Juridical psychology constitutes an interface between two disciplines, psychology and law, which, in spite of a common theoretical ground, have two different histories. Juridical psychology approaches law by applying methods, theories and instruments of psychology, identifying those juridical fields in which they may be applied - for instance, in criminal and legislative spheres as well as in the application of legal rules and in the allotting of punishment. Juridical psychology is defined as legal when it uses psychological criteria to interpret legal rules, whereas it is defined as legislative when it works at creating and elaborating legal norms.
Here I should like to advance a novel conceptual category, that of psychological law, and of psychological jurisprudence, which studies from a juridical standpoint legal norms deserving of a psychological evaluation for both their interpretation and application.
It is by no means easy to identify those features of the law which, by definition, regulate human conduct; an area which can be subsumed under the conceptual umbrella of psychological law. The law and the jurisprudence have always referred to psychological concepts: for instance, the mental ingredient of crime is also defined as a psychological element. Article 133 of the Italian Penal Code states that the judge, in formulating penalty to be imposed on the accused, should take into account, inter alia, the offender’s character. Moreover, certain subjective rights, such as physical integrity, honor and reputation, are known as personality rights.
Unquestionably, concepts such as corporate person (or entity) or presumptive death, are recognized by their nature as merely normative factors and therefore phenomena created by jurisprudence. For instance, the concept of "psychological maturity" is a key concept which should be distinguished from that of age, as set by law to determine legal accountability.
Through its norms, the law regulates rights and duties by prohibiting, enforcing or authorizing certain modes of conduct; a function that is absent within the scope of psychology, which is above all descriptive and not prescriptive. In any case, through the application of norms different kinds of behavior should be assessed in terms of their consequences, whether in the form of (civil) damage or (criminal) offence. However, they should also be evaluated according to the intellectual and motivational factors underpinning the conduct of the individual. For instance, it should be taken into consideration whether, during the pre-contractual stage of an agreement, the subject acted in good faith (Art. 1337 of the Italian Civil Code) (or his conduct was the outcome of bad faith?) or whether a certain entrepreneur acted with fraudulent intent, or was merely acting imprudently (Art. 43 of the Italian Penal Code).
Psychology specifically focuses on cognitive and behavioral aspects and how they impact upon third parties. Psychology is therefore the specific discipline that might help to judge the human conduct in a legal sense. From a substantial perspective, it refers to "psychological states", "situations", "circumstances", and "responsibility".
As to what concerns "pyschological states", it is sufficient to focus attention on "moral violence" or "animus possidendi".
This cultural and scientific contribution may well extend to various fields. Thus, it might be possible to conceive of a psychological civil law, a psychological juvenile law and even a fiscal one, if we recall a legislative decree approved in Italy on 5th December 1997 ("General principles related to administrative sanctions for the breach of fiscal norms"), which stipulates that, in evaluating a breach, it is necessary to take into account the personality of the transgressor (Art. 7). Additionally, it might well be conceived not only a substantive psychological law, but also a procedural psychological law which address, for instance, the methodology of providing expert evidence and assessment in matters such as adoption, custody of minors, testimony, competence to testify and so forth.
Some features of psychological law pertain to fundamentally psychological contents, such as parental unworthiness (Art. 306 of the Italian Civil Code) as a pre-requisite for adoption (Art. 5 Law 184/83), or the natural capability of undertaking legal transactions (Art. 1425 of the Italian Civil Code), or mentalistic juridical constructs such as those exemplified in the reference to good faith in simulation (Art. 1414 of the Italian Civil Code).
Let us focus on the concept of good faith. What does it mean? Does it imply that good faith should be inferred from a complex of traits and motivations underpinning specific behavior, or does it simply imply that good faith was present because a certain conduct had occurred? In both cases, cognitive psychology can provide various responses as a result of empirical research.
A vast area of psychological law concerns the topic of responsibility.
It is important here to make a distinction between a responsibility of and a responsibility for. Normally, in the legal sphere focus is on the latter, in such ambits as criminal resposibility, contractual and extra-contractual liability, and all aspects in which the individual is responsible for his/her conduct.
In Italian, it is common usage to say that "one is responsible ‘of’ the purchase department" or "one is responsible ‘of’ media advertising", focus here being not on the kind of responsibility described above (in the sense of liability for), but rather on the competence of a person holding a certain position. A position from which there could also arise some juridical responsibility. This is a responsibility pertaining to the sphere of "being": for instance, the responsibility inherent in being an Italian citizen, or being stateless, or being a citizen of the European Union. There is even a responsibility socially derived from one’s role or status, which is known as responsibility of status (e.g. the responsibility of being an entrepreneur, a parent or counsel for the defence). Sociologically speaking, status is what a person comes to expect from others, even from a legal standpoint: e.g. powers, rights, authority over others, while role is what others expect from the individual himself, both in terms of duties and responsibilities.
Therefore, the psychology of responsibility can offer remarkable contributes to law. On the other hand, the psychology of action, which studies the role of human attitudes and motivations without ignoring the context and situations and their impact upon behavior, can be of considerable use in coming to terms with many legal institutes. Criminal law requires that we judge not only persons and their conduct, but also the circumstances and the context in which behavior takes place. Art. 61/11 of the Italian Penal Code comes to mind here in reference to influence of riotous crowd, or the Art. 133 of the Italian Penal Procedural Code, that obliges the judge, in weighing the extent of punishment to be inflicted on the culprit, to take stock of the economic, social and family circumstances which might have influenced the performance of the criminal act.
The contextual circumstance is particularly relevant in matters such as putativity, which is a legal excuse (Art. 59/3 of the Italian Penal Code): having erroneously believed to act in a self-defence situation can be a discriminant factor if the mistake is pardonable and the evaluation of the context has been made with diligence. Psychology may again be of relevance, for instance, in a) the study of motivation and attitudes (has the person a propensity for wrongdoing? Art. 108 of the Italian Penal Code); b) in the field of cognition (was the person aware of what he/she was doing? Articles 42 and 85 of the Italian Penal Code); c) in the matter of intention (was it a voluntary, premeditated act? Was it the result of negligence or sheer imprudence? Articles 42, 43 and 577 of the Italian Penal Code); or simply in the matter of the act itself (could the person have done otherwise? Did the person do his/her utmost to avoid the damage caused? (Articles 42 and 62 of the Italian Penal Code).
It is sufficient to browse through any manual of psychology to realize to what extent specific themes of this discipline are relevant for hermeneutic purposes in the legal field.
The application of psychology to this area can then be both direct (in the sense of being a scientific tool, e.g. the psychology of memory to evaluate evidence) and indirect (e.g. utilizing its methods and tools for inquiry into and assessment of expert evidence and as an advisory tool in respect to the tutelage of minors, or in cross-examination, etc.).
For instance, with reference to the latter, leading questions are forbidden in the examination in chief. But, under which parameters and circumstances can a question be recognized as ‘a leading question’? How can counsel make a potentially ‘leading question’ acceptable by modifying its connotation?
As may be seen, psychological law can constitute a conceptual model for the acknolwledgment and application of the law. Besides this, how can one expect to pass judgment on a conduct and, consequently, on an individual without even knowing him or her? (Table 1).
Table 1