In "Mises and Psychiatry," in the February Liberty, I showed that Ludwig von Mises failed to appreciate the incompatibility between the principles of the free society that he espoused and the principles of psychiatry that he uncritically embraced.

Friedrich von Hayek has articulated the political philosophy of individual liberty and responsibility more fully than anyone else, but, as I shall show in this essay, he largely shared Mises's blind spot about psychiatry: Hayek's conception of the rule of law is incompatible with his recognition of the legitimacy of psychiatric coercions and excuses, in both civil and criminal law.

According to Hayek, "Under the rule of law, government can infringe a person's protected private sphere only as punishment for breaking an announced general rule" (emphasis added, 2). This assertion contains two parts, the first relating to punishment, the second, to general rules. Only the second part has received the attention it deserves from libertarians. The first part of the assertion, which emphasizes that the "government can infringe a person's protected private sphere only as punishment" (my emphasis) has been curiously neglected by libertarians. This neglect is especially significant, and astonishing, in view of the fact that more Americans are now deprived of liberty on therapeutic than on punitive grounds. Jurists and psychiatrists never tire of asserting that all coerced psychiatric interventions are therapeutic, not punitive.

If nonpunitive sanctions would be excluded from among the legitimate powers of the government -- as Hayek recommended -- psychiatry as we know it would disappear.

Loathing and Losing Liberty

Psychiatric diversion from the criminal justice system is a response to the need for social protection from individuals whose behavior is attributed to madness (3). Such attribution is often the result of the individual's inviting psychiatric interference in his life, by acting "crazy." Why do some people act that way? Because they do not know what to do with themselves and with their lives: they are aimless, conceited, incompetent, are faced with the consequences of earlier unwise choices, and are or feel helpless and dependent on others. They try to unload their problems of making a life for themselves on the shoulders of others, typically family members or psychiatrists. Unless they can find a family member or friend willing to assume this burden for them, they often become defined as psychiatric patients. The result is a kind of psychiatric matrimony, in which liberty is replaced by another, higher good: the patient sacrifices his own liberty for security; and the psychiatrist sacrifices the patient's liberty -- and often some of his own as well -- for the domination he gains over the patient (4).

Hayek recognized the problem that people who reject liberty pose for the free society. "It is very probable," he wrote, "that there are people who do not value the liberty with which we are concerned, who cannot see that they derive great benefit from it, and who will be ready to give it up to gain other advantages; it may even be true that the necessity to act according to one's own plans and decisions may be felt by them to be more of a burden than an advantage" (5).

Most institutionalized mental patients rank liberty-and-responsibility low on their scale of values. How should the philosopher of freedom -- or a system of laws committed to protecting individual liberty -- treat persons who instead of wanting to be free, want to be enslaved? Who instead of wanting to be adults, want to be children or child-like? Both Mises and Hayek treat such persons as if they were, in fact, unfit for liberty because, like infants and imbeciles, they lack responsibility.

Individuals who complain of mental symptoms or irresistible impulses feel, or claim to feel, unfree with respect to certain experiences or desires. Individuals confined in mental institutions are deprived of much of their liberty. In both cases -- more obviously in the latter -- the "victim" is "compensated" for his loss of liberty by a commensurate "relief" from the responsibility of having to lead his own life.

Insanity: Condition or Strategy?

The weakness of Hayek's writings touching on psychiatry lies in his treatment of insanity as a condition, similar to infancy, rather than as a strategy, similar to imitation (6). It is important to note that psychiatry's assault on the philosophy of liberty has always focused at this point, which is its Achilles heel -- that is, the notion that insanity annuals personal responsibility. For centuries alienists, mad- doctors, and psychiatrists have claimed that, like infants and imbeciles, insane persons are not responsible for their behavior; and people in all walks of life -- professionals and layman alike -- have increasingly embraced that claim. That is the basis for the near-universal acceptance -- by liberals, conservatives, and even many libertarians -- of the legitimacy of psychiatric diversion from criminal responsibility. Hayek wrote:

"The complementarity of liberty and responsibility means that the argument for liberty can apply only to those who can be held responsible. It cannot apply to infants, idiots, or the insane. It presupposes that a person is capable of learning from experience and of guiding his actions by knowledge thus acquired; it is invalid for those who have not yet learned enough or are incapable of learning. A person whose actions are fully determined by the same unchangeable impulses uncontrolled by knowledge of the consequences or a genuine split personality, a schizophrenic, could in this sense not be held responsible, because his knowledge that he will be held responsible could not alter his actions. The same would apply to persons suffering from really uncontrollable urges, kleptomaniacs and dipsomaniacs, whom experience has proved not to be responsive to normal motives" (7).

The proposition that so?called kleptomaniacs and dipsomaniacs "suffer from really uncontrollable urges" is erroneous and unsupportable by evidence. Hayek here falls into the linguistic trap of psychiatry: he seems to think that because a word ends with the Greek suffix "maniac," it designates a bona fide disease, characterized by irresistible impulses to commit a particular act. Thus, the person who likes to steal is a "kleptomaniac, " the person who likes to drink, a "dipsomaniac," the person who likes to commit arson, a "pyromaniac," and the person who likes his own single-minded obsession, a "monomaniac." (In the antebellum South, "drapetomania" was considered a mental disease characterized by the slave's uncontrollable urge to escape from bondage and seek liberty (8).)

The language of psychiatry serves the purpose of making certain people seem like madmen or mad women, exhibiting behaviors they do not will and for which they are not responsible (9). Hayek adopted this language when he spoke of "schizophrenics ... whose actions are fully determined." However, there are no objective tests to determine who is and who is not schizophrenic. Moreover, if an action is fully determined, it ceases to be an action and becomes instead a movement or reflex. These are crucial distinctions, especially because responsibility is an attribution, not an attribute, and because Hayek rightly insists that freedom under law requires the impartial application of rules applicable equally to all.

When Hayek spoke of a "schizophrenic" as a person whose actions are not altered by his knowledge that he will be held responsible for them, he was gravely mistaken. If that were true, such a person could not be managed in a hospital. Plainly, the conduct of such a person is susceptible to influence, albeit often of a different kind than that which might persuade others. In addition, Hayek's reasoning about schizophrenics contradicts one of his important caveats, namely, that "in public life freedom requires that we be regarded as types, not as unique individuals, and treated on the presumption that normal motives and deterrents will be effective, whether this be true in the particular instance or not" (10). If by types Hayek meant categories identified by objective criteria, exemplified by "persons accused of crimes" or "persons convicted of crimes" -- not categories identified by subjective judgments, exemplified by characterizations such as "subversive persons" or "persons suffering from schizophrenia" -- then he is arguing for treating innocent persons as innocent, and guilty persons as guilty. If so, both civil commitment and the insanity defense violate the rule of law.

Schizophrenia: Attribute or Attribution?

In its accepted use, the assertion "he is a schizophrenic" resembles the assertion "he is a political subversive." Each phrase refers to an attribute for which there is no objective test: it is an attribution not susceptible to proof or disproof. Neither assertion resembles the phrase "he is a diabetic," naming an attribute for which there is an objective test and, which, therefore is an attribution susceptible to proof or disproof.

The problem with the notion of schizophrenia is, moreover, twofold. On the one hand, the alleged illness cannot be identified by objective tests. At the same time, the behaviors attributed to "it" are, de facto, illegal, punishable by severe psychiatric sanctions.

It is unclear, then, how Hayek would reconcile his recommendation to treat people as types in precisely that public sphere in which psychiatrists insist that schizophrenics (as indeed all mental patients) ought to be exempted from the protections and penalties of the rule of law, and instead treated with "therapeutic compassion," as unique, sick individuals.

Hayek's well-founded insistence that, in a free society, laws must promulgate abstract or general rules is itself enough to invalidate the justification for all psychiatric coercions and excuses. In a passage that could have been written specifically to refute such justifications, Hayek wrote: "Because the rule is laid down in ignorance of the particular case, and no man's will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by 'law' we mean the general rules that apply equally to everybody .... As a true law should not name any particulars, so it should especially not single out any specific persons or groups of persons" (11).

Mental health laws mandating psychiatric coercions prescribe exactly what Hayek says genuine laws ought not to do: they single out "mentally ill" persons and judge and regulate their behavior by special criteria used to judge and regulate the behavior of "mentally ill" persons: the behavior of such "mentally sick" persons is not judged and regulated by the criteria of guilt and innocence, the criteria we use to judge and regulate the behavior of "normal" persons. Instead, it is judged and regulated by the criteria of psychiatry, turning those under "psychiatric treatment" into actual or potential nonpersons, devoid of what we regards as our constitutional or human rights.

References

1. Friedrich A. Hayek, The Counter-Revolution of Science: Studies in the Abuse of Reason (New York: Free Press, 1955), pp. 15-16.
2. Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 206.
3. See Thomas S. Szasz, "Psychiatric Diversion in the Criminal Justice System: A Critique," in Randy E. Barnett and John Hagel III, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Cambridge: Ballinger, 1977), pp. 99-120. I thank Randy E. Barnett for permission to use material from this chapter.
4. Thomas S. Szasz, Schizophrenia: The Sacred Symbol of Schizophrenia [1976] (Syracuse: Syracuse University Press, 1988), Chapter 4.
5. Friedrich A. Hayek, The Constitution of Liberty, op. cit., p. 18.
6. Thomas S. Szasz, Insanity: The Idea and Its Consequences [1987] Syracuse: Syracuse University Press, 1997).
7. Friedrich A. Hayek, The Constitution of Liberty, op. cit., p. 77; emphasis added.
8. Thomas S. Szasz, "The sane slave: An historical note on the use of medical diagnosis as justificatory rhetoric," American Journal of Psychotherapy, 25: 228-239 (April), 1971.
9. Thomas S. Szasz, Insanity, op. cit.
10. Friedrich A. Hayek, The Constitution of Liberty, op. cit., p. 78.
11. Ibid., pp. 153-154.

Copyright, 2002, Liberty Magazine.
Thomas S. Szasz Cybercenter for Liberty and Responsibility:
Copyright © 1998-2002 by the author of each page, except where noted. All rights reserved.