The legal and psychological communities continue to address, with some profound uncertainty, the matter of civil confinement for dangerous mentally ill citizens (Arrigo, 1996a, 1993a; Isaac and Armat, 1990; LaFond and Durham, 1992). Proponents of involuntary hospitalization contend that a temporary loss of freedom, liberty, and right to self-determination is justified in order to protect society from the unstable and potentially injurious behavior of severely disordered psychiatric persons (e.g., Scull, 1989; Chadoff, 1976; Treffert, 1985; Roth and Kroll, 1986; Arrigo, 1993a: 13-17). This decidedly conservative and medical-model perspective has dominated social, political, and economic practice since the Enlightenment (e.g., Szasz, 1987, Scheff, 1984; Sedgwick, 1982). Critical social inquiry, however, articulates a potent rejection concerning the foundations of contemporary psycho-legal theory and practice (Arrigo, 1996a). These criticisms converge on a number of arguably false, morally ensconced, and politically laden assumptions attributable to modern science:
1. That mental illness is a real difference necessitating censorship;
2. That the mentally ill present a greater identifiable threat to society than the mentally healthy; and
3. That science possesses the key to understanding and treating mental disease or defect (Arrigo, 1992: 9-12; 23-29).
One of the most influential and time-honored of criticisms is associated with Michel Foucault's social control thesis (e.g., Foucault, 1980; 1977; 1976; 1973; 1972; 1970; 1965). Foucault's critique of institutions (i.e., psychiatric, penal) viewed confinement of the noncriminal as a method of controlling (or isolating) the socially undesirable. Consistent with other justice systems, Foucault (1965, 1977) reasoned that institutionalization w as a means of policing public hygiene that is, ridding society of difference. Whether intended public policy or the likely progeny of society's faith in the prophecies of contemporary science, Foucault (1980) argued that involuntary confinement of the mentally ill and dangerous productively and inventively advanced the state's regime of power in the name of privileged scientific truth.
Given Foucault's position, a number of important issues arise that yield alarming, or at least troubling, effects. Specifically, psychiatric and legal systems of control (e.g., the hospital and prison) promote legitimate social welfare interests; however, these interests are based on questionable and, in some cases, inaccurate science (Arrigo, 1993b: 142-157; LaFond and Durham, 1992). Thus, the existential condition of diverse mentally disabled citizens is normalized, depathologized, and homogenized, difference is corrected, indeed, sacrificed at the alter of medical knowledge, and the politics of psychiatric justice prevails (Arrigo, 1996a; see also Arrigo 1997a on the concept of transcarceration and the mentally ill).
This article examines the present-day vitality and utility of Foucault's social control thesis as revealed in several enduring psycho-legal controversies. Specifically, we examine how the crossroads of clinicolegal science have produced problematic criteria for civil commitment by exhaustively focusing on the meaning of mental illness and dangerousness. We demonstrate how these criteria effectively promote and maintain the state's realm of power while substantially undermining the fight of vulnerable collectives and/or citizens to be different (Kittrie, 1971).
The intent behind our theoretical analysis of confinement and application to civil commitment practices is deliberately limited in scope and depth. We merely wish to tease out several of the more salient conceptual insights contained in Foucault's work and to strategically connect them to mental health law. This approach allows us to draw suggestive and, arguably, provocative linkages to subsequent sections of the article. …