Contemporary society is largely under the sovereignty of laws. Whenever you get up in the morning and look at the daily newspapers, you find a lot of reports about quarrels, processes, sentences, new laws. Most of the Nation's life takes place in Courtrooms, and judges have grown to a considerable role in public life. Lawsuits are considered a weapon to win what has not been won in Parliament and through legislature. An amazing example is the war on tobacco in the USA that is carried out by eight Attorneys-generals against tobacco companies. Stefano Rodotà called this process the "legalization" of society. The Law has substituted the moral certainty and only the Law can split up good and evil. Here is to mention that common usage confounds jus and lex, Law and legislation. I shall speak here about laws, not about.the Law . In democratic societies, the legal system arises from a compromise between the interests of majority and minority, and, from this point of view, Law cannot be equated with power. Democracy, in itself, is pluralist and a majority cannot utilize Law as means of abuse.The art of democracy is the art of compromise between the interests of majority and those of minority. An art which is subtle and sagacious and, when not applied, leads to "the tyranny of majority", an ominous sign of foul democracies. Alexis de Tocqueville wrote wonderful pages about "the tyranny of the majority". This was, alas, one hundred and thirty years ago and is scarcely enforceable in present times. Compromise - stresses Rodotà - must not be read as mess or consociativism. Compromise is a well balanced and self regulated principle of social maturity and justice. Civil rights are actually the most important issue of the political controversy. Not by chance Norberto Bobbio entitled one of his last books "The Age of Rights" (Torino, 1990). What takes place nowadays in the courtrooms is, indeed, social struggle and social transformation.
In the middle of this class struggle the psychiatrist is increasingly exposed to the snares of the courtrooms. There are already enough traps and snares in Psychiatry, where ideas and opinions may greatly differ. Additionally to these (common and work-related difficulties) grew, in the last years, the number of prosecutions involving psychiatrists. The psychiatrist is often called to the Court: as witness, as expert, as defendant. It is not easy for the psychiatrist to understand and fully comprehend the winding roads of law. In analogy the diagnosis, in psychiatry, is made through a careful data processing which may require several weeks .To understand the diagnostic program, its related difficulties and drawbacks, it is necessary to master the subject. By analogy in the course of a process it is extremely difficult for the lay man (and the psychiatrist is one of them) to become aware of the intents of judges and lawyers and to be able to withstand many different questions. This derives also from the intrinsic difficulty of explaining in easy terms to judges, lawyers and jurors such an entangled matter as psychiatry. The psychiatrist is often unable, in the courtroom, to make his position clear and comprehensible. It may happens that the psychiatrist be the scapegoat of the social contradictions and, among them, that of the most heavy, the ineffectiveness of the Health System.
Thomas Gutheil wrote recently a survival guides ("The Psychiatrist in Court"). I have not yet read this promising book, but it is a valuable sign that, in the course of the last year, quite a number of publications concerning the relationship between law and psychiatry have been published in Italy: "Il processo invisibile", Antonio Forza editor (1998),"Raccontare delitti", Adolfo Francia, editor (1999), or the interesting, although dogmatic, small booklet edited by Vittorino Andreoli ("Psichiatria e crimine"). In these books, particular care is devoted to the interpretation of the different languages: the language of law and the language of psychiatry. Each one of these languages has different rules, and the aim of the authors was to elucidate the written and non-written rules, in order to be able to establish cross-cultural bridges. Law needs to be interpreted. There is more than 7.500 laws in Italy, most of which stem from different social and cultural backgrounds and have been slowly superimposed by historically different social assets. This is a maze to the judge and the lawyer themselves. Why should it not be a maze to the psychiatrist? The psychiatrist, provided he has been able of getting out from the jungle of different psychiatric approaches and theories - each one devoted to a peculiar aim - is, in the courtroom, obliged to face another labyrinth. Results, on the practical side, are disappointing. Both as witness and expert, or also as defendant, the psychiatrist is easily caught in logical contradictions, as the field of legal logic has little to share with the field of human behavior. As witness in the court he is often prone to interpret what did happen, making therefore poor and incomprehensible testimony. As expert he relies on the fact that the basic theories of psychiatry are familiar, at least, to judges and lawyers, if not to jurors. This is indeed a wrong conception as most of them have more prejudices concerning psychiatry than a balanced and an informed view. To try to explain his conclusions about the guilt or non-guilt, the psychiatrist should resort to an oversimplification and vulgarization, which is apanage of few. And he should keep his language to a level of understandability. As defendant he should know in advance that a fragile society, as ours, tends to criminalize individuals rather than undergo an examination of conscience. This is to mean that he should know, beforehand, that if there should be a guilty, he, and not the society, will be blamed as such. In having the psychiatrist as scapegoat are working not only social reasons, but also unconscious reasons, blaming the man who pretends to value other men.
And, in any case, the psychiatrist is faced with another difficulty: the gap between the spoken and the written word. Clinical files should include all important informationabout the patient. But this is hardly the case. Most of the information either is oral or is not written in order to keep the privacy of the patient. Often what can be found in clinical files is a sort of quick summary and judgment of the psychic conditions of the patient, devoid of any clinical discussion, which could help in focalizing his mental state. This is to mean that, in trials, clinical files are often of limited value. Judges and lawyers work on written word and on papers. Psychiatrists are used to work on verbalization. The difference is not a minimal one. The stereotype of reality is strongly emphasized by written words, which are easily (or, let us say, more easily) translated into the code.
The enforceability of psychiatry to the code is a major problem of the law. The Italian Code, although extensively amended, is still the Code Rocco of 1930, whereas most of European Penal Codes were approved in the last thirty years (Spain, 1963; Germany, 1968; France, 1981; Greece, 1985). The English System based on common law is not comparable to ours and is more agile when dealing with psychiatric cases. The English or American psychiatrist is, however, frequently caught in the same traps as the psychiatrists of other nations and cultures. Understanding and explaining - as well as healing - are, in fact, antinomic to punishment, and therefore the psychiatrist, in the legal system, is perceived as a sort of foreign body. From this point of view the psychiatrist - in the legal system - may represent the "Unheimlich", a trait that, until now, had been ascribed either to the psychoanalyst or to the patient himself. It is not surprising that in the former Soviet Union the "Unheimlichkeit" of the psychiatrist has been readily acknowledged and all psychiatrists were considered civil servants, a condition very similar to that of psychiatrists working under the Nazi or Fascist régime. And, therefore, it is not surprising that their diagnosis were modeled upon political directives. Something similar is happening in Italy where the psychiatrist, according to political directives, acknowledges or does not acknowledge the psychopathology of the patient. It seems that nowadays psychopathology must comply with statistics, budgets and political aims. From this point of view the specific health and interest of the individual has no priority in comparison to the interests of the State. The psychiatrist is a civil servant - and this is clear according to the recent Bindi Law - and therefore he should be compliant more with the State than with his responsibilities to the patient. The problem arises if we consider what is, really, the State, and if the State, as it should be, is the democratic representation of all citizens, majorities and minorities. The psychiatrist deals largely with people, who become, in this ways, real subjects. In body and soul.