Ball, M --- "Governing depression in Australian legal education: power, psychology and advanced liberal government" [2012] LegEdDig 5; (2012) 20(1) Legal Education Digest 15

• Self-government and the fashioning of resilient personae: legal education, criminal justice, and the government of mental health

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Self-government and the fashioning of resilient personae: legal education,
criminal justice, and the government of mental health

M Ball

Legal Education Review, Vol. 21, No. 2, 2011, pp 277-301.

Fostering ‘resilience’ has become an integral part of the government of advanced liberal societies. It appears within governmental programs ranging from attempts at the broad social level to prevent or minimise the damage and disruption produced by acts of terrorism and promote the security of the population, to educational or developmental initiatives at a more individualised level, intended to divert those ‘at risk’ of a range of negative outcomes. In a variety of contexts, the development of resilience is increasingly playing a part in the lives of criminal justice professionals, whether it involves their implementing governmental programs that seek to foster resilience in others, or being encouraged to become resilient themselves.

Much of the research on resilience seeks to discover how to ‘build’ or ‘inculcate’ resilience effectively in groups of people, assuming that it is a psychological or, indeed, biological feature of humans that can be drawn out of them. Such studies do not fully explore the way that resilience can be understood as a piecemeal construction produced through various governmental relations, and therefore they do not explore how these activities link to, and seek to achieve, broader forms of social government.

While there has been some consideration of the ways in which resilience features within governmental programs and operates as a technology of rule, less research attention has been devoted to the other central method through which government is achieved in advanced liberal societies; the way that these programs actually enjoin citizens to take responsibility for producing resilient personae. In particular, analyses of the assemblage of various discourses, expertise, and practices that people are encouraged to use in fashioning themselves as resilient personae, and the potential effects and costs of that fashioning, are rare. Through a discourse analysis of three ‘prescriptive’ (or what Foucault terms ‘practical’) texts, this paper seeks to address this, by highlighting the discourses and practices that are offered to people as ways that they can fashion resilient personae.

This analysis particularly focuses on the formation of resilient legal and criminal justice professionals in the context of undergraduate legal education. It explores the advice that is offered to students and through which they may form a persona that is resilient to the potentially negative mental health impacts of law school. Legal education simply offers a specific context (and one that is not irrelevant to criminal justice professionals) with which to look at the broader process of the formation of resilient personae. It is suggested that the formation of resilient personae in other contexts-including among other criminal justice professionals such as government actors, administrators of criminal justice, or police and correctional officers-is likely to reflect the formation of resilience in this context, linked as it is to advanced liberal government and the management of risk in the context of such government.

The formation of resilience among law students has become a significant concern among legal educators because of the mental health risks that the study of law poses.

This risk, posed by legal education, has led to the protection of the mental health of law students becoming a priority of government within legal education. This is achieved through changes to the curriculum, the dissemination of support resources, and the actions of students themselves, including through the fostering of resilience by law schools, law firms, and professional organisations.

A central feature of such responsibilisation and entrepreneurialism is the successful navigation of risk through the adoption of techniques of risk management.

Resilience is perhaps the clearest instance where the responsibility for managing uncertain (and other) risks is placed in the hands of individuals. It is thereby possible to understand the imperative to become resilient as a way of responsiblising subjects to manage uncertain risks.

In themselves, the prescriptive texts selected for analysis here signify this responsibilisation of law students for taking care of their mental health. These texts include: a student handbook titled Depression in Australian Law Schools, produced jointly by the Australian Law Students Association and the depression support organisation beyondblue (ALSA); a document titled Stress and Depression, produced by a British organisation called LawCare, which provides mental health support for lawyers and law students (LawCare no date); and an American journal article titled On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession (Schiltz 1999). While not an exhaustive selection of such texts, these three documents are broadly representative of the diversity of the advice presented to students within the UK, the USA, and Australia. They clearly reflect the discursive shift wherein the responsibility for acting upon one’s mental health is not borne solely or even primarily by private counselling services or the state, but increasingly by law students themselves.

Psychological discourses are very apparent within the prescriptive texts examined here. Given the authoritative position that psychological discourses have in advanced liberal societies (as bodies of truth offering scientific and expert knowledge about mental illness), it is hardly surprising that they feature within the formation of resilient personae, and are thus widespread throughout these texts. Resilience, it is implied, can be developed by having students become subjects of these psychological discourses.

This message is most apparent throughout the ALSA and LawCare texts, which both clearly position psychological discourses as authoritative.

To develop resilience through psychological subjectivity, these texts offer students condensed checklists of symptoms and other diagnostic tools-providing authoritative representations of the problem they discuss-that can be used to determine and define their mental health concerns. While such diagnostic tools can help students who may be experiencing stress or other problems to understand what they are experiencing, these texts also encourage students to use these tools in a ‘precautionary’ or ‘preparatory’ manner: as a way of being aware of the situations, feelings, or experiences that can produce mental illness, so that they can act pre-emptively to avoid or minimise any problems.

While psychological discourses are in an authoritative position vis-à-vis the truth about mental health in advanced liberal societies, there are points at which these texts (particularly the LawCare document) emphasise the biomedical and neurochemical aspects of mental health. Simply stated, these biomedical discourses privilege an understanding of mental illness as the result of a deficiency or imbalance of particular neurochemicals and hormones. As such, the advice offered within the LawCare text about avoiding or developing resilience to mental illness centres on regulating these bodily chemicals. Furthermore, the LawCare text encourages students to regulate the intake of substances because they can have depressive effects on the body. For instance, students ought to ‘avoid alcohol’ because it is a depressant, quit smoking because it is an addiction and damages the body, and also minimise their caffeine intake.

Psychological and biomedical discourses interact throughout these texts, one effect of which is the suggestion that a student may form a resilient persona by engaging in practices of self- discipline. The interaction between these discourses becomes apparent regarding the government of stress.

To govern stress, the ALSA document encourages students to adopt a raft of time- management practices: ‘[t]he best way for students to reduce stress is to be organised. Know your due dates, make goals to have certain things done by and do your best to stick to these deadlines’. They are to become disciplined by organising their daily and weekly activities, so that they have a clear idea of when assessment is due and can meet their competing work, family, and study commitments without becoming stressed.

Such discipline is also to be directed beyond the student’s activities towards their physical body. They are to: maintain a regime of physical exercise every day to release endorphins; adopt various relaxation and meditation techniques (such as listening to music, breathing deeply, and closing their eyes at stressful moments); and ensure that they regulate their sleeping patterns and their intake of substances (including diet, cigarettes, and alcohol).

Here, students are encouraged to produce resilient personae through practices that seek to discipline the activities that they undertake, as well as their very bodies. This self-discipline relies on an extension of both the targets of, and rationalisations for, government. The student’s study habits, time management practices, and daily routines become targets of government and, while these have long formed part of the way students are governed within educational institutions, the way that this government is rationalised has altered.

In addition to the psychological and biomedical discourses that are prominent throughout the advice offered to students in the formation of resilient personae, another discourse is apparent, especially within the Schiltz article. This discourse encourages students to become virtuous persons, whose resilience stems from their ability to shape their personal and professional ethics in particular ways.

The Schiltz article thoroughly dissects the aspects of legal education and professional practice that appear to contribute to negative experiences for law students and early-career legal professionals (such as depression, substance abuse, divorce, job dissatisfaction, and pessimism). It places the blame for these negative experiences squarely at the feet of the legal profession (particularly large corporate firms), suggesting that the commercialisation of the profession, the pressures of the competitive market of legal services, the adversarial environment that produces aggression and hostility, the lack of control that legal professionals have over their professional lives, the lack of collegiality they experience, and the hours that they work, produce these problems.

As such, the first step towards becoming resilient to these pressures, this text suggests, is for students to forego the idea that money is the determinant of their worth and success.

In its place, students are to adopt a new set of ethical dispositions and become virtuous persons, so that they may become resilient. This is to be achieved in three ways: according to the professional ethical requirements of lawyers; acting ethically in their work as a professional; and living an ethical life.

Producing a virtuous persona in this way is represented as requiring a constant work on the self. The Schiltz article reminds students that acting ethically is not an easy task, and, in order to be an effective way of forming resilience to the negative and unethical culture that pervades large firms, must become ‘habitual’ for students: ...you are not going to have time to reflect on each of your actions. You are going to have to act almost instinctively...These qualities have to be deeply ingrained in you, so that you can’t turn them on and off - so that [...] you will automatically apply the same values in the workplace that you apply outside of work, when you are with family and friends.

A further reason that students are encouraged to lead an ethical life is so that they can maintain their responsibilities to other communities within which they are enmeshed: ‘...to [their] family, to [their] friends, [and] to [their] community’. This balance between the personal and professional-discussed above with regard to time-management and fulfilling commitments as central to avoiding depression for other reasons -is given a moral inflection here.

The cost of producing resilience through the fashioning of virtuous persons in this manner is an extension of government. While it is not unusual for the formation of professional personae to involve the government of ethical and moral values to some extent, this primarily occurs in the process of ensuring that one can act as an ethical professional. In most cases, at least in legal education, it does not directly extend to the government of non- professional ethical values. However, it is clear that according to the Schiltz article, governing professional ethics is not enough to ensure that students become resilient. Here, the targets of government are extended to encompass the student’s non-professional ethical values, again under the rationalisation provided by a health discourse.

As discussed above, the entrepreneurial disposition inculcated within subjects of advanced liberal rule is one reason that students are encouraged to fashion resilient personae. However, entrepreneurialism is not solely an impetus or rationalisation for fashioning resilience. It is also one manner in which such resilience may be performed. Being an entrepreneur of oneself does not simply refer to gaining an economically competitive edge in a capitalist marketplace, or making the most financially rewarding investment in oneself. In this particular context, the prescriptive texts under consideration here encourage students to ensure that they maintain their own health and happiness in other aspects of their life by adopting an entrepreneurial disposition.

This is clear within the ALSA and LawCare documents when they encourage students to maintain a work-life balance, as discussed above.

While acting in this entrepreneurial manner possibly allows students to maintain their work performance and avoid adverse effects that might impact upon their employment, it nevertheless opens another space within which an entrepreneurial subjectivity can encompass more than a focus on financial success. Thus, in the case of resilience within legal education, entrepreneurial subjectivity is not simply the impetus for fashioning resilient personae, but also a mode of continually performing that resilience.

The foregoing exploration of the formation of resilient personae among law students has examined this process of self-government in only one specific context. It is worth, then, considering what this might suggest about resilience in a range of contexts beyond the law school, including the diverse areas in which criminal justice professionals work, and also considering what the formation of resilient personae in this context might say about its formation in other areas. While it is not suggested that the formation of resilient personae in all of these contexts has the same contours, at least considering where similarities may be found can provide the impetus for further investigations.

The example of legal education demonstrates in particular that the modes of self- government for producing resilient personae draw from discourses and modes of self that already circulate generally (particularly psychological, biomedical, and entrepreneurial discourses).

In the particular context of criminal justice professionals, for example, it is worth looking at the role played by psychological subjectivities and forms of self-government focusing on the management of stress and practices of self-discipline. Many acting within the criminal justice system are exposed to traumatic events and stress-horrific crime scenes, continual exposure to human tragedy, and even basic job pressures-as well as clients, prisoners, or alleged offenders that may be seen as morally repugnant. Through a variety of training practices and services offered, these professionals have numerous tools available to them through which to manage these experiences (which include shaping themselves in line with these discourses and subjectivities). In many cases, though, such practices may be disparately practised and individually taken up. However, as part of the governmental shaping of resilient personae, these kinds of discourses and forms of self are likely to become required techniques of self-government.

Contrary to many assumptions within the research literature and, indeed, among those seeking to foster resilience in students, resilience is not necessarily a quality inherent to one’s psychological or biological makeup. Nor can it be unquestioningly celebrated as a persona that legal education must foster. Rather, resilience is a disposition that is fashioned in various and complex ways, through multiple practices of self-government, and in line with numerous governmental projects that have the responsibilisation of subjects for the management of various risks and uncertainties as their goal.

Without directly intervening to shape the non-professional ethical values of students, the attempts to encourage the production of virtuous persons analysed here have nevertheless carved out these values as a target of government, provided the boundaries within which self-government ought to proceed, and suggested a model against which that self-government can be measured; in the process producing the very self-governing subjects necessary for advanced liberal forms of ‘government at a distance’.