. The tolerated is managed, with incentives created for a change in behavior or status so that the tolerated can become normal, and the abnormal is suppressed. Suppression can take the form of death, expulsion, quarantine (incarceration of a criminal or civil nature) or "cure." These notions, and the judgments they represent, become part of the fabric of society. And in that form can become self executing. That is, these notions are enforced not merely by official efforts (through the police power of the community) but also by the complex networks of social organizations that define the relationships between individuals who consider themselves bound together in one way or another.

In the West generally, and the United States in particular, both the normal, its borders, and its management have increasingly become a matter of science. American law is a function of, to some extent, the pronouncements of the "scientific" community, in everything from race relations (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ), to the incarceration of sexual "deviants" (Kansas v. Hendricks, 521 U.S. 346 (1997)), to the execution of the "abnormal"(Ford v. Wainright, 477 U.S. 399 (1986)), to the regulation of pregnancy (Stenberg v. Carhart, 530 U.S. 914 (2000)), and gender relations (City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978)). Science helps define the normal, and increasingly provides the means for both suppressing the abnormal and inducing the normal. Law, culture and science work together to foster a manged system of normality, tolerated deviance and the protection of the borderlands of the normal through the suppression of the abnormal.

As a cultural matter, then, the social exerts a tremendous power to induce the normal in individuals which is mirrored in law. It is no wonder, then, that over the last decade, Americans have found it increasingly medicate themselves to the "normal." And this medication produces a regime of constant management in which the individual cedes control over his will to the medical products she is told provide the vehicle to a normal and thus most privileged) life. Just as religiously based regimes are grounded in a mandatory abnegation of individual will to the that of the messengers or representatives of the Divine (the Islamic Republic of Iran provides an interesting living variant of this form), scientifically based appear to be moving toward a similar system of abnegation to the representatives of scientific truth.

An example of the power of these cultural understandings was recently on view in an advertisement of several pages inserted into a Sunday periodical aimed to the "common person" in the United States. The printed version of the Sunday, July 8, 2007, issue of Parade contained an ad spread paid for by AstraZeneca Pharmaceuticals LP and AstraZeneca LP, members of the AstraZeneca group of companies (collectively, the "Company") for one of its products--Seroquel. The ad starts with a cartoon of a woman who appears sad. She relates to us her condition--sometimes she felt sad for a long time and sometimes she felt "up." She was irritable. Her thoughts raced very quickly, talked too fast and found it hard to allow others to participate in conversation. This was wrong. And she was right to think so. For she had what might be the classic symptoms of a disorder--bipolar disorder. It is described by the National Institute of Mental Health: "Different from the normal ups and downs that everyone goes through, the symptoms of bipolar disorder are severe. They can result in damaged relationships, poor job or school performance, and even suicide. But there is good news: bipolar disorder can be treated, and people with this illness can lead full and productive lives." National Institute of Mental Health, Bipolar Disorder (What is BiPolar DIsorder). What makes the advertisement interesting, from a cultural perspective, is the way in which it seeks both to provide information about the condition, its acceptance of the realities of its effects (there is no known cure), the consequences of its symptoms (one cannot function effectively in society and in extreme cases might even do oneself harm), and the utility of its products for the management of the condition. The advertisement suggested that the ingestion of this drug will make its user "feel better." But it must be taken until the day one dies. And it appears, from the advertisement, as if any combination of the symptoms described, might be susceptible to characterization as bipolar disorder in need of permanent medication (do I suffer from bipolar disorder (or better put, ought I to become dependent on this product) if I have mood swings, talk to fast and too much, interrupt people and have a mind that races too fast?--only my doctor will know for sure). An invitation to a visit to the doctor.

The acceptance of a condition as socially deviant or negative, the production of a drug to ameliorate the condition, the embrace of a scientific culture in which conditions (deviations from the normal or acceptable) can be managed, the conferral of power on a group of intermediaries with specialized skills (medical professionals they are increasingly called), the cultivation of the social acceptance of taking this medication to "cure" the condition, and the necessary dependency that is produced by this management is not unique to Seroquel and bipolar disorder. One sees this pattern in everything from the consequences of hair loss (Rogaine), to the management of AIDs. See Martin A. Levin and Mary Bryna Sanger, After the Cure: Managing AIDs and Other Public Health Crises (University of Kansas Press, 2000) (the work is described as showing that " in the public health arena, management matters as much as medicine"). Indeed, the management of AstraZeneca (and other drug companies) management, like legislatures enacting statutes or courts deciding cases, can do little more than respond to this cultural phenomenon in the context of their own areas of social intervention. It has become a commonplace in the United States to treat all problems as medical disorders, or potential medical disorders. Deviations from the average can be a sign of addiction: Gambling, shopping, sex, the Internet can all be objects of addiction. Alcohol, drugs, caffeine, tobacco and food can be the substances through which the bad behavior of addiction can be triggered. And addictions can be managed, but not cured. Michael D. Lemonick (with Alice Park), The Science of Addiction, Time, July 16, 2007 at 42-48. Law plays an important part in the science of bad behavior through addiction. Law is a necessary means of managing addiction by controlling the substances that give rise to them. Law and science thus work in tandem.

There is a parallel between the constitution of power and order in a culture whose ordering principles are "science" and those whose ordering principles are "religion". Both are dependent on formal and informal networks of rules based on a cultural acceptance of the privileged normal, the sphere of a tolerated deviation and the suppression of abnormality. Both devote considerable resources to the discovery of deviance and to its management and both devote substantial resources to incentive structures that privilege the normal. Clearly systems based on science and those based on religion are not the same. Yet, both evidence the cultural power of faith (understood in quite different fashion). As system, both also evidence the relationship between cultural foundations and the distribution of power. There is a pattern to power--requiring a ceding of power to a class of intermediaries. It suggests the ways in which the relationship between individual and community might require a relationship of dependence and management in which social and political institutions (law, science and religion) are built around the "reasonable person." The power of the average is strong indeed.

1 comment:

Anonymous said...

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