New Studies in Practical Philosphy

CRIME OR DISEASE?
New Studies in Practical Philosophy
General Editor: W. D. Hudson

The point of view of this series is that

of contemporary analytical philosophy.
Each study will deal with an aspect of
moral philosophy. Particular attention
'rill be paid to the logic of moral discourse,
and the practical problems of morality.
The relationship between morality and
other 'universes of discourse', such as art
and science, will also be explored.

Published
R. W. Beardsmore Art and Morality
Antony Flew Crime or Disease?
R. M. Hare Practical Inferences
R. M. Hare Essays on Philosophical Method
R. M. Hare Essays on the Moral Concepts
R. M. Hare Applications of Moral Philosophy
Pamela Ruby Plato and Modern Morality
N. M. L. Nathan The Concept of Justice
T. A. Roberts The Concept of Benevolence
CRIME OR
DISEASE?

ANTONY FLEW
Professor of Philosophy in
The University of Calgary

Macmillan Education
 ©Antony Flew 1973

All rights reserved. No part of this publication

may be reproduced or transmitted, in any form
or by any means, without permission.

First published 1973 by

THE MACMILLAN PRESS LTD
London and Basingstoke
Associated companies in New York Toronto
Dublin Melbourne Johannesburg and Madras

SBN 333 11409 4

ISBN 978-1-349-00951-0 ISBN 978-1-349-00949-7 (eBook)
DOI 10.1007/978-1-349-00949-7
Contents

Editor's Foreword Vll

Preface IX

I A Survey of the Logical Geography

II Disease and Mental Disease 26

III Determinist Presuppositions Cannot Disprove 95

Notes II7

Bibliography 1 33

Index of Personal Names 137

To the memory of
RuTH SERUYA DoNNISON
Editor's Foreword

In this monograph, Professor Flew discusses a question which

is of the greatest interest and the first importance from both a
philosophical and a practical point of view. The correct analysis
of the concept of responsibility and punishment has long been
sought by philosophers and in this monograph one aspect of
that quest is brought right up to date. A proper treatment,
unimpaired by confusions of mind or errors of fact, society's
delinquents is held by all morally responsible people to be
desirable and this monograph seeks to guide us towards that
end.
Professor Flew discusses his subject with a characteristic
wealth of documentation and clearness of thought. His con-
clusions are not reached dogmatically and his hope that this
book will stimulate further discussion is bound to be fulfilled.
Into an area so frequently darkened by prejudice, whether of
the reactionary or the radical variety, it sheds much light.

University of Exeter W. D. HunsoN

The mentally ill, far from being guilty persons who merit
punishment, are sick people whose miserable state deserves
all the consideration due to suffering humanity.
PHILIPPE PINEL (I745-I826)

There is a way of thinking and feeling about punishment, not

uncommon in our days, which exhibits a high degree of incon-
sistency. It more or less explicitly accepts the doctrine that
crime (all or some of it) is mere disease .... And, rightly from
this ground, a protest is made against such unwilled defects
being imputed and judged of morally.... Justice is the assign-
ment of benefit and injury according to desert; but this man
is not a moral agent ... surely what follows is that justice is
indifferent to his case. What is just or unjust has surely nothing
to do with our disposal of his destiny.
F. H. BRADLEY (I846-I924)

Must the psychiatrist then unseat the king and actualize in the
realm of fact the 'philosopher-king' of Plato's imagination? ...
if sufficiently secure in his knowledge of himself and of his field,
he may dare where others dared and lost before.
HAROLD LASSWELL (I 902-
Preface

It is nowadays very common to assume, to suggest, or even

to say, that some, or most, or even all, crime against the public
laws, or more private moral defect, or other untowardness in
human behaviour, is a symptom of mental disease. The aims
of the present essay are: first to investigate the meanings and
implications of such claims; second to emphasise what conse-
quently has to be made out if their acceptance is to be war-
ranted; and third to correct a few of the more popular mistakes
encouraging the misconception that psychological inquiries
have already established a much more comprehensive and less
qualified conclusion here than they in fact have- or ever could.
Some of what I have to say might, with appropriate altera-
tions, be applied also to parallel theses representing some or all
delinquencies as symptoms not of mental disease but of social.
Theses of this second sort are collectivist, whereas those with
which we shall be concerned put the emphasis in the first place
upon the individual. It is therefore both interesting and signi-
ficant that in Dostoievsky's Crime and Punishment there appears
to be only one reference to ideas of our first kind. This occurs
in Section 6 of Part I, where Raskolnikov reflects on his convic-
tion that an 'eclipse of reason and loss ofwill-power attacked a
man like some disease, developed gradually, and reached its
climax a short time before the crime was actually committed;
it continued the same way at the moment of the crime and for
a short time afterwards, according to each individual; then it
passed off like any other disease'.
What is much more typical of the advanced notions found
in that book is the conversation reported in Section 5 of Part m
by Raskolnikov's student or ex-student friend Razumikhin:
'It all began with the point of view of the socialists. Their point
of view is well known: crime is a protest against bad and abnor-
mal social conditions and nothing more. No other causes are
admitted. Nothing! ... Environment is the root of all evil- and
X CRIME OR DISEASE r
nothing else! A favourite phrase. And the direct consequence
of it is that if society is organised on normal lines, all crimes will
vanish at once, for there will be nothing to protest against, and
all men will become righteous in the twinkling of an eye.'
Such social theses may of course be combined with those of
the more individualistic kind to be considered here. Thus in
the Preface to The Psychoanalytical Approach to Juvenile Delinquency,
that formidable Freudian Dr Kate Friedlander, after excoriat-
ing what are supposed to be the mere rationalisations of law-
abiding but psychologically unenlightened citizens, tosses off
the remarks: that 'they probably do not know that delinquency
is a disease of society, just as cancer, for instance, is a disease
of the individual'; and that 'in the long run the delinquent him-
self suffers by his anti-social behaviour much more than society'.
Part 1 is intended both to provide historical perspective and
to display the main logical links between the various key
notions. If we are to know where we are in complex terrain we
need above all a sketch-map, showing just the main features
and how these relate to one another.
Part 11 develops the contention that the notion of mental
disease should be approached by way of that of physical dis-
ease -what would once have been called disease, without prefix
or suffix. This simple-minded emphasis happens to be much less
commonplace than we might expect. Although everyone takes
it for granted when exculpation is in question that the asser-
tion· that this is a case of mental disease must license most of
the inferences which would be authorised by a corresponding
claim about physical disease, this crucial and straightforward
assumption seems to be almost universally overlooked when the
time comes to ask what is, or ought to be, meant by 'mental
disease' and 'mental health'.
Part III confronts directly those general deterministic assump-
tions which mislead so many into believing- or into believing
that they ought to believe - some all-embracing conclusion
about all delinquencies being expressions of psychological dis-
order; and hence, because everyone in this context employs the
word 'disorder' to mean something of which the subject is a
victim, as more or less venial - if not actually and strictly
uncontrollable. My own rather pedestrian guiding idea here
is that some truths are so unshakeably certain that in any con-
flict the give must always be on the other side. It is the approach
PREFACE Xl

suggested, in another sphere, by Abraham Lincoln: 'If slavery

is not wrong, nothing is wrong.' 1
When I contributed Evolutionary Ethics to an earlier series
organised by Dr Hudson my hope was to produce the definitive
monograph. I shall by contrast measure any success of the pres-
ent essay mainly by whatever contribution it makes to its own
replacement. In particular, although I am sure that my
approach from the physical paradigms of disease and health
is right, I am equally sure that my realisation of it must be
relevantly defective. A general awareness of fallibility is in this
case reinforced by recognising a particular handicap. For very
little work seems to have been done on the philosophical analysis
of these paradigms. Some may recall a sharp remark made in
Section 28 of the Seventh Dialogue of Berkeley's Alciphron:
'Vice, indolence, faction, and fashion produce minute philoso-
phers, and mere petulancy not a few.' Certainly no one who
has ever attended a conference of professional philosophers can
be in any doubt of the truth of at least the last clause of this
psychological analysis. Yet we should also notice that philo-
sophy is pre-eminently a subject which advances most easily
through the correction and improvement of earlier attempts.
What is to be done is, as the series title promises, philosophi-
cal. Nevertheless, as the series title again promises, this philo-
sophy is not cloistered. Certainly I hope that the present study,
and indeed the whole series, will be found to be of some value
by people whose interests are primarily practical: it was, I
believe, a genuine scandal to philosophy that in the great sweep
of her survey of Social Science and Social Pathology Lady Wootton
should have been able to find only one debt to acknowledge to
a philosopher. 2 This desire to be if possible useful has encour-
aged a fuller and more leisurely exposition than would have
been appropriate in a work for philosophers only: thus Part 1
would have been shorter, and surely duller, had it been
addressed primarily to colleagues. In order to underline both
this relevance and my own practical concern I have quoted from
and referred to criminological literature very lavishly; and I
have accepted the consequence that the notes must be corres-
pondingly lavish.
I have dedicated this book to the memory of my mother-in-
law Ruth Seruya Donnison. It was her enthusiasm for her work
as a justice of the peace in Berkshire, as well as her earlier efforts
xii CRIME OR DISEASE?

to introduce better methods of dealing with young offenders in

Burma, which inspired my own now nearly twenty-year-old
first venture into this field of theory.J
I owe my warm thanks to the departmental secretaries who
put my material into readable typescript: Mrs Rita Lee at
Keele, and Mrs Rhoda Blythe at Calgary. I should also like to
express my obligation to members of the Library staffs at
Keele and Calgary, who helped me in tracking down sources
and verifying references.
ANTONY FLEW
The University of Calgary,
Alberta, Canada
I A Survey of the Logical
Geography
I In an investigation of meaning it is best to begin from the
strongest thesis. For, although some hedged and qualified ver-
sion is more likely to be defensible as true, the understanding of
the meaning of any such weaker thesis presupposes the under-
standing of the meaning of its stronger relative. For example,
although the guarded and cautious 'It looks to me like a B-52'
commits the speaker to less than the categorical and unqualified
'It is a B-52', the former is both semantically more sophisticated
than the latter and logically parasitical upon it. You could not,
that is to say, understand what is meant by 'It looks to me like a
B-52' if you did not already know the meaning of 'It is a B-52'.
A second illustration may help to bring this very fundamental
point out more clearly. This illustration is drawn from Part v
of Descartes' Discourse on the Method: which, in view of the rele-
vance to the criticism of the Cartesian programme of systematic
doubt of the consideration which it illustrates, is apt. Descartes
there has just described the physiological discoveries of Harvey.
He proceeds to suggest: not that the brutes, and the bodies of
human beings, look like, and so might be mistaken for, mach-
ines - for surely they do not, and scarcely could; but rather that
his recommendation is that we should 'think of these as'
machines, 'which, having been made by the hands of God, are
incomparably better arranged and possess in themselves move-
ments more admirable than any of those which can be invented
by men'. Now perhaps Descartes himself did not appreciate
the exact significance of what he wrote here. But certainly -
returning visibly to our muttons - there is a world of difference:
between on the one hand maintaining unreservedly that all
crime is a symptom of some mental disease; and on the other
hand maintaining only that it should be thought of, or regarded,
as such. The second of these two possible claims is, in the senses
2 CRIME OR DISEASE 1

indicated in the previous paragraph, both semantically more

sophisticated than the first, and logically parasitical upon it.
For if I announce that I will, perhaps for certain purposes only,
deem you to be, or regard you as being, married, or a com-
patriot, or a human being, or a mental patient, or what have
you, then I am precisely not saying that you truly are. Rather
I am taking it absolutely for granted that you are truly not.
What otherwise would be the point of my being so graciously
willing to deem the contrary?
It will not do therefore to take as our text anything which
even hints at limitation. Instead we need a perfectly explicit
and completely comprehensive statement. For this purpose it
would be hard to better what was said by Dr J. R. Rees, who
served at various times as Medical Director of the Tavistock
Clinic in London, President of the World Federation for Mental
Health, and Honorary Consulting Psychiatrist to the British
Army. In his Clarke Hall Lecture on Mental Health and the
Offender he insisted: 'It should be stressed that all failure to
comply with the rules of the game, and indeed all anti-social
behaviour, whether it is noticed merely in the nursery or comes
eventually to the courts of the country, is evidence of some
psychological failure in the conduct of life. Crime (behaviour
which is prohibited by the criminal code) is the outward mani-
festation or sign of some disorder in the personality and char-
acter, however that may have been caused.'4
This bold statement can be paired with an even bolder con-
fession from the other side of the Atlantic. Dr Karl Menninger,
one of America's most distinguished psychiatrists, in his book
The Crime of Punishment maintains:

The very word 'justice' irritates scientists. No surgeon ex-

pects to be asked if an operation for cancer is just or not. No
doctor will be reproached on the grounds that the dose of
penicillin he has prescribed is less or more than justice would
stipulate. Behavioral scientists regard it as equally absurd to
invoke the question of justice in deciding what to do with a
woman who cannot resist her propensity to shoplift, or with
a man who cannot resist an impulse to assault somebody.
This sort of behavior has to be controlled; it has to be dis-
couraged; it has to be stopped. This (to the scientist) is a
matter of public safety and amicable coexistence, not of
justice.s
A SURVEY OF THE LOGICAL GEOGRAPHY 3
It is only fair to Dr Rees to add now that, having said what he
has just said categorically and without any qualification, he
forthwith proceeds to deny some of the clear implications of
his own assertion: 'Please do not think that in my mind there
is any feeling that all offenders, such as those who drive too
fast in controlled areas, or those who switch on their fires during
a fuel cut, need to be referred to a psychiatrist or studied by
him.' Notice here also that Dr Menninger too cheats by illus-
trating his most provocative contentions only with examples so
specified as to be uncontroversial: 'a woman who cannot resist
her propensity to shoplift'; and 'a man who cannot resist an
impulse to assault somebody'.
We shall in Part III be considering the significance of this
fact, that even such prophets of psychiatry as Dr Rees and Dr
Menninger seem thus themselves to be unable to live with the
logical consequences of what they take to be the presuppositions
and the implications of their discipline. But our immediate con-
cern is with the Rees thesis itself: 'that all failure to comply with
the rules of the game, and indeed all anti-social behaviour, ...
is evidence of some psychological failure in the conduct of life.
Crime ... is the outward manifestation or sign of some dis-
order in the personality and character, however that may have
been caused.'
*
2 In interpreting any such contention it is necessary to
distinguish, from the beginning: between on the one hand
claims which are supposed to be true as a matter of contingent
fact; and on the other hand claims which are verified as logi-
cally necessary simply and solely by reference to the meanings
of the terms involved. A good stock illustration of this distinc-
tion can be derived from Shakespeare. Mter he has seen his
father's ghost Hamlet pretends to reveal a secret to Horatio
and Marcellus (Act I, Sc. 5):
There's ne'er a villain living in all Denmark
But he's an arrant knave.
Horatio replies:
There needs no ghost, my lord, come from the grave
To tell us this.
The reason why Hamlet's 'relevation' is no relevation at all is
4 CRIME OR DI.SEASE l

that what he is saying is logically necessary. It could be known

to be true by anyone knowing the meaning of the sentence in
which it is expressed, and anyone venturing to contradict him
would thereby involve himself in self-contradiction.
Suppose instead that Shakespeare - defying simultaneously
the demands of both drama and metre - had made Hamlet
maintain that all Danish villains were the products of broken
homes. This anachronistic contention would have been a logi-
cally contingent proposition. If anyone were to contradict it
he would not thereby and necessarily involve himself in self-
contradiction. To know whether it was true or false it would not
be sufficient to appreciate only what it meant. Some reference
would have to be made to sociological studies of the home back-
grounds of Danish villains.
In this stock, imaginary illustration the logically necessary
proposition is analytic, tautological and trifling. But other,
actual examples are both relevant and far from trifling. For
instance: while suicide was still under English law a crime it
seems to have become a convention for coroners' courts- despite
sometimes the clearest evidence to the contrary - to insist that,
if someone suicided, then he must have been at the moment
when he did the deed of unsound or disordered mind. By such
insistence suicide became in effect a criterion for mental dis-
order. The mere fact that he did suicide was construed as a
sufficient condition of his having been, at least temporarily,
of unsound mind. In this interpretation to say that at the time
of his suicide the balance of his mind was disturbed must be a
tautology. But the object of the exercise was to justify a verdict
in which the same form of words would be quite differently
interpreted. For while the law remained what it then was a
verdict without this saving rider involved both legal and other
consequences which to their credit all concerned wished to
avoid - even at the cost of a measure of what privately within
the legal profession was dubbed 'pious perjury'.
The same logical points are illustrated in a complementary
but more Inischievous example, drawn from Joseph Heller's
novel Catch-22 (chapter 5):
'Sure there's a catch,' Doc Daneeka replied, 'Catch-22. Any-
one who wants to get out of combat duty isn't really crazy.'
There was only one catch and that was Catch-22, which
specified that a concern for one's own safety in the face of
A SURVEY OF THE LOGICAL GEOGRAPHY 5
dangers that were real and immediate was the process of a
rational mind. Orr was crazy and could be grounded. All
he had to do was to ask; and as soon as he did, he would no
longer be crazy and would have to fly more missions . . . .
Yossarian was moved very deeply by the absolute simplicity
of this clause . . . . 'That's some catch, that Catch-22,' he
observed. 'It's the best there is,' Doc Daneeka agreed.

*
3 Given the distinction made in the previous section it be-
comes clear that the Rees thesis could be taken in two differ-
ent ways. What is surely the intended interpretation is that all
the various forms of delinquency mentioned are, as a matter of
contingent fact, manifestations of mental disorder; where the
criteria determining what is or is not a crime, or whatever, are
entirely independent of the criteria determining whether a per-
son is or is not mentally disordered. Alternatively the thesis
might - although this is here a most implausible construction -
be read as a covert confession that for Rees the occurrence of
any sort of delinquent behaviour is a criterion for psychological
derangement; and hence that, for Rees, any claim that any
offender, against whatever standard, was of unsound mind
would be sufficiently and very easily justified as tautological.
Begin with the former interpretation. This procedure is the
more fitting since such boldly comprehensive contentions are
typically first urged as unequivocally contingent. It is only
when their forward positions have been overwhelmed by objec-
tions that the too resolute defenders withdraw to citadels made
tautologically impregnable. Speaking literally, this is what
would have happened if someone who had started by asserting,
in a straightforward sense, that only madmen kill theiUSelves;
had then been forced by opposition to recognise many cases in
which men, who were surely in that ordinary interpretation
sane, have suicided as the result of coolly rational deliberation;
and had then reacted, not by frankly admitting his error, but
by maintaining instead that anyone who kills himself must be,
by that very token, mad. The danger of such a reaction is of
course that the stubborn defender, and perhaps others also, will
assume that he has by this manreuvre successfully maintained
his original position; and that then, equivocating between
6 CRIME OR DISEASE?

two radically different interpretations of the same form of

words, they will all take it that a tailor-made tautology licenses
the inference which would indeed be warranted had he really
established his first contention.
Rees asserts: 'Crime (behaviour which is prohibited by the
criminal code) is the outward manifestation of some disorder in
the personality and character.... 'By providing that parenthe-
tic definition Rees himself, helpfully although no doubt unwit-
tingly, draws attention to something which makes this particular
part of his thesis peculiarly implausible. Because crime is thus,
by definition, a function of a legal system, what sorts of behav-
iour count as criminal is something which can, and in fact does,
vary as between one system and another; and also, within the
same system, from one time to another.6 Some systems, such
as those now of Britain and the United States, outlaw racial
discrimination; whereas others, such as, most notoriously if not
uniquely, that of South Mrica, require it. Is it then a sign of
psychological disorder to do in one country what it must by the
same token be an indication of mental disease not to do in
another?
The same applies with regard to temporal variations. Just
possibly it might be conceded that, by liberalising previous
criminal laws against male homosexual practices and abortion,
the British Parliaments of 1964-1970 removed certain expres-
sions of personality failure from the cognizance of the law; and
certainly to say that all crimes are expressions of such failures is
not to say that all such expressions are always crimes. But then
it is surely almost impossible to believe that the creation of new
economic offences by those and earlier Parliaments as steps
towards the total Socialist goal of the Labour Party had the
effect of uncovering other mental disorders formerly unrecog-
nised.
Once the significance of this definitional point that crime is
necessarily a function of a legal system is appreciated, it appears
that the thesis that all crimes are as a matter of contingent fact
symptoms of mental disease can be made credible in only two
ways. It might be defended after the fashion described in the
second paragraph of the present Section 3, by confounding it
with a verbally similar non-contingent assertion. Alternatively
it might be maintained in the contingent interpretation by
appealing to further, supporting implausibilities. These in turn
A SURVEY OF THE LOGICAL GEOGRAPHY 7
could also be of two kinds. In the first case the appeal would
have to be to the altogether unbelievable contention that all
offenders commit their offences precisely because these have
been proscribed; while in the second case the assumption would
be that all offences share some further characteristic, only con-
tingently related to the fact that they happen to have been by
some particular system forbidden. If all offenders in fact were
as the first contention would maintain, or if that further char-
acteristic were to be that of being madly imprudent, then per-
haps we might proceed hopefully to suggest that offending
does always happen to be a manifestation of some psychological
disorder.
Consider, in illustration of the meaning of the first of these
two alternatives, an exchange which occurred some years ago
in a widely syndicated American women's page advice column.
A correspondent wrote in to complain that her husband 'likes
to break rules .... If there is a sign that says "No Smoking",
he lights up at once. "Keep off the Grass" is an invitation. I
have seen him step right over and stomp on the newly seeded
lawn just for the devil of it.... Please tell me why he is like this,
and what I can do about it.' She signs herself'Married to a Nut'.
She gets from the columnist Ann Landers the response: 'The
"Nut" has emotional problems which go back many years ....
He needs professional help.'7
It is doubtful whether anyone has ever believed that all or
most crime is committed by this particular special sort of person.
But the illusionary idea of a criminal type did once have famous
protagonists, and it remains an idea which must in some form
be required by anyone so misguided as to hope for a general
theory of crime. Both the illusion and the aspiration are encour-
aged by the practice - common among both criminologists and
the laity - of covertly and for no reason given discounting from
consideration all those crimes which we ordinary law-abiding
citizens might ourselves expect ever to commit. For by thus
not attending to driving and parking offences, or to minor tax
evasions, or to small thefts euphemistically called something
else, crime is made to seem something which could only be
committed by someone very unlike us. This practice of tacitly
discounting certain categories of crime, and with it the sugges-
tion that the criminal is a different sort of animal from ourselves,
must sometimes have helped to support unsympathetic attitudes
 8 CRIME OR DISEASE r
towards (real) criminals and an inhumane treatment of them.
But it may also lead us to forget relevant but untrendy truths.
We may for instance by attending too closely to that factitiously
strange animal the (real) criminal, overlook, what from our own
experience of traffic controls we all know about, how sometimes
behaviour may be improved and bad habits broken by the
efficient enforcement of laws prescribing disagreeable penalties
for (criminal) offences.
The aspiration towards some general theory of crime; and
consequently the illusion, are also to some extent encouraged
by the mere existence of a field of study called criminology.
For if there are departments operating in our universities, then
there must of course be some corresponding subject-matter;
and wherever there is a recognised subject-matter- the argu-
ment might go on - there must be room for some comprehensive
general theory. But criminology is not that sort of field at all.
It is conspicuously not, that is to say, like biology or some
branch thereof. It can be salutary to insist, as indeed we have
just in a way been reminding ourselves, that the subject-matter
of the criminologist is entirely artificial. People do not - usually
- commit offences precisely because they are offences, and what
· sorts of conduct are criminal is determined by what the partic-
uhir system happens to proscribe. If you choose to study earth-
worms, then you have every reason to expect that your subjects
will have a great deal in common besides whatever it is which
makes them count as earthworms. But if you set up as a crim-
inologist you will be surprisingly fortunate if you discover any
universal truths about crime and criminals save those which
follow necessarily from the initial definitions.
From a subject-matter so essentially artificial only the most
limited and qualified discoveries ought to be expected, although
these may be for all that both useful and disturbing. Crimin-
ology should thus perhaps be seen as a sort of miscellany of
Home Office studies. Indeed the usual tacit discountings
become in this context perfectly intelligible. For ,everyone can
see that traffic offences are really part of the province of the
Ministry of Transport; while pilfering from the office or the
works belongs, if it belongs to any ministry, to the Department
of Trade and Industry. It is finally just worth asking oneself
why no one thinks to investigate the causes and the cure of tort;
and why, if there are any university departments devoted to
A SURVEY OF THE LOGICAL GEOGRAPHY 9
tautology, it is tautology in a different sense, and with a differ-
ent spelling.
*
4 The second of the two suggested ways in which the Rees
thesis, in its contingent interpretation, might be defended was
by urging 'that all offences share some further characteristic,
only contingently related to the fact that they happen to have
been by some particular system forbidden'; in particular, the
characteristic of 'being madly imprudent'. The assumption
that this is indeed so has an almost proverbial status. It is said
that crime does not pay, or that honesty is the best (paying)
policy. If any such claims were both true and visibly true one
might, I suppose, maintain that all crime, or all dishonesty, or
even all immorality in general, are so clearly and so crazily
imprudent that criminal or dishonest or immoral actions can
only be explained by reference to the agent's psychological
disorder.
Certainly there actually are cases in which criminal behav-
iour does seem to be to a bizarre degree imprudent;just as there
are, as we have just seen, real cases in which people perversely
do things precisely and only because these things happen to be
forbidden. Certainly too it is a mistake, often made by cynics
and especially by the more brutal and corrupt sort of politician,
to think that honesty never pays, or that what is the least hon-
ourable course is always politically the most advantageous.
Take crime first. In the large sample which is the basis of his
well-known study Deliquenry and Human .Nature, Dr D. H. Stott
does find several such bizarre cases. But he proceeds - fortified,
as I hope to show in Part 111, by a misguiding philosophical
doctrine - to write as if the rule were what an independent
re-examination of his own recorded data will readily show to
be the exception.
This disparity between conclusions and evidence is sharply
pointed in a sentence which begins: 'The offender is so patently
acting against his own interests.' This unqualified general con-
tention is then supported, immediately after a semi-colon, by
cautiously limited and thus inadequate claim: 'sometimes he
does not even take the same precautions he would in crossing
a road, even the most intelligent committing offences in a way
which invites attention'. Later Stott repeats the unqualified
IO CRIME OR DISEASE<

general contention: 'Delinquency manifestly does not pay,

persistence therein means, by ordinary standards, personal dis-
aster apparently preferable to continuance in the existing
situation.' Without some general assumption of this kind Stott
could scarcely reach the equally unqualified final verdict: that
'delinquent breakdown is an escape from an emotional situa-
tion which, for the particular individual with the various con-
ditionings of his background, becomes at least temporarily
unbearable'. s
The short way to show the falsity of any universal and un-
qualified claim that crime, or delinquency, does not pay, is
to refer again to variations between different times and differ-
ent places. In a well-ordered society the rates of detection and
conviction, and the relations between the penalties for and
the attractions of whatever conduct is actually proscribed as
criminal, may be such as to bring this saw as near to the truth
as proverbial wisdom ever gets. Indeed that, as applied to a
particular society, it should, is the most important traditional
criterion for allowing that that society is well-ordered.
However all societies are not in this respect well-ordered: as
a glance at the recent criminal statistics of for example either
the United States, or Britain or Canada, will quickly confirm.
So it cannot be universally true that on this account crime does
not pay; much less that to commit an offence must always be
a mark of ostensibly inexplicable imprudence; and much less
still, as we shall be seeing in Part n, that extremes of either
imprudence or eccentricity of motivation must in themselves
negative accountability. And furthermore and finally, even if
this premise in Stott's argument were fully supported by his own
particular collection of data, we should still need to remind
ourselves that, in anything less than a perfectly well-ordered
society, the samples used in all such studies of convicted delin-
quents must be very relevantly unrepresentative. They cannot,
that is to say, include the ones who got away. 9

*
5 Consider next the parallel contention applying primarily
not to crime but to immorality. Here we have not just a frag-
ment of anonymous conventional wisdom but a thesis presented
and defended by the most ancient and respectable authority.
A SURVEY OF THE LOGICAL GEOGRAPHY II

For a version of this is dramatically the main proposition which

Plato's Socrates undertakes to prove in The Republic. Three facts
about the development of his argument are significant for us.
First, it all relates to a perhaps authentically Socratic, and
certainly characteristically Platonic, contention; the thesis
customarily rendered 'No one willingly does wrong'. Second it
involves what is, I believe, the earliest recorded attempt to
show that vice is the expression of a kind of disease of the soul.
Third it leads on to the surely originally Platonic demand for
all power to a new class of experts, the elite order of Guardians,
his true Philosopher Kings.
The Republic is supposed to be about justice, a sufficiently
comprehensive virtue. The dialogue starts gently. But it comes
vehemently alive with the intervention about half-way through
Book 1 of the harsh debunker Thrasymachus. He maintains:
that justice is not to the advantage of the just man himself, but
to that of other people; that it is not a good for him, but for
someone else; that it is - in the Greek words - not an oikeion
[oiKdov] but an allotrion agathon [d.M6rpwv aya86v]. (§3430) In a
typical excess of cynicism Thrasymachus apparently takes
it that this is so not merely often but always. Socrates in an
equally typical excess of the opposite adopts the contrary
position: 'I do not believe that injustice is more profitable
than justice, not even if one leaves it free and does not hinder
it from doing what it wants.' (§345A) In the rest of Book 1
Thrasymachus is put down. Then at the beginning of Book 11
Glaucon and Adeimantus return to the charge. The whole of
the rest of The Republic is presented as the response of Socrates
to this challenge.
It is here neither possible nor, fortunately, necessary to come
to terms with this response fully and in detail. Our concern is
only with the connections, some of which have been hinted
already, between this thesis and the contentions that all crime,
or all immorality or even all delinquency of whatever kind are
expressions of mental disease. Thrasymachus plunges into the
dialogue with what is presumably intended to be a definition of
the word 'justice':" 'Listen then," he said, "for I say that justice
is nothing else but the advantage of the stronger".' (S338c) 10
We need to appreciate, as Plato's Socrates never did, that and
why any such definition is and must be not merely wrong but
diametrically wrong. It is wrong because to say that some
I2 CRIME OR DISEASE 1

institution, or some course of conduct, is just is just not to say

that it is in the interest of the stronger party, or of the weaker
party, or of any other particular party; although of course on
almost any given occasion what happens to be just will happen
to be more or less in the interest of one or other party, or even
sometimes of all parties individually. But just as it is always a
further question to ask of what is allowed to have been pre-
scribed by any authority whatever, 'Yes, but is it just and
right?'; so it is always a further question to ask, 'Yes, but is it
just and right?' of what is agreed to be in the interests of some
particular party. I I
Worse still for any definition on Thrasymachean lines, the
whole point of an appeal to justice is precisely that it should
in this way be an appeal to some standard logically independent
of the interests of all particular contending parties. It would
be one thing for a Thrasymachus to snarl that there is no justice
if by this he meant that in some sense there is no such standard,
or that in a wicked world justice is never or very seldom done.
But it is quite another thing and, as has just been shown, dia-
metrically wrong to assert that the word 'just' means the same
as the the expression 'advantageous to the stronger party'.
When the debunker says that what bad, powerful men really
mean when they claim that something is just, is just that it is
in their interests, what he really means is: not that this is either
what they mean nor yet the meaning of what they are saying;
but rather that this is what they would say if they were more
honest and less hypocritical. If the definition of Thrasymachus
were correct then there would be no hypocrisy here to unmask,
and no bunk to be debunked.

*
6 To show that 'justice' cannot be defined in terms of the
interests of any particular group or individual is not at all to
preclude the possibility of some non-contingent connection
between justice and the collective general interest. It is if any-
thing to suggest the contrary. Conversely if you want to show
that justice is in the interests of each person and every party
individually it is not a bit of use to show that it is in the general
interests of the whole. For it is precisely the apparent lack of
correspondence between particular individual and wider col-
A SURVEY OF THE LOGICAL GEOGRAPHY

lective interests which first raised the pressing question whether

to me individually it always is advantageous to act justly. The
interlocutors of the Socrates of The Republic were therefore
completely misguided when they accepted his insidiously per-
suasive methodological suggestion that they should inquire into
the nature of justice by examining it first, writ large as it were,
in an ideally just state: ' "So, if you agree, let us investigate its
nature first in states, and only after this look at it in the indivi-
dual too, searching for the likeness of the greater in the form of
the less".' (§369A)
This method is relevantly unsound in two different ways.
First it must be wrong, for the definitional reason indicated
in Section 4 earlier, to look only to an ideally well-ordered
society for your evidence to settle a question about the universal
effects of just conduct upon the agent. For, once again, this
sample is necessarily in a crucial way unrepresentative. That
and why this is so Plato's Socrates fully appreciates. Indeed in
his own way he stresses it: '"That city, then is best ordered,
isn't it, in which most people apply the terms 'mine' and 'not
mine' to the same objects?".' (§462c)
What he apparently does not appreciate is the implication
for his argument of the consequent unrepresentativeness. This
failure is only one example of a systematic refusal throughout
the whole dialogue adequately to distinguish contentions about
what is the case from those about what ought to be. It can be
no sort of reply to hard-bitten Thrasymachean assertions about
how in this wicked world things actually are, to direct our
attention to how, if we lived in an ideal world laid up in heaven.
they would be. But of course Plato would not be Plato if he did
not also have other arguments with which to try to show that
these things must, perhaps in some profounder sense, stand
here and now as they would stand there and then.
Second the method proposed must be wrong because it con-
centrates on the collective, whereas what is chiefly in dispute is
whether what very well may hold- what does perhaps even
hold necessarily- of the collective does also hold of the indivi-
dual. The force of this objection can be brought out by referring
back to an argument put by Socrates in Book I much earlier.
Socrates there asks Thrasymachus: ' "Would you think that a
state, or an army, or a gang of thieves, or bandits, or any other
group, which attempts to carry out unjust actions collectively
 CRIME OR DISEASE?

would be able to accomplish anything if they treated one

another unjustly?".' (§35 I) Obviously not, it is agreed. Taking
a modern illustration, one might ask rhetorically whether
Germany could have begun to be the global menace which it
was had it not been for the integrity and devotion of its Prussian-
trained civil service, the soldierly virtues and above all the
readiness for sacrifice of the members of its armed forces.
Socrates draws the moral that injustice is essentially disrup-
tive, and must tend to make any group in which it is prevalent
ineffective to achieve any common purpose: ' "Is it not, there-
fore, apparent that its force is such, wherever it is found,
whether in a state or in a family or in an army or whatever
else, as to render it incapable through conflict and faction of
internal co-operation ... ? Isn't that so?".' (§§351E-352A) The
final move in this argument is a quick, fatal step from the
collective to the individual: ' "And in the individual too, I
imagine, it will produce all these effects which it is its nature to
produce. It will in the first place make him through his internal
conflict and disintegration incapable of action, and then an
enemy to himself and to the just. Is it not so?".' (§352A)
To this startling conclusion Plato scripts the now chastened
Thrasymachus to reply meekly, 'Yes.' No doubt the premises
upon which Socrates relies here, though embodying an impor-
tant truth, require much qualification. But our present concern
is not with the truth of either premises or conclusion. Rather it
is to underline the point that it cannot be sound in any such
disputed case to argue, from what may or may not be true
premises about the group, directly to conclusions about the
individual. That that Prussian integrity and devotion, that
soldierly virtue and readiness for sacrifice, made for formidable
German military power, has no tendency to show that these
qualities were always advantageous to those who displayed
them. In what, had that been so, one might again ask rhetori-
cally, would their actual sacrifices then have consisted?

*
7 Now neither justice, nor what is meant by the original
Greek word, is the whole of virtue. But they certainly are parts,
and large parts. Equally certainly to show that there is no
necessary connection between an action's being just and its
A SURVEY OF THE LOGICAL GEOGRAPHY

being in the interests of the man who performs it, is not to show
that there is not a contingent coincidence between justice and
individual self-interest. Rather, the relevance of the last four
paragraphs of the previous Section 6 is that they suggest that,
if there really is any such universal coincidence, this contingent
coincidence must be regarded as a providential fact. Yetthatthere
is, is implied by claims that all delinquencies, or at any rate all
delinquencies which constitute defections from duty, are expres-
sions of mental disease. For to be in anyway diseased must surely
be in itself, and apart from any offsetting special circumstances;
against any interests. It ought to strike us as a very remarkable
piece of prevenient adaptation of human nature to society if
all defections from the requirements of the common good hap-
pen also to be against the individual interests of the defector.
Once this providential assumption is clearly revealed as such,
and squarely faced, it appears to go against much of our imme-
diate experience. It is hard to understand how we could have
come to develop, and frequently to contrast, the two separate
concepts of morality and of prudence had not their apparent
dictates been often in conflict. The existence too of penal
institutions is a poor advertisement for either the visibility or
the completeness of the correlation assumed. For where, in
those many cases where what is criminal is also immoral, would
be the need for legally proscribing the offence, and trying to
catch the offender and to penalise him artificially, if it were
obvious that he was in any case going to suffer some sufficient
natural penalty? Again where would be the urgency of delineat-
ing formidable corrective schemes in a postulated future life
if to do justice always is, and can be shown to be, in the this-
worldly interests of all concerned? There is no need to call in a
new world to redress the balance of the old except in so far as
that balance is, or at least seems to be, upset.
So if the providential assumption is to be found to be correct,
it will be by showing to our surprise that the real situation is
radically different from the apparent. One way to do this would
be by establishing the Rees thesis. For this presupposes, and
hence also entails, the providential assumption. An elegant
way to bring out that these logical relations do obtain is to work
with Plato. For it was precisely in order to establish what I have
been labelling the providential assumption that Plato developed
his case for a version of the Rees thesis.
I6 CRIME OR DISEASE?

What follows from such a claim that delinquency is an expres-

sion of mental disease all depends, or all partly depends, on
what you mean by 'mental disease'. Equally certainly the word
'disease', and nowadays the expression 'mental disease', may
be employed to carry very little meaning. Sometimes to say
'It's a disease' or 'It's a mental disease' amounts to little more
than a verbal shrug of disapproval. Yet even in such minimal
cases the choice of these words is bound to carry nuances
different from those of saying either, moralistically, 'This is a
wicked affair' or, more non-committally, 'This is a bad busi-
ness'. Sometimes again, there is just a little more to it than
that, although only a little. The writer on the Worthies of War-
wickshire cited in Sir James Murray's Oxford English Dictionary
deploring that 'Bad Latin was a catching disease in that age'
was, we may assume, employing the expression 'catching
disease' to make three lighthearted points. First this bad Latin
is a bad show. Second the habits involved are communicated
to others by close contacts with those in whom such lamentable
habits are already established. Third this at its own level con-
stitutes a crisis situation.
But these are derivative - not to say degenerate - uses. They
can be appreciated only on the basis of an understanding of
the full and primary meaning. They have to be mentioned in
passing because they are there; and to emphasise by contrast
that our concern is with that richer significance, in which the
application of the term carries implications which matter.
When Plato contends that vice is a sort of psychological disease
he is not just uttering a verbal shudder. Nor is he latching on to
a merely peripheral similarity between vices and physical
diseases - like the fact that both may sometimes be spread by
close contacts. He is, rather, insisting that there are crucial
and central similarities. That is what gives profundity to his
contention, and what makes it perennially challenging and
important. His case is quite opposite to that in which Shake-
speare's Falstaff confesses to disease only to confess that he was
not diseased. There the Lord Chief Justice says:' "I think you
are fallen into the disease; for you hear not what I say to
you".' Falstaff replies: ' "Very well, my lord, very well: rather,
and it please you, it is the disease of not listening, the malady of
not marking, that I am troubled withal".' (Henry IV, Part 11,
Act I, Sc. 2.)
A SURVEY OF THE LOGICAL GEOGRAPHY I7
The same holds true of other spokesmen for the ideas of
mental health and mental illness, including many who would
give short shrift to the Rees thesis. It was to what he believed
to be central and fundamental similarities that Philippe Pinel
appealed when he maintained, in words quoted among the
mottoes of this essay: 'The mentally ill, far from being guilty
persons who merit punishment, are sick people whose miserable
state deserves all the consideration due to suffering humanity.'
The British Royal Commission on the Law Relating to Mental
Illness and Mental Deficiency (reporting in I 95 7) were in the
same tradition when with satisfaction they asserted: 'The
general public now know more about mental illness and are
more sympathetic to people suffering from it than ever before.' 12
Both passages emphasise two fundamental resemblances be-
tween disease, in the primary physical sense, and what is to
be called mental disease: that in both cases something is wrong
with the patient which is bad for him; and that the patient, as
is appropriately suggested by that choice of word, is with re-
spect to this something victim rather than agent. The same
emphases are prominent in the conclusions of Plato's Socrates.
To appreciate what is going on it is necessary to notice certain
difficulties of translation. The Greek word which always is and
can scarcely not be translated as 'soul' is psyche (tftvx~) ; from
which English gets the 'psych' part of such words as 'psychiatry',
'psychoanalysis', 'psychosomatic' and 'psychological'. It is thus
etymologically apt when Plato writes about an illness or dis-
order of this tftux~ for us to render him as discussing psycho-
logical disease. This is indeed, I think, as near as contemporary
English can get to the flavour of the original Greek. For the
word 'soul' - like for instance the word 'vouchsafe' - has now
acquired peculiarly clerical associations; and these seem to
have the effect of neutralising the strongly medical implications
of the word 'disease'. Perhaps this is why Plato has not until
very recently been recognised as the first parent of the Rees
thesis.
*
8 Having, he thinks, established that an ideally just state
would be an hierarchical structure of three classes or castes,
and that its justice would consist in everyone's sticking to his
own job and his own proper place in the hierarchy, Plato's
 CRIME OR DISEASE?

Socrates develops a parallel consideration of justice in the indi-

vidual - justice writ small, as it were. He argues that every
individual soul is also constituted of three elements, correspond-
ing to the three classes or castes of The Republic. His immediate
conclusion is that justice in the individual is for each of these
elements to do its own job, to fulfil its proper function in the
psychological hierarchy: 'We must remember, then, that each
of us too in whom each of his internal elements does its own
work will be a just man and one doing his own job.' (§44m-E)
It is after this that he develops and presses the analogy
between the health of the body and the health of the soul. The
first emphasis is on the fulfilment of natural functions, and also
on harmonious integration and co-ordination; two further
features which he takes to be essential to health, but which
have not so far been mentioned in our discussion. The conten-
tion is that justice and injustice 'are in the soul what health
and disease are in the body; there is no difference'. For 'to
produce health is to establish the elements in the soul in the
natural relations of domination and subjection, while to cause
disease is to bring it about that one rules or is ruled by another
contrary to nature'. (§444c-n)
There are two points to be made here. First it is no accident
that Plato's phrasing here suggests that, typically, both sorts of
health are produced by the controlling activity of someone else.
It is one of the basic and distinctive ideas of The Republic that
all power should be given to specially trained experts. They
alone can secure both health in the state, and health and justice
in the souls of its citizens; and to the treatments of these new
experts, qualified by their recondite knowledge of the Platonic
Forms or Ideas, we should surrender ourselves as absolutely
as patients to a trusted doctor. Although this suggestion that
the proper response is treatment by a qualified expert could
scarcely be said to be part of the meaning of the word 'disease',
it certainly is one which those who press the analogy between
two sorts of health always want to make. Thus for instance the
very first sentence of the I957 Report of the Royal Commission
aforementioned reads : 'Disorders of the mind are illnesses which
need medical treatment.' It is again this same initially innocu-
ous suggestion to which the political scientist H. D. Lasswell
gives a fully Platonic development in a remarkable contribution
to Psychiatry for I 938: 'Must the psychiatrist, then, unseat the
A SURVEY OF THE LOGICAL GEOGRAPHY I9

king and actualize in the realm of fact the "philosopher-king"

of Plato's imagination? ... if sufficiently secure in his know-
ledge of himself and his field, he may dare where others dared
and lost before.' 13
If the phrases 'it is no accident that' and 'all power to' call
to mind Soviet political commentators and Leninist slogans,
that is fitting. For Russell was entirely right when he remarked,
after returning from a private tour of Lenin's Russia in I920,
in his middle and less Communist-inclined years: 'Far closer
than any actual historical parallel is the parallel of Plato's
Republic.' 14 The treatments which his Guardian doctors might
need to employ could be similarly drastic. No one could com-
plain that for Plato the thesis that all delinquency is an expres-
sion of psychological disease constituted 'A Mollycoddler's
Charter'. For he, like F. H. Bradley in the last century, con-
strued his bio-medical analogies as a Guardian's licence to prac-
tise 'social surgery'. 15
The second and more fundamental point is that Plato's
soul, though essentially incorporeal, was also supposed to be a
substance; something, that is, which could significantly be said
to exist separately. Whereas for us to say that someone has a
third-rate, or a convoluted or an incisive mind is simply to say
in a different idiom something about his qualities and inclina-
tions; for Plato the soul, being a substance, must be more like
the lost bone than the lost temper of the dog in chapter IX of
Through the Looking-Glass. While the doctor attends the body,
the soul-doctor attends the not-body. But Plato also identifies
the (more or less) rational agent with the soul: we are our souls.
So whatever can be said to be wrong in a person, as a person,
can now easily be thought of as a disorder of a not-organ; and
hence, obviously, as a medical matter. 16
Having arrived by such routes at the position that unjust
conduct must be a manifestation of psychological disorder,
Plato is easily able to show that his desired conclusion consti-
tutes a corollary. His Socrates says: ' "And now at last, it seems,
it remains for us to inquire whether it is profitable to do justice
and to engage in splendid activities and to be a just man,
regardless of whether one is known to be such or not; or whether
it is profitable to do injustice and to be unjust, always providing
that you escape punishment and are not improved by chastise-
ment".'
20 CRIME OR DISEASE r
The answer for anyone who has both understood and ac-
cepted what has gone before, is obvious. So the final move can
be given to Glaucon; who has, I am afraid, by now become
the most ventriloqual of what are in less elevated contexts
called feed-men: ' "But, Socrates, it seems to me that our
inquiry now becomes ridiculous. Are we- while it is admitted
that with a ruined bodily constitution, even when you have got
all the food and drink in the world and all the wealth and power,
life is not worth living- are we going to ask whether, even when
you can do whatever you like except what will release you from
corruption and injustice and possess you of justice and excel-
lence, life will be worth living with the very nature of that by
which we live disordered and corrupted? For the two things
have been shown to be as we have described them."' (§445A-B)

*
9 But they are not. For though the patient with a ruined
physical constitution can be expected at least to be tempted to
feel that his life is on that account not worth living, the same
is surely not true of the parallel case of the morally corrupt
agent. No doubt he ought to feel that his moral corruption
makes his life not worth living. But to say this is a very different
thing from saying that he actually and always in fact does.
Indeed if he did he would presumably be beginning to take
some first steps upon the uphill path of his own reformation.
But that case, though it does occur, is unhappily not the only
case.
Since the conclusion is false we have to ask what went wrong
to get us there. The answer clearly is that the source of the
trouble was the equation of the doing of injustice with the
suffering of a psychological disease. For if unjust behaviour
really were symptomatic of psychological disease, in as near as
makes no matter the same sense of 'disease' as that in which
diphtheria and pneumonia are said to be diseases, then the
unjust man would be with respect to his unjust behaviour not
an agent but a victim. Which seems to involve two things.
First his disease - including its natural but not its artificial
consequences - must be not just generally in some way a bad
thing but particularly and in itself for him and in his eyes a
bad thing. Second although it may be partly or wholly a con-
A SURVEY OF THE LOGICAL GEOGRAPHY 21

sequence of his own actions it must not be something which

he is now able to escape immediately and at will.
This offers a welcome occasion to refer to Samuel Butler's
famous fantasy Erewhon. The points can be brought out very
clearly in considering his account in chapter 10 of Erewhonian
'Current Opinions'. For
in that country if a man falls into ill health, or catches any
disorder, or fails bodily in any way before he is seventy years
old, he is tried before a jury of his countrymen, and if con-
victed is held up to public scorn and sentenced more or less
severely as the case may be ... But if a man forges a cheque,
or sets his house on fire, or robs with violence from the person,
or does any other such things as are criminal in our own
country, he is either taken to a hospital and most carefully
tended at the public expense, or, if he is in good circum-
stances, he lets it be known to all his friends that he is suffer-
ing from a severe fit of immorality, just as we do when we
are ill, and they come to visit him with great solicitude, and
inquire with interest how it all came about, what symptoms
first showed themselves, and so forth. . . .
Butler presents his paradox well. It need be no surprise that
among his admirers was the young George Bernard Shaw.
Crime and immorality among the Erewhonians, Butler goes
on, are therefore dealt with by 'a class of men trained in soul-
craft, whom they call straighteners, as nearly as I can translate
a word, which literally means "one who bends back the
crooked". These men practise much as medical men in
England .... They are treated with the same unreserve, .and
obeyed as readily, as our own doctors - that is to say on the
whole sufficiently - because people know that it is to their
interest to get well as soon as they can, and that they will not
be scouted as they would be if their bodies were out of order,
even though they may have to undergo a very painful course
of treatment.'
The second and definitive edition of Erewhon was first pub-
lished in 1901. It is therefore a remarkable example of life
imitating art that in 1924 the American Orthopsychiatric
Association was founded with the object of bringing together
'representatives of the neuropsychiatric or medical view of
crime'. (Our English 'ortho' comes from a Greek root meaning
straight.) But the point which has to be made here is that the
22 CRIME OR DISEASE?

complet~ reversal presented by Butler is not intelligible. There

is of course no difficulty about the idea that people might be
criminally arraigned for falling sick. The suggestion is only
morally, not logically, scandalous. Indeed in English criminal
law 'there are now offences (known as offences of "strict
liability") where it is not necessary for conviction to show that
the accused either intentionally did what the law forbids or
could have avoided doing it by use of care; selling liquor to
an intoxicated person, possessing an altered passport, selling
adulterated milk are examples ... .'r7
Nor further is it at all unintelligible that 'if a man forges a
cheque, or sets his house on fire, or robs with violence from the
person, or does any other such things as are criminal in our
own country' he might be 'taken to a hospital and most care-
fully tended at the public expense'. Nor again should it even
be surprising that some of the treatments administered in such
institutions might be more beastly and more obnoxious to those
who suffer them than most penalties now legally inflicted in
most prisons. It is after all partly, although - as I shall urge
later- not mainly, because a day in the Serbsky Institute for
Forensic Psychiatry can be even more awful than A Day in the
Life of Ivan Denisovitch that the KGB has developed the practice
of incarcerating intractable dissidents in such 'mental hospitals'.
Even in the United States there is on the record a statement,
from one who had also served terms in the prisons of Florida,
Georgia, Virginia and Maryland, that he would prefer a year
in any one of these - not excluding the chain-gangs - to six
months in St Elizabeth's Hospital in the District ofColumbia.rs
What is perhaps a little, if only a little, more surprising in
Butler is the failure of either nerve or imagination manifested
in listing among the Erewhonian orthopsychiatric treatments
only traditionally penal measures - 'close confinement for
weeks .... a flogging once a week, and a diet of bread and water
for two or three months together'.
The actual incoherence in Butler's account constitutes a
dramatic weakness. It is of a kind which might be expected
to attract the attention of even the most purely literary critic. 1 9
The incoherence is that Butler does not suggest, and surely
could not have suggested, any intelligible motivation to account
for the behaviour of Erewhonians who put themselves into the
hands of their straighteners when their offences have not been,
A SURVEY OF THE LOGICAL GEOGRAPHY

and are not perhaps likely to be, detected. Take Mr Nosnibor,

the stockbroker, who had been sailing rather close to the wind:
'He had unfortunately made light of it and pooh-poohed the
ailment, until circumstances eventually presented themselves
which enabled him to cheat upon a very considerable scale ...
he seized the opportunity, and became aware, when it was too
late, that he must be seriously out of order.'
Certainly cheating is a bad business - if not always perhaps
bad business. Certainly there is something wrong with a cheat,
at least in the sense that he ought to be other than he is. But
this gives us still no reason why Mr Nosnibor should have come
to see his cheating as bad for him, and be acting accordingly
by sending voluntarily 'for one of the most celebrated straight-
eners of the kingdom'. Since presumably he wants the money
which he has been successfully acquiring by cheating, his
cheating seems so far to have been a very good thing for him.
Certainly no other explanation has been offered as to why he
began to cheat in the first instance - nor yet for that matter
to stockbroke. And it has not even been claimed that criminal
behaviour is never under the subject's control. Compare the
case from the advice column of Ann Landers (quoted at page
7 above). Although the advice was that the husband had
'emotional problems' and needed 'professional help', no one
had said anything to show that his tiresome and destructive
behaviour was not fully under his control; and the fact that the
heartcry came from the wife and not the husband strongly
suggested that any immediate problems were primarily prob-
lems for her not problems for him.
The problem therefore for Butler is that he is trying to
represent dramatically a total reversal as between sickness roles
and delinquency roles; but to do this while still assuming that
the general facts about human nature and social life are in the
relevant and crucial respects as they have been traditionally
believed to be. But the practice of sending spontaneously for
the straightener in cases such as that of Mr Nosnibor could be
made intelligible only if all delinquents really are, in the sense
indicated at the beginning of this present Section g, victims
and not agents of their delinquencies. This, even if it were true,
would certainly be contrary to the assumption.
It would furthermore be equally fatal to Butler's inherently
impossible project to provide that in a new Erewhon everyone
24 CRIME OR DISEASE~

who did not spontaneously ask for the orthopsychiatric treat-

ment he was supposed to need would be forced to have it any-
way. It would not help, that is, for Butler to take a leaf out of
the book of the Massachussetts judge who recently put a con-
fessed and convicted murderess on probation for ten years 'with
the stipulation that she voluntarily committed herself to the
Massachussetts Mental Health Center for treatment' .2 ° For,
however obliquely, any such move must underline what is
for this project the ruinous difference: between on the one
hand those typical cases of delinquency in which the supposed
victims have to be artificially induced to accept treatments
promising relief; and on the other hand those cases typical of
physical disease in which actual sufferers do spontaneously
summon - or nowadays themselves dance attendance on - their
body-doctors.
*
I0 This crucial difference did not of course escape Plato,
although sometimes it does seem to be escaping some of his
unwitting successors. But to him it appeared not as falsifying
the cherished claim that delinquencies are the expressions of
the disease of the soul, but instead as strengthening the still
more cherished consequence that all delinquents should either
submit themselves or be forcibly submitted to a regimen pre-
scribed by those first specialist straighteners, the Guardians.
For Plato was already committed to a doctrine, developed in
earlier dialogues, which implied that any unwillingness to
submit to such treatments, any protests against compulsory
psychiatric medications, could spring only from a tragic ignor-
ance on the part of the patients of the ruinously diseased
condition of their souls. Such ignorant objections must, in the
interests of the patients as much as of everyone else, be firmly
overridden by the qualified authorities.
The doctrine from which he generates these consequences
is customarily rendered: 'No one willingly does wrong.' This
traditional epitome is misleading: it suppresses the fact that
the WOrd translated as 'doeS wrong' - ap.apTaVH [read hamaT-
tanei] -still carries its original meaning of 'fails', or 'misses the
mark' ; and it puts the emphasis on the will, whereas Plato
himself stressed the intellect. His general line was: since all
men always and necessarily do whatever seems good to them,
A SURVEY OF THE LOGICAL GEOGRAPHY 25
when they do what is in truth bad, then it can only be because
they have mistaken appearance for reality. Since it was also
assumed that whatever is good is also good for you, your
characteristic and habitual evildoing must manifest gross failure
on your part to appreciate your own interests; and this cannot
but be diagnosed as a psychological disorder. What delinquency
essentially consists in, Plato holds, is the failure of the elements
of the soul to perform their functions harmoniously. This is a
failure strictly parallel to that failure of bodily organs to per-
form their functions harmoniously which, Plato takes it, is
physical disease. 21
Our discussion of Plato's development of conceptions of
mental health and mental disease has now served its purpose. 22
This purpose is subordinate to the main aim of the whole
of Part I, which has been to present an outline of the funda-
mental ideas, their implications and their connections. Such
an outline may serve as a sketchmap to save us from getting
lost in the all-encircling mists of a climate of opinion. It is a
moment to quote Nietzsche: 'The Greeks are like genius,
simple. That is why they are immortal teachers.'
II Disease and Mental
Disease

I One main outcome of Part 1 should be a-realisation of

the dependence of the derivative notions of ment"'al health and
mental disease upon the prior notions of (physical) health
and (physical) disease. If this dependence were merely historical
and etymological it would be of little present concern. To
urge that the true and proper meaning of all expressions as now
employed must be determined by either the ultimate etymology
or the original English senses of the words involved is unsound
and tiresome. But it is both correct and important to insist that,
if a large part of the point of applying the descriptions 'mental
health' and 'mental disease' is to imply that most if not quite
all which is involved in (physical) health and (physical) disease
is involved in these further cases also, then any attempt to
elucidate the former should begin from some preliminary ex-
amination of the latter.
This modest methodological claim may appear trite and
obvious. But triteness and obviousness are essentially relative
to time and place and person. For it is most remarkable how
little attention seems to be paid in the now abundant literature
on the nature and criteria of mental health and mental disease
to the similarities and dissimilarities between these and their
physical analogues. Indeed the present essay will, I believe, be
sufficiently justified if it succeeds in persuading some future
contributors to this literature to proceed in this now obviously
sound way.
Consider as a first example Dr Marie Jahoda's Current
Concepts of Positive Mental Health. This is an American work.
It was sponsored by the 'Joint Commission on Mental Illness
and Health, as part of a national mental health survey that will
culminate in a final report containing findings and recom-
mendations for a national mental health program'. This whole
DISEASE AND MENTAL DISEASE

enterprise achieved a most authoritative vindication when only

five years later on 5 February 1963 President Kennedy issued
his Message to the Congress on 'Mental Health and Mental
Retardation'. Dr J ahoda begins: 'There is hardly a term in
current psychological thoughts as vague, elusive, and ambig-
uous as the term "mental health". . . . The purpose of this
review is to clarify a variety of efforts to give meaning to this
vague notion.' She proceeds to classify and to discuss a great
many such efforts. Yet, almost incredibly, she never once
develops any comparisons between mental health as so con-
ceived and physical health; and neither, it seems, did any of
the authorities from whom she quotes. What is revealed is, as
her introductory remarks suggest, a conceptual shambles. But
she herself concludes, quite inappropriately, with the familiar
mandatory appeal for more (expensive) empirical research: 'a
slow and costly' striving 'for more and better knowledge about
the conditions conducive to mental health' , 2 3
The nearest which anyone in this whole book gets to what
should be the fundamental comparison is a hint in a dissenting
-perhaps in this context one should say grumbling- Appendix.
This nearest is still not very near. But Dr Walter Barton does
put as the 'Viewpoint of a Clinician' what he qualifies, but
does not express, as a conceptual insight: 'Conceptually, it
is difficult to see how a national program ... can be operated'
except in as much as 'illness is the point of departure and health
is the goal.' 24 This negatively constructive emphasis contrasts
with the hankering felt by Dr Jahoda herself, by the Staff
Director of the Joint Commission, and by most of Dr Jahoda's
quoted authorities, for some robustly North American accentua-
tion of the positive. Thus the Staff Director writes in his pre-
fatory 'Staff Review' of 'interest in mental health, as a positive
force ... to be made conceptually clear and practically useful'.
He notes that the 'behavioural scientists who have joined the
mental health team and are making increasingly important
contributions to the mental health movement have expressed
dissatisfaction with a primary focus on "sick behaviour" '.zs
Very significantly there is even talk, here and elsewhere, of
'the mental health ideology'. Dr J ahoda's own chosen title
Current Concepts of Positive Mental Health is also entirely apt to the
contributions she does actually find herself examining. 26

*
 CRIME OR DISEASE<

2 A second illustration, which again has some representa-

tive status, is provided by a Report of the Scientific Committee
of the World Federation for Mental Health. Entitled 'Mental
Health and Value, Systems', it appeared with another on
'Identity' as a pair of Cross-Cultural Studies in Mental Health,
published in a single volume edited by Dr Kenneth Soddy.
Dr Soddy is an Englishman, Scientific Director of the Federa-
tion, and also Secretary of the Scientific Committee. The
volume was issued in 1961 as 'A World Mental Health Year
Publication'.
The Report begins by noticing 'that mental health is in-
creasingly becoming a value, in a similar sense to the modern
concept of bodily health'. It takes this observation as setting
its own task: 'If this be truly an emerging concept, then it is
time to consider the relationship between mental health and
the established value systems of people.' 2 7 Here the question
should arise whether there is or has been a corresponding
cross-cultural problem about physical health; and, if not, or
even if so, what it is about mental health which makes the
difference.
The nearest which the Report comes to recognising and
answering this question is in considering 'the acceptances of
mental health concepts' and 'the resistances' thereto. 'Here',
it says, 'an interesting comparison can be made with the
acceptance of the notion of physical health.' Indeed it can be.
But it is not made here. Instead the Report continues: 'The
latter has not always been regarded as a "good object" but,
although the operative description of physical health may be
scarcely less vague than that of mental health, in recent years
and in many parts of the world, physical health has become
increasingly recognised as important and valuable.... If the
concept of physical health as a "good object" has been accept-
able only with difficulty, that of mental health is likely to
provoke even greater resistances.' 2 8
No reason whatsoever is offered why we should accept the
incredible protasis. No hint is given of any peculiar interpre-
tation in which it might possibly be true. That distinguished
signatories could bring themselves to assert, as a fact requir-
ing no evidential support, that physical health has only re-
cently come to be regarded as a good thing, constitutes a note-
worthy indication of how some people - and not only rather
DISEASE AND MENTAL DISEASE 29
young people - are able to believe anything about the dark
days before they were born. An age which no longer reads
the Bible certainly cannot remember its Apocrypha: 'Health
and good estate of body are above all gold.' (Ecclesiasticus,
XXX 15)
Even if we were to accept the bold assertion about struggles
for the acceptance of physical health as a good thing we still
need, but are not given, a reason why mental health should
be expected to encounter not the same but 'even greater
resistances'. The Report thus fails to make anything but a
memorable nonsense of its only explicit attempt to compare
mental with physical health. Where a crucial difference might
have been revealed the opening gap is covered over with an
enormous counter-factual assumption.
If you do not start right, with a faithful comparison between
proposed notions of mental health and the original physical
paradigm, you cannot hope to bring out clearly why these
former seem to be beset by ideological disputes and cross-
cultural conflicts of a kind which scarcely afflict the latter at
all. Certainly ideology is sometimes relevant to the practice
of physical medicine. AJehovah's Witness for instance may not
accept a blood transfusion. A hard-line Roman Catholic doctor
will not in any circumstances perform an abortion. But, if
we waive at this stage the question whether the conditions for
which a secular doctor would be likely to prescribe these
treatments could be called strictly disease, these are disagree-
ments not about diagnoses but about what it is permissible
to do about conditions of which the diagnoses may be taken
as agreed. Such disagreements are not therefore of the same
kind as those with which Dr Jahoda is concerned. For these
do not spring, as those do, from differences with regard to the
correct criteria for the application of the diagnostic expressions
'mental health' and 'mental disease'.
To see why mental health as conceived by Dr Jahoda is an
inherently disputatious notion, in a way in which physical
health is not, consider the first paragraph of her statement of
the 'Purpose and Scope' of her study: 'The purpose of this
review is to clarify a variety of efforts to give meaning to this
vague notion. In doing so we shall have to examine the assump-
tions about the nature of man and society underlying such
efforts by making explicit some of their implications and con-
 CRIME OR DISEASE?

sequences. This should lead first to a description of various

types of human behaviour called mentally healthy and second
to a discussion of mental health concepts suggested in the
literature.' 2 9
No mere body doctor needs to examine 'assumptions about
the nature of man and society' before he can decide whether
the man in front of him is or is not physically fit. The crux lies
in the emphasis in the following sentence on behaviour. If
'mental health' is to be officially defined, as Dr Jahoda here
suggests, in terms of what people actually do do, rather than
in terms of what they are capable of doing, then the notion
as so defined becomes liable to be involved in every dispute
about ideals and actions. By the same token it must thereby
lose some of its logical connections with the concept of physical
health. For it is notorious that a man may be physically fit but
a scoundrel, sick yet a saint. So if the analogy between mental
and physical health is to be preserved here, then we must
provide for the parallel possibility of saying for instance that
whereas St Francis of Assisi suffered from various mental
diseases 'Scarface' AI Capone enjoyed the rudest of rude mental
health.
The Report to the World Federation is even more explicit
about the ideologically committed character of its concepts
of mental health; although, as we have just seen, by making
a truly heroic assumption the authors then conceal from them-
selves the size of the gap which is thus opened between mental
and physical health. They start from two principles: 'That there
can be different degrees of mental health; and that mental
health is associated with ... the prevailing religion or ideology
of the community concerned.' Curiously, they fail to remark the
apparent although not perhaps ultimate inconsistency of this
sort of cultural relativism with their own absolute insistence
later 'that the members of a group of individuals who remain
contented while they are in an inferior position in society fail
to satisfy some of the important criteria of mental health. We
would like also to question the state of mental health of the
"superior" group in that society.' The Reporters also display
at this point the tendency, common in 'the mental health
movement' and among 'the mental health team', to pack all
possible goods into one single, all-embracing, conflict-conceal-
ing ideal; which for them makes 'mental health' a revamped
DISEASE AND MENTAL DISEASE 31
and scientistic substitute for the 'summum bonum' of an
older generation of philosophers.Jo

*
3 A third example of failure fully to come to terms with
the physical paradigm is provided by two chapters in Lady
Wootton's Social Science and Social Pathology. These are for two
reasons of especial interest to us. First she also is approaching
notions of mental disease from a primary concern with delin-
quency. Second she does turn her eyes to the physical paradigm
much more frequently than others do. Thus in the first of these
two chapters, 'Social Pathology and the Concepts of Mental
Health and Mental Illness', she starts by noticing how 'in the
course of a couple of centuries some wheels have come nearly
full circle ... instead of treating lunatics as criminals, we now
regard many criminals as lunatics, or at any rate as mentally
disordered' .31
She proceeds to pick out as 'underlying the prevailing
contemporary views ... a series of closely related propositions'.
The first is that
mental health and its correlative, mental illness, are objec-
tive in the sense that they are more than an expression either
of the tastes and value-judgements of psychiatrists, or of the
cultural norms of a particular society: mental health is to be
regarded as closely analogous to, and no less 'real' than, its
physical counterpart. Second, it is presumed to be possible
. . . to diagnose these objective conditions . . . by criteria
which are independent of any anti-social behaviour on the
part of those who suffer from them; so that anti-social per-
sons can be divided into the two classes of those who are men-
tally disordered, and those who are not thus handicapped.
The second of these is presumably a consequence of the first,
provided only that the necessary possibility is taken to be
sometimes theoretical and not always practical. The distinc-
tion to which it refers, between criteria which are or are not
independent, relates to that developed in Section 3 of Part 1,
between logically necessary and logically contingent interpre-
tations. But what Lady Wootton presents as a corollary of this
second assumption, is not. For, as has surely been made clear
by later sections of that part, it is although rash perfectly
32 CRIME OR DISEASE~

coherent to maintain a version of the extreme Rees thesis in

a contingent and consequently providential interpretation.
You could, that is to say, without contradiction assert that all
delinquencies, as identified by one set of appropriate criteria,
are as a matter of fact expressions of mental diseases, as identi-
fied by another and altogether different set of appropriate
criteria. In the remainder of this chapter Lady Wootton
examines a large number of suggested definitions of 'mental
health' and 'mental disease'. She concludes that these one and
all fail to justify the first of the series of closely related assump-
tions which she distinguished at the beginning.
In the next chapter she considers 'Mental Disorder and
Criminal Responsibility'. It is here that her readiness to pursue
analogies with the physical paradigm is most evident and most
salutary. She notices for instance that we do not allow without
further argument that every disease must fully excuse any
conduct whatever in its subject. Indeed that a man is suffering
from such and such a physical disease is sometimes irrelevant
to, sometimes excuses and sometimes compounds his offence.
So in so far as the analogy between the mental and the physical
holds we should expect the same to apply with mental disease.
For example: the fact that I do suffer terribly from a duodenal
ulcer must surely excuse a general shortness of temper; but it
can scarcely be allowed to expunge my offence in implementing
some elaborately spiteful premeditated scheme. Again the fact
that you are afflicted with a disease of the eyes which disables
you from judging speeds and distances does nothing to exten-
uate your guilt in killing a man in a car crash. On the contrary:
that you knew of this disability makes it altogether inexcusable
to have been driving a car at all. Finally, to quote one of Lady
Wootton's own happily shrewd questions, 'Why should we
accept a plea of diminished responsibility for the unlawful
revenges of the deluded against their imaginary persecutors,
but not for similar actions perpetrated against real enemies
by rational persons, if both parties alike recognize what they
do as wrong ?' 33
We must however challenge the astonishing contention made
at the very beginning of this second chapter. She writes:
'If mental health and ill-health cannot be defined in objective
scientific terms that are free of subjective moral judgements, it
follows that we have no reliable criterion by which to distin-
DISEASE AND MENTAL DISEASE 33
guish the sick from the healthy mind. The road is then wide
open for those who wish to classify all forms of anti-social,
or at least criminal, behaviour as symptoms of mental dis-
order.'34
What is most immediately astonishing about this is the con-
clusion that the collapse of all attempts to develop a suitably
objective distinction between mental health and mental
disease must clear the way for assertions that all behaviour
of some particular disfavoured sort is in fact a symptom of
mental disorder. For it is clear that all concerned are continuing
to assume that the truth of any such assertion would license
certain inferences about the behaviour in question, inferences
which are only warranted if and in so far as it does in some or
indeed in most important respects actually resemble the symp-
toms of a typical physical disorder. But we certainly are not
entitled to claim that something is the case regardless of whether
or not there are any good grounds for maintaining that this is
in fact so. If all attempts to develop a suitably objective distinc-
tion parallel to the distinction between physical health and
physical disease have indeed collapsed, then the true moral
is not that we are entitled to assert of anything we choose that
it is always a symptom of mental disorder. It is rather that it is
not legitimate to try to employ the expression 'mental disease'
in any sense presupposing the subsistence of a strong and exten-
sive analogy between such mental disease and physical disease.
Although, as we have just this moment seen, this is not what
Lady Wootton actually says here, it is nevertheless a position
which she might be content to hold. For she is going on to urge
that we are and, she seems inclined to think, should be moving
towards 'abandoning the concept of responsibility'; an aban-
donment which would involve 'a shift of emphasis in the treat-
ment of offenders away from considerations of guilt and towards
choice of whatever course of action appeared most likely to be
effective as a cure in any particular case'.Js But, to the extent
that we give up asking questions about guilt, we lose the
occasions to ask whether the behaviour under discussion may
be excused as the symptom of mental disease. Hence we shall
have no need, at least in this context, for that concept of mental
disease which she holds 'cannot be defined in objective scientific
terms'.
Lady Wootton makes this interesting and unusual position
34 CRIME OR DISEASE?

possible by distinguishing two different contentions; both of

which, she thinks, are commonly put forward without discrim-
ination. She begins by quoting a multiply obnoxious manifesto
from the Journal of Mental Science. Its author speaks of the
'concepts of responsibility and punishment popular in legal
and psychiatric practice' as 'theological and metaphysical
anachronisms' fit only for the decadent 'amusement of the
religious and others of that kidney'. All that really matters in
any case of delinquency is that 'appropriate action may be
decided upon. Questions of "mad" or "bad", with their value-
judgements and emotional loadings, do not arise. We are con-
fronted with a person who has committed some action that
is abnormal, by its infrequency of occurrence, and that has
brought its doer into conflict with his fellows; we have to
decide how to obviate or minimise repetition of such conflict,
for the good of all concerned.'J6
She also quotes Dr Bernard Glueck, the Supervising Psychia-
trist of Sing Sing. He starts by wondering whether 'present
psychiatric knowledge' is not already sufficient to undermine
the idea of freewill. He goes on to suggest that 'the question of
responsibility would not have to be raised, if the concept of
management of the anti-social individual were changed from
that of punishment as the main instrument of control, to a
concept of the anti-social individual as a sick person, in need of
treatment rather than punishment'. About this Lady Wootton
says: 'that two separate propositions are inherent in Dr Glueck's
position- first, that questions of responsibility can be by-passed;
and, second, that criminality is itself a disease. Dr Glueck him-
self connects these closely, in effect deriving the first from the
second. Nevertheless they are in fact distinct, and it is ... pos-
sible to hold one without necessarily being committed to the
other.'J7
Certainly this is true. You could consistently believe the first
for quite different reasons, or for no reason at all; while to
believe the second surely commits you to saying that the ques-
tion of responsibility is (not so much bypassed as) answered
in the negative sense. But anyone who, like Lady Wootton,
does want to maintain the first without presupposing the second,
will have to be careful. It will not do for instance to take it for
granted that to remove or to inhibit the inclination to delin-
quency will be 'for the good of all concerned', including the
DISEASE AND MENTAL DISEASE 35
delinquent himself. For that will only be universally true upon a
providential assumption which it would be very hard indeed to
justify without appealing to the second, Platonic, proposition.

*
4 The more immediately astonishing thing about the state-
ments at the beginning of the chapter on 'Mental Disorder and
Criminal Responsibility' is the conclusion that the collapse of
all attempts to develop a suitably objective distinction between
mental health and mental disease must clear the way for
assertions that all behaviour of some particular disfavoured sort
is in fact a symptom of mental disorder. But, as has been hinted
already, we should also be more profoundly astonished that
Lady Wootton is prepared to suggest that such an attempt
must be unsuccessful, notwithstanding that extraordinarily little
direct attention has been paid to the crucial physical paradigm.
Certainly she more than most others does notice its importance
from time to time. But what, while she is considering and reject-
ing a series of suggested definitions of 'mental health' or 'mental
disease', she significantly does not do is to ask herself how mental
health or mental disease, so defined, would relate, or fail to
relate, to ordinary health or regular disease.
Let us therefore at very long last raise the neglected funda-
mental questions, 'What is health?' and 'What is disease?' The
Compact Edition of The Oxford English Dictionary suggests that
Plato was right to pick out the idea of function as central.
Health, it tells us, is 'Soundness of body; that condition in
which its functions are duly and efficiently discharged'. Disease
in the relevant sense is, correspondingly 'A condition of the
body, or of some part or organ of the body, in which its func-
tions are disturbed or deranged; a morbid physical condition;
a departure from the state of health especially when caused by a
structural change.'
A first objection is that this is in two respects too broad. It
would include both those malfunctionings due to some con-
genital defect and those caused by wounds. But although doc-
tors might hesitate to pass a man who is in consequence of some
genetic defect blind as without qualification fit, his blindness
could scarcely be rated as a disease. Similarly a person whose
digestive processes have been deranged by bullet wounds in the
 CRIME OR DISEASE?

stomach will be very seriously ill. He will not be diseased.

The Royal Commission on the Law relating to Mental Illness
and Mental Deficiency was taking account of the first of these
two distinctions when it recommended the use of 'mental
disorder' as the generic expression, with 'mental illness' and
'mental deficiency' as species labels.JB The Commission found
no corresponding merit in any mental analogue of the distinc-
tion between wounds and diseases.
A second objection is that these definitions fail to allow for
the possibility that the malfunctioning may be delayed. For a
condition may be said to be diseased in as much as either it is
now resulting in, or if not suitably treated it will later result in,
malfunctioning. (Here death is of course the limiting case of
malfunctioning.) This possibility of delayed action is very
practical. It is what gives point to programmes for regular
physical check-ups on apparently fit and well people. To us its
theoretical interest lies in the opening it makes for expert know-
ledge, not merely of the causes and cures of diseases, but also
of whether a given condition is or is not diseased. Yet so long
as disease is defined in terms of malfunctioning, and malfunc-
tioning is something which it is in principle possible for the lay-
man himself to recognise, the possibility of some delay in its
actual manifestation makes no change in the nature of the
expertise involved.
What would present new problems would be if the effects
in the delayed action cases were of some radically different kind,
and such that the patient himself could only recognise the
threatened malfunctioning as really being such after some
special course of self-transforming training. It is one thing- and
very disturbing - for my doctor to tell me that, although I now
both feel perfectly well and can do all the things which I can
normally do, I am nevertheless the victim of a condition which
will if untreated become both painful and incapacitating. It is
quite another thing - and to the unregenerate natural man
wholly undisturbing- to be told by some Platonic para-medical
adviser that my present state, and that into which this will
develop if I do not forthwith submit myself to his ministrations,
are both such as I would, if only I were a quite different and
much better person, utterly deplore. For in that second case I
remain, such is my actual present so scandalous condition,
complacently content.
DISEASE AND MENTAL DISEASE 37
The third objection is more fundamental. Although the idea
of function is surely in some way central, Plato and the dic-
tionary are both wrong in attending to actuality rather than
potentiality. The tongue of a Trappist is not diseased merely
because during a penitential fast it is employed neither in tasting
nor talking. My rose bushes are not diseased simply because
they are not taking in water which is not there. It will be time
to begin asking questions about disease if when the Trappist
eventually tries to exercise his tongue he finds that he cannot,
and if when the bushes are inundated by a cloudburst still
no water enters the system.
A fourth and still more important point comes out when those
two examples are compared further. In so far as both show that
what matters here is potentiality rather than actuality, they
are the same. But in other respects they are crucially different.
Suppose that water is supplied to my rose bushes, and that none
is then absorbed. That will constitute a sufficient reason for
inferring that there must be something organically wrong,
although what is organically wrong will not necessarily be a
disease. Contrast with this the case of the fasting Trappist.
He is a person and not a plant. So the fact that he does not eat
when food is provided is no more sufficient to show that there
is something organically wrong than is the fact that he refrains
from making passes at the pretty girls. In his case, but not in
that of the plants, there is room for questions about what he can
do if he wants and what he could do if he tried. Indeed it is
essential to the description of this particular example that there
actually is a gap between what he is doing and what he could
be doing if he chose. For anyone who suggests that a dumb
eunuch is fitted for a Trappist vocation is altogether failing
to grasp what monasticism is about.
The fourth point, which applies to people and not to plants,
is different from the third, which applies to both equally. The
fundamental facts which give purchase to such questions about
people are universally familiar and practically inescapable.
Yet it seems to be difficult to describe these facts in a theoreti-
cally neutral way. The unfortunate consequence of failure is
that the resulting theoretically loaded and thus legitimately
controversial descriptions provoke those who cannot accept
the overload to attempt to ignore or to minimise the facts them-
selves.
 CRIME OR DISEASE?

The facts which I therefore want at this stage merely to

indicate and not to theorise about, are: that in the happy
bloom of youth and health our bodies are partly, although still
only partly, subject to our wills; and that there is a fundamental
difference between for instance the claim that I moved my arm
and the claim that my arm moved (although I did not move
it).39 Let us, in order to save words later, distinguish move-
ments of the former sort as movings, while reserving the word
'motions' for movements of the second kind. And let us also,
again for future reference, notice the dangerous possibilities
of that favourite word 'behaviour'; which bridges - and which
may therefore blur - this basic distinction between voluntary
movings and mere motions. For these possibilities may be even
more important than the fact that to employ this word as it is
employed by behavioural scientists is to assimilate into a single
category both what people say and what they do - two things
which it is for many purposes necessary to be ready to
contrast.
Now it is just not on to attempt to deny the subsistence of a
difference: between on the one hand the case of- say- my liver,
which however hard I try I cannot move at all except by shifting
my whole torso; and on the other hand my little fingers, which
I can wiggle around whenever and however the fancy takes me.
But if in referring to such familiar differences I characterise the
equally familiar possibilities of control as manifestations of the
freedom of the will, then this affirmation may not be similarly
uncontroversial. For, whether rightly or not, the word 'freewill'
and the expression 'the freedom of the will' are often so con-
strued as to imply some measure of indeterminism and radical
unpredictability. Even if human beings and their affairs do
happen in fact to be as believers in the freedom of the will in this
philosophically libertarian sense believe that they are, that this
is so is certainly not as immediately obvious and undeniable
as the facts which I am trying to indicate.
Once these fundamental truths have been brought into the
centre of attention we are ready to recognise a fifth point about
the notion of (physical) disease in its primary employment.
This primary application is surely to people and their organs,
rather than to the brutes and theirs, much less to plants and
theirs. But to say of disease in a person that it is 'A condition of
the body, or of some part or organ of the body, in which its
DISEASE AND MENTAL DISEASE 39
functions are disturbed or deranged' is to challenge the ques-
tion whether these functions do or do not include besides mere
motions some movings or abstentions from movings.
The response to this gets us to the heart of the matter. For
the concept of capability, of what we can or cannot do if we
try, is central to the notion of (physical) health - at least in its
primary application to human beings. For a man to be fit is not
for him to do, but only to be able to do, whatever it is which he
is fit to do. Certainly, to be fit to do what a sick or otherwise
unfit man cannot do, does in fact always require the actual
or potential proper functioning of organs which never are
subject to the will. Nevertheless the criterion of the fit man's
fitness is: not the propriety of these actual or hypothetical
motions; but rather his capacities for not necessarily proper
movings and not movings. So, if a definition of'disease' in terms
of the disturbance or derangement offunctions is to be retained,
we shall have to take it that the function of whatever is normally
subject to our wills precisely is to be in this normal way thus
subject.
To illustrate this fifth point, consider malingering. The
malingerer is the man who 'reports sick' when he believes that
he is not. He pretends to be suffering from some disease, or to
be otherwise unfit, in order to be excused from duties which he
does not want to fulfil. His pretences, and the response of the
authorities if they are persuaded that the malingerer genuinely
is 'sick', are intelligible only in so far as what he is pretending
to would involve some relevant incapacity. His supposed
disease, that is to say, or other disorder, must be such as,
whether immediately or later, to render the patient either
incapable of doing at all, or at least incapable of doing so well,
something which otherwise he could have been required to do,
or could have been required to do better. No authority con-
cerned to prevent the avoidance of the duties which it imposes
can afford to allow that disease excuses, except in so far as the
irregularities involved are relevantly incapacitating.
The sixth point about the dictionary definition is that in
referring to disturbances or derangements of functions it is
appealing to some sort of norm determining how things ideally
ought to be. In thus picking out a normative element in the
meanings of the words 'health' and 'disease' this definition is
obviously right. But whereas it is easy to notice that this
40 CRIME OR DISEASE r
element is present, and to appreciate the consequence that
medicine must be an essentially impure science, it is harder
to explicate the nature and the content of the norms involved.
One first sure thing is that disease is not, any more than is
delinquency, something 'that is abnormal, by its infrequency of
occurrence'. 4° For a disease, just like some forms of delinquency
in some milieux, could be endemic and universal. As recently
as the last century there used in fact to be even in Europe areas
in which the entire population suffered from malaria. I am
told too (by both Hungarians and Rumanians) that in the old,
unregenerate, pre-conquest days Hungarian chauvinists would
advise travellers: 'Where everybody steals, that's Rumania.'
Another sure thing, and one much more worth remarking,
is that at least as regards disease the norms involved seem to be
comfortably undisputatious. Where there is agreement about
the clinical facts we do not expect doctors, even from very
different cultural backgrounds and of quite opposite ideological
persuasions, to disagree more than very occasionally as to
whether a patient is or is not physically diseased. This compara-
tive undisputatiousness in practice is a good reason for hesitat-
ing over the suggestion that these particular norms are to a
significant extent culturally conditioned.
Such suggestions have been made in the seemingly some-
what sketchy literature. Thus Dr Lester King, in an essay on
'What is Disease?', gives the answer: 'Disease is the aggregate
of those conditions which, judged by the prevailing culture,
are deemed painful or disabling, and which at the same time
deviate from either the statistical norm or from some idealized
status.' 41
But what actually is painful, and what actually is in some
way disabling, does not depend on what the prevailing or any
other culture may happen to believe. Where therefore there are
differences on these counts someone has to be wrong on a point
of fact. What does provide room for cross-cultural value con-
flicts is: not the question of what is a pain and what is a disa-
bility; but the secondary issue of which pains and which
disabilities to be disturbed about, and which to take as tolerably
normal. This scope is widened by the fact that the capacity
to do one thing can often be bought only at the price of an
incapacity to do something else. That massive build for in-
stance which gave you your chance to be anchorman in the
DISEASE AND MENTAL DISEASE 4I
tug-of-war team must make it impossible for you to go to the
bottom as a world-class caver.
To support his contention that the application of the concept
of disease is culturally conditioned King refers to the artificial
deformation of the daughters' feet in aristocratic families in
traditional China. The example is inept, yet for that very
reason it can be instructive. It would not surely be correct to
describe the condition of the girl's feet- whether before or after
the binding treatment - as diseased. Certainly that treatment
made them unfit for either labour in the fields or table-tennis
contests. Unfitness however can result from congenital defect
or from mutilation as well as from disease. We have, without
prejudice to any disputes about the ideals involved, to insist
that this is not an instance of causing or curing disease. It is
rather a matter of artificial deformation - or reformation.
Certainly there can be, and indeed have been, cross-cultural
conflicts about the practice of foot-binding; just as there have
been, and indeed still are, about the categorically similar cases
of male and female circumcision. But these disagreements are
not, I submit, about whether the untreated are or are not as
such diseased. They are about whether such treatments are
proper, and whether their results constitute mutilations.
To all this the notion of disease becomes relevant only in so
far as it may be argued that if such treatments promote health
then they cannot be illicit, and their results cannot properly
be abused as mutilations. or deformations. This may be a
plausible contention as regards male circumcision. But sup-
porters of female circumcision and foot-binding were - or are -
much more likely to refer not to general health but to adapta-
tion for a particular social role. Here we certainly do find
dramatic cases in which fitness for one way of life must be
unfitness for another: for what fits a woman well for her pre-
scribed role in traditional Kikuyu society necessarily unfits her
to serve as an emancipated playmate for Mr Hefner's young
men; while what fits a child to become an instrument of
'conspicuous waste' inevitably unsuits the adult for the heavier
tasks required to realise the thoughts of Chairman Mao.
These dramatic cases illustrate how fitness for one role may
preclude fitness for another. They are not however cases of
health as opposed to disease. There seems to be no parallel
example in which what doctors of one culture rate as a physical
42 CRIME OR DISEASE~

disease is by their fellow doctors of some opposed ideology

accounted perfectly healthy. Indeed it is this comparative
undisputatiousness of the norms of physical disease which con-
stitutes one, but only one, main reason why so many moralists
have been eager in one way or another to incorporate delin-
quency into the same category. For how very convenient it
would be if only conflicts over whether or not someone is at
fault could, like questions as to whether his physical condition
is diseased, safely be left to expert adjudication. If only too
those who have been at fault could always be handed over to
medical or quasi-medical experts in the secure knowledge that
their treatment would be for their own as well as for the public
good. 'We know', Boethius consolingly assures us, 'that in the
case of the soul health means goodness and sickness means
wickedness. And thus the protector of the good and scourge
of the wicked is none other than God, the soul's guide and
physician. He looks out from the watch-tower of Providence,
sees what suits each person, and applies to him whatever He
knows is suitable,'4z
This undisputatiousness of the norms of disease, in so far as
they are indeed undisputatious, depends upon certain funda-
mental facts about organisms. It is typical of organisms that
they should be composed of non-redundant organs. It is this
familiar and perhaps somehow necessary characteristic which
enables both biologists and the Common Law to work on the
presumption that any organ does have a function even when
it is not at present known what that function is,43 It is also a
fact that given sufficient data biologists generally find little
difficulty in agreeing on what the function or functions of any
particular organ are, and whether these functions are in fact
being discharged efficiently; and in harmony with the dis-
charging by other organs in the organism of their functions.
But there is and can be no similarly convenient consensus about
whatever in the human organism is subject to the will; except
of course in so far as, as has been suggested, the function here is
taken to be precisely and only that of being thus for better or for
worse subject to the will.
*
5 Further points about the concept of physical disease can
best be brought out by commenting on another suggested
DISEASE AND MENTAL DISEASE 43
definition. In an enumeration 'Of Circumstances influencing
Sensibility' in An Introduction to the Principles of Morals and Legisla-
tion Jeremy Bentham wrote: 'Health is the absence of disease,
and consequently of all those kinds ofpain which are among the
symptoms of disease. A man may be said to be in a state of
health when he is not conscious of any uneasy sensations, the
primary seat of which can be anywhere in his body.' (VI, 7)
It is characteristic of Bentham, but wrong, to make 'uneasy
sensations' the heart of the matter. For someone can be easily
unaware that he has a disease. This possibility was dramatically
actualised in a recent British case, much quoted in the press
overseas. A man picked up the victim of a traffic accident, left
lying by the wayside, and drove him to hospital. There the
doctors spotted that the Good Samaritan himself was all
unwittingly subject to a disease which would, had it not been
treated forthwith, have been fatal within hours. I do not know
whether this particular disease would finally have caused
'uneasy sensations'. But it certainly is possible for even a fatal
disease to be totally or almost totally painless. Happily this
seems to have been the case with David Hume's terminal illness,
the 'wasting disease of the bowels'. The same surely applies
even more decisively in many of the cases in which someone is
so fortunate as to die quite unexpectedly 'peacefully, in his
sleep'.
By contrast it is also perfectly possible for some physical
condition involving neither wounding nor hereditary defect to
give rise to very 'uneasy sensations' indeed, without its thereby
qualifying as a disease. The most obvious illustrations here are
pregnancy and the actual process of childbirth. A woman can
feel very ill during pregnancy, and may be more or less incapa-
citated by her condition. Nor in this event will things be made
easier for her by the fact that these misfortunes are among those,
like seasickness, to which other people who do not suffer
similarly are apt to be unsympathetic. Yet none of this appar-
ently is sufficient to warrant the diagnosis 'disease' when the
condition itself and the culminating performance are both so
indisputably instances of biologically normal functioning.
The truth, as was with something less than an unshakeable
conviction suggested in the previous Section 4, seems to be that
the core notion, in so far as there is a core notion, is that of
malfunctioning. But since, as is most commonly insisted in
44 CRIME OR DISEASE?

discussions of the theologian's Problem of Evil, 44 the biological

function of pain is to compel attention to some threatened or
actual malfunctioning in or damage to the organism, it is usual
for both wounds and diseases to be at some if not in all stages
painful. However the system is of course not perfectly complete
and effective. Just as there are some dangerous substances which
we find attractively sweet-smelling, so there are some diseased
conditions which are not signalled by any 'uneasy sensations'.
Even if we do not ourselves share Bentham's commitment
to develop a comprehensive ethical and psychological Utili-
tarian theory, we may still be led astray by two pairs of more
particular pulls. First Bentham's account of disease does in an
appealingly simple way meet what earlier seemed to be two of
the essential requirements. For if disease necessarily and not
merely normally involved uneasy bodily sensations, then this
would surely be sufficient reason to insist that it must always
be presumptively and in itself bad for the sufferer. Suppose too-
a little generously - that the reference to 'the primary seat'
being 'anywhere in his body' is construed as excluding sen-
sations produced directly and artificially by chastisement or
other rough treatment, whether inflicted by others or by the
patient himself. Then presumably the patient is now, even if
earlier he could have avoided getting into this condition, a
victim of the disease, which he cannot escape immediately and
at will.
But this first pair of requirements is satisfied equally by our
own insistence upon malfunctionings rather than painful sen-
sations. Take the second first. Either the malfunctioning is con-
fined to organs not normally subject directly to the will, and/
or it causes, or partly or wholly consists in, incapacities. This
sufficiently guarantees that the patient who has actually got the
disease cannot get rid of it immediately and at will; and hence
that he must be to that extent, and in this respect, a victim.
The rather awkward temporal qualifications are needed to
provide for the fact that many patients could at some earlier
stage have avoided getting into their present condition. For
instance: both syphilis and gonorrhoea are by the exercise of a
little timely prudence nowadays very largely avoidable; albeit
often only at the price of using a sometimes unacceptable old-
fashioned oral prophylactic- saying 'No', and meaning it. But
such earlier avoidability is no more a reason for saying that the
DISEASE AND MENTAL DISEASE 45
patients could now change their condition at once and at will,
than their admitted present need of medical help is a reason
for saying that they never had a chance of not getting themselves
into this state.
The first requirement is that disease must be presumptively
and in itself bad for the sufferer. This too can be satisfied by an
account in terms primarily of malfunctioning. For in so far as
the malfunctionings either cause, or partly or wholly consist in,
incapacities; then they must surely be rated as, presumptively
and in themselves, bad for the people concerned. Yet, as before,
the various qualifications are essential. My disease must be pre-
sumptively and in itself bad for me; and it can be, notwithstand-
ing that the fact that I am thus incapacitated may be a blessing
for others. The illness which has the torture specialist of the
political police lying helpless in his bed is presumptively and in
itselfbad for him; but it is certainly a fine thing for his intended
subjects, and probably good absolutely. Again your tuberculosis
must still be allowed to be presumptively and in itself bad for
you; even though it is entirely to the fact that you have this
disease that you owe your exemption from military conscription,
and all which that may involve. It must be: since clearly it
would be better still for you if you could both retain that
exemption and recover your health; and since, equally clearly,
your qualified satisfaction with your diseased condition can
be made intelligible to the mean sensual man only by reference
to particular present circumstances.

*
6 Of the second pair of pulls, which might mislead someone
to accept Bentham's erroneous account of the nature of disease,
the first is that that account carries the consequences that every-
one must be his own best expert on whether he . is himself
diseased. The second is that, if Bentham is right, it is the seem-
ingly negative notion of disease, and not the apparently positive
concept of health, which- in J. L. Austin's memorably inele-
gant phrase - is the one 'to wear the trousers; commonly
enough the "negative" (looking) word marks the (positive)
abnormality, while the "positive" word ... merely serves to
rule out the suggestion of that abnormality'. 45
Such attractions are not of course attractions for everybody;
 CRIME OR DISEASE~

far from it. Plato, certainly, would have found the first con-
sequence repellent; while the second is necessarily rejected by
all who accept the ambitious definition presupposed in the
constitution of the World Health Organisation: 'Health is a
state of complete physical, mental and social well-being, and
not merely the absence of disease or infirmity... .' However to
appreciate what the attractions or, as the case may be, repul-
sions are is to see what matters here, and why.
So consider first the demand ofjohn Stuart Mill, presented in
the 'Introductory' section of his essay On Liberty: 'Each is the
proper guardian of his own health, whether bodily, or mental
and spiritual.' Although a normative conclusion cannot be de-
duced from strictly non-normative premises, it would neverthe-
less have been convenient for all those who, like Mill, want to
defend politically libertarian norms if only it were the case that
each man is his own best expert to recognise whether or not he
does in fact have a disease - 'whether bodily, or mental and
spiritual'. That the italics at the start of that final clause are
Mills's, and that he chooses to employ the word 'guardian', may
well suggest to us that he himself had in mind exactly those
characteristically Platonic notions reviewed in the last three
sections of the previous part.
For the second attraction consider again the suggestion made
in Dr Walter Barton's grumbling Appendix to Marie Jahoda's
Current Concepts of Positive Mental Health: 'Conceptually, it is
difficult to see how a national program to reduce mental illness
and increase mental health can be operated on any other base
line than a straight one. In this continuum, illness is the point
of departure and health is the goal.'46 Curiously, as was pointed
out when some of this passage was quoted previously, in Section
1 of the present Part, Barton hiinself says that his contention is
conceptual. Nevertheless, as he actually puts it, it is not. His
emphasis is upon what happens to be in present circumstances
practical and sensible: 'If we had solved, or even partially
solved, the problems of preventing or treating major and minor
mental illness, we could then justifiably concern ourselves with
the issue of superlative mental health, or the degrees of good-
ness in good mental health. Unfortunately, we still have far to
go in reducing illness.'47
Barton's proposal that we should for the foreseeable future,
if not perhaps for ever, concentrate on urgent cases of actual
DISEASE AND MENTAL DISEASE 47
illness, rather than on formulating and promoting some ideal
of positive mental health, is authentically Hippocratic. It con-
stitutes an excellent reason for wanting to make out that the
negative idea of disease has some sort of conceptual priority
over the positive notion of health. To extend the method-
ological perspectives compare here Sir Karl Popper's antithesis
between the approaches of what he labels the piecemeal social
engineer and the Utopian.
Popper explains that for the Utopian the first rational step
is to formulate his positive ideal: 'Only when this ultimate aim
is determined, in rough outlines at least, only when we are in
possession of something like a blueprint ... only then can we
begin to consider the best ways and means of its realization, and
to draw up a plan for practical action.' By contrast 'The piece-
meal engineer will ... adopt the method of searching for, and
fighting against, the greatest and most urgent evils of society,
rather than searching for, and fighting for, its greatest good.
This difference is far from being merely verbal. ... It is the
difference between a reasonable method of improving the lot
of man, and a method which, if really tried, may easily lead to
an intolerable increase in human suffering. It is the difference
between a method which can be applied at any moment, and a
method whose advocacy may easily become a means of con-
tinually postponing action until a later date, when conditions
are more favourable.' It is in the second note to this chapter
that Popper, after insisting that there is 'no symmetry between
suffering and happiness, or between pain and pleasure',
advocates a negative as opposed to the traditional positive
utilitarianism: 'Instead of the greatest happiness of the greatest
number, one should more modestly demand the least amount
of suffering for anybody; and, further, that unavoidable
suffering should be distributed as equally as possible.'48
Just as it would be convenient for the political libertarian,
although this is not necessary to his essentially normative
position, if it were to have been conceptually guaranteed that
each man must be the best expert on whether he himself has a
disease or not; so it would be convenient- even perhaps just too
convenient - for the negative utilitarian, notwithstanding that
his stance also is essentially prescriptive, if he could point to the
concept of disease as being somehow logically prior to the
concept of health. Positive notions of health must be seen by
 CRIME OR DISEASE~

the negative utilitarian as threatening a diversion of energies

from the most urgent task of relieving undisputed evils. They
also constitute an at least equally serious threat to the concerns
of the political libertarian.
Since everyone's health is presumptively and in itself good
for him, anyone who promotes the health of someone else must
be presumed to be his benefactor; and so any opposition to the
treatment which the experts prescribe as necessary in their
patients' own interests can only be the outcome surely of
inexpert ignorance. The wider the scope of the concept of
health, the wider the scope for such not necessarily welcome
beneficence. 49 If psychological health is admitted as well as
physical, then that area must be extended correspondingly.
If we further proceed to construe health in general, and psy-
chological health in particular, as positive ideals not definable
in terms solely of the absence of the corresponding sorts of
diseases, then 'mentally healthy' is almost bound to become a
commendatory characterisation of some favoured life-style ;so
and then the more or less forcible imposition of that life-style,
being now a matter simply of health, cannot but be seen as for
everyone's own good.
There is of course no general objection to forming positive
ideals or to recommending favoured life-styles. The objection
is to doing such in themselves perfectly proper things in covert
and illicit ways. To introduce any notion of mental health here
is to pretend to endow your own chosen values with the inde-
pendent and final authority of objective science. More subtly,
it must be to discount as merely symptomatic utterance what-
ever might be said in favour of alternative recommendations.
For to claim that my opponent is as such mentally sick is to
arrogate to my personal preferences a scientific validity; and
a validity which then happily relieves me of the sometimes too
demanding task ofrebutting his arguments.s 1
This first objection or, rather, these first two objections are
not peculiar to the political libertarian. What characteristic-
ally concerns him is the possibility of appealing to such loaded
notions of positive health in order to seem to justify the willy-
nilly imposition of whatever ideals and life-styles may happen
to be thus surreptitiously recommended. But he will of course
be equally suspicious, and for the same reason, of all concep-
tions of mental health as essentially conformist - as necessarily
DISEASE AND MENTAL DISEASE 49
requiring 'adjustment' to whatever may happen to be the ideas
and powers that be. For in so far as both include the idea of
health, both allow the possibility of insisting that any 'adjust-
ment' required must be for the patient's own good.
In the review discussed in Section I of the present Part, Marie
Jahoda accentuated the positive. And in the even more authori-
tative study noticed in Section 2 the authors began their con-
sideration of 'The Nature of Mental Health' by making
explicit 'two assumptions ... that there can be different degrees
of mental health; and that mental health is associated with
principles dependent upon the prevailing religion or ideology
of the community concerned. Therefore any attempt to define
mental health involves consideration of the religious and
ideological setting.'s4
The dangers of such notions from a libertarian standpoint,
which are therefore their authoritarian attractions, can be
made more obvious by comparing the partly parallel develop-
ment of positive concepts of freedom. Freedom, like health, is,
by common consent, a good thing. It is therefore powerfully
tempting to argue that so worthy an object cannot be merely
negative. We are then told that true, positive, freedom is:
not an absence of restrictions, which enables the free man to do
or not to do what he himself wishes; but instead the fulfilment
of some particular ideal, which is not necessarily - and is most
likely not in fact - presently accepted by the actual all too
human beings whom it is proposed to endow with this bless-
ing. If so, too bad; they have to be forced to do or to accept
what, because it is in their interests, they must really want.
They must, in the most notorious words of Rousseau's Social
Contract, 'be forced to be free'. (I, viii)s3
So much then for the reasons why we may like, or dislike,
the second pair of implications of Bentham's account of the
nature of disease. Reasons were given earlier for rejecting that
account as incorrect. It remains to ask now how far our own
rival account provides for these implications.
Certainly it does not permit the first inference: 'that every-
one must be his own best expert on whether or not he is himself
diseased'. But any analysis which did carry this implication
would certainly be wrong. For, as was urged as the second
objection to the Oiford English Dictionary definition, it is per-
fectly possible for the doctors to know that the patient is ill
 CRIME OR DISEASE?

when he himself believes that he is not; a possibility strikingly

actualised in that case of the new English Samaritan, cited at
page 43 above. However, as was suggested when this objection
was first put in the preceding Section 4, there is no need for the
libertarian to be especially disturbed by this possibility; pro-
vided only that the expected future development of the present
painless but diseased condition is such as the patient can now,
and without benefit of any special course of self-transforming
training, recognise to be presumptively and in itself bad for
him.
The threat, which as always is to others a promise, is that the
diagnosis of disease, but especially of psychological disease,
may be taken to license the experts to initiate transformations
which their patients themselves regard now as for the worse.
It was indeed precisely for such unwelcome exercises, in re-
shaping men in ways which perhaps regrettably they do not
themselves recognise to be for their own good, that Plato's
Guardians were by their para-medical knowledge supposedly
qualified. But the way to neutralise this threat, or to frustrate
this promise, is not, mistakenly, to insist that present illness
must have present pain. It is rather to refuse to permit the
application of the notion of psychological disease to cases which
are not cases of disease at all. Above all it is to insist that
'mental health' and 'mental disease' must be defined not in
terms of actual behaviour but in terms primarily of capacities
and incapacities.
The second inference permitted if Bentham is right is that
'the seemingly negative notion of disease, and not the apparently
positive concept of health ... is the one "to wear the trousers"'.
Happily there is no call for us to try to decide here how we are
supposed to determine which is truly the positive and which the
negative of a pair of terms each of which is definable as the
negation of the other.s4 Nor do we need to worry even if it is
suggested that health requires, besides the absence of disease,
some sort of felt or seen glow. For in neither case will the
negative utilitarian have much difficulty in making his essential
point about priorities. The political libertarian too should
again be well content with the insistence that the simple facts,
that someone harbours unacceptable tastes, or that he expresses
unpopular preferences, or even that he chooses to act in dis-
favoured ways, are neither separately nor together sufficient
DISEASE AND MENTAL DISEASE 51
to show that he is in any way diseased. Full room has been left,
as the political libertarian will insist that it must be, and as
indeed it must be, for nonconforming protest: 'Do not adjust
your mind; there is a fault in reality.'ss

*
7 What is curious is that, by his taking the heart of the
matter to be 'uneasy sensations' rather than actual incapacities,
the legal reformer Bentham makes it harder to appreciate
why a plea of disease can often be accepted as a completely
sufficient excuse for failing to act in some required way. For
pains surely could be relevant only indirectly and to the extent
that they were either intolerably distracting or sheerly incapa-
citating; whereas if you were at the time in question relevantly
incapable, then this is so immediately decisive that there is
nothing more to be said. It is in this latter understanding of
mental disease as characteristically if not essentially incapa-
citating that lawyets have been prepared to admit psychiatric
evidence about the accused. Thus the famous McNaghten
Rules, formulated in 1843 nine years after Bentham's death,
insist that a man must be held accountable for his actions unless
he was 'labouring under such a defect of reason, from disease
of the mind, as not to know the nature and quality of the act
he was doing, or, if he did know it, that he did not know he was
doing what was wrong'.s6
Since their first formulation these rules have been subject
to increasing criticism on the grounds that they attend only
to defects of reason - to incapacities, that is to say, to argue
soundly and to understand what is what. In this of course they
follow an ancient tradition. Some of its most quoted rulings
will bear quoting again. One of the earliest comes from Bracton,
who was a priest and head of the then highest English court,
the Aula Regis. In 1265 he wrote in his De Legibus: 'The mad-
man does not understand what he does, and lacks mind and
reason, and is not far removed from the brutes.' In 1535 Fitz-
herbert, a judge of common pleas, provided a handy test of
mental deficiency: 'An idiot is such a person as cannot count
or number twenty pence, nor tell who was his father or mother,
nor how old he is.' And in 1671 Sir Matthew Hale, a famous
judge and author of authoritative legal treatises, insisted: 'Such
 CRIME OR DISEASE~

persons as have their lucid intervals (which ordinarily happen

between the full and change of the moon) . • . have usually at
least a competent use of reason, and crimes committed by them
in these intervals are of the same nature, and subject to the
same punishment, as if they had no such deficiency....'s 7
Certainly among lawyers the main objection to this tradi-
tional concentration upon intellectual incapacities has been,
not to the insistence upon the question of capacity or incapac-
ity, but to the exclusiveness of the concern with the intellectual.
Thus in I886 Judge Somerville in Alabama declared that
'there must be two constituent elements of legal responsibility
in the commission of every crime, and no rule can be just and
reasonable which fails to recognize either of them: (I) capacity
of intellectual discrimination; and (2) freedom of the will'.
Having earlier, with a fine sense of occasion, insisted that the
Common Law is not 'like the law of the Medes and Persians,
which could not be changed', and that 'its power of adaptation
to new scientific discoveries, and the requirements of an ever-
advancing civilization ••. must not be unduly obstructed by the
doctiine of stare decisis', Judge Somerville proceeded to con-
clude that, if it is true as a matter of fact that mental disease
can so affect the mind 'as to subvert the freedom of the will,
and thereby destroy the power of the victim to choose between
right and wrong, although he perceive it'; then the patient
of such a disease must surely be, no matter how clear that
perception, innocent victim rather than criminal agent.sS
Substantially the same conclusion was reached rather earlier
in England by Sir James Fitzjames Stephen. He proposed three
rules to replace the McNaghten two, offering these confidently
as an account of what the law ought to be, and only slightly less
confidently as an analysis of what really it was already: 'No
act is a crime if the person who does it is at the time when it
is done prevented (either by defective mental power or) by any
disease affecting his mind: (a) from knowing the nature and
quality of his act; or, (b) from knowing that the act is wrong;
(or, (c) from controlling his own conduct, unless the absence of
the power of control had been produced by his own default).'s9
More than half a century later, in 1953, Stephen's third rule
was endorsed as a proposal by the Royal Commission on Capital
Punishment, but without the final exception clause. They
recommended a change in the law to require that 'the jury
DISEASE AND MENTAL DISEASE 53
must be satisfied that, at the time of committing the act,
the accused as a result of disease of the mind or mental defect
either (a) did not know the nature and quality of the act; or
(b) did not know it was wrong; or (c) was incapable of pre-
venting himself from committing it' .60 This recommendation-
which in Britain, incidentally, seems to have been submerged
in the politicking about the outright abolition of the death
penalty for murder - is in effect identical with that included
in the Model Penal Code of the American Law Institute: 'A
person is not responsible for criminal conduct if at the time of
such conduct, as a result of mental disease or defect, h~ lacks
substantial capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the
law.' 61
The same understanding of disease is again presupposed by
two enormously influential American decisions. Mental, like
physical disease, is then taken to be in itself or in its effects
incapacitating, and whether someone is or is not the victim of
any sort of disease is construed as a straight matter of fact.
Thus in the case of State v. Jones (I87I) the Supreme Judicial
Court of New Hampshire maintained that 'Whether the defend-
ant had a mental disease ... seems as much a question of fact
as whether he had a bodily disease; and whether the killing
of his wife was the product of that disease was also as clearly
a matter of fact as whether thirst and a quickened pulse are
the product of a fever.' The legal implications are obvious:
'No argument is needed to show that to hold that a man may
be punished for what is the offspring of disease would be to hold
that a man may be punished for disease. Any rule which makes
that possible cannot be law.' 62 Judge Bazelon, when he for-
mulated in I 954 what has since been christened the Durham
Rule, gave the alternative: 'simply, that an accused is not
criminally responsible if his unlawful act was the product of
mental disease or mental defect.'63

*
8 I have quoted extensively in the previous Section 7 from
legal sources in order to bring out that it is precisely - and
surely only - in terms of the sort of understanding being
developed in the whole of the present Part II that questions of
54 CRIME OR DISEASE?

disease, and particularly of mental disease, could be relevant

to decisions of criminal responsibility. If 'mental disease'
were definable, or in so far as it is allowed to become definable,
simply and solely in terms of disfavoured behaviour as such;
then the appeal to mental disease, so construed, would be, or
must become, impotent either to explain or to excuse that
disfavoured behaviour. Suppose for instance that for you
'kleptomaniac' is just a scientistic synonym for 'sticky-fingered':
then necessarily, for you, to say that he is a kleptomaniac no
more explains his characteristic thievery than to say that
chloroform possesses anaesthetic virtue explains why it can put
people to sleep; and, equally necessarily, the same utterance,
from you, can no more serve to excuse that thievery than could
its less pretentious equivalent of saying that he is of a thieving
disposition. Again suppose that the presence of mental disease
is, or suppose that it is allowed to become, not a matter of,
albeit elusive, objective fact, but some sort of function of the
ideological commitments and the social position of the observer.
Then to say that he is mentally sick is, or would be, to say
something at least partially on all fours with saying that he is -
or more likely is not- one of our party, our religion, our class
or whatever. It is precisely against the recognition of such
irrelevant differences that Justice is supposed to be blind-
folded!
If however we take mental disease, as we surely should, to be
something which of its very nature tends to inhibit capacities,
then it at once becomes obviously relevant to ask whether the
accused suffered from some 'mental disease or mental defect'
which rendered him incapable of understanding, or incapable
of at will doing or abstaining from, whatever it was that the law
required of him. And of course with appropriate alterations,
the same applies in other, extrajudicial, contexts. It applies,
that is, in all contexts of accepting or disclaiming personal
responsibility, whether or not this accepting or disclaiming
happens to involve inculpation or exculpation.
The second requirement which I have been stressing, that
the diseased condition should be such as to be regarded by the
patient as in itself and by his standards bad, is in the judicial
context rather less directly relevant. First it is generally, for
purposes of legal exculpation, sufficient to show either that
your client did not know what he was doing, or that it was
DISEASE AND MENTAL DISEASE 55
behaviour which he could not have helped anyway. Yet the
case will certainly be strengthened if it can be shown that he
would positively have preferred that what happened should
not have happened, and that he is now eager that all possible
steps be taken to prevent any recurrence. Supposing that this
is indeed so, then he presumably must regard the condition
apt to produce such regrettable and regretted behaviour as
'in itself and by his standards bad'.
Since in such contexts of judicial exculpation this suggested
second requirement is thus less directly and not essentially
relevant we can perhaps, at least sometimes, afford to neglect
it. But when we are confronted directly with the problem of
deciding what conditions can, and what cannot, properly be
rated as mental diseases, then it certainly is essential, although
not consequently sufficient, to attend to both requirements.
However, since there may reasonably be doubt whether what
I have formulated as a second requirement really is an element
in the meaning of the expression 'mental disease' - as opposed
to a peripheral condition which may normally be presumed to
be satisfied as a matter of contingent fact- it becomes especially
worth emphasising that the crux here is in any case not purely
or even primarily conceptual. For suppose it is conceded that
my 'second requirement' is in truth not a necessary condition
of the correct application of the term 'disease' or the expression
'mental disease'. It still remains true that there is a world of
difference, and a world of difference which must not be over-
looked or concealed: between on the one hand the usual
doctor/patient relationship, in which the doctor is trying to
change a condition which the patient wants changed; and on
the other hand another relationship in which, while the doctor
is as before working for change, the complaints come not from
the patient but from other people.
This important question ofwho is complaining first arose for
us in the case of 'The Nut', described in Section 3 of Part 1.
Compulsory treatment, or confinement, were not immediate
issues there. But it was being suggested - for absolutely no good
reason given - that it was the uncomplaining husband rather
than the very understandably complaining wife who was the
victim of the disorder; and consequently that any treatment
provided would be in the first instance in his interests and for his
good. The same question is equally pertinent in far more serious
 CRIME OR DISEASE'

cases, where compulsory treatment and confinement may be

live issues. Dr E. Bittner of the Langley Porter Neuropsychiatric
Institute of San Francisco was therefore right to press it in the
discussion of a recent presentation by Dr R. G. McGrath. Dr
McGrath was speaking for the psychiatric staff of Broadmoor.
Dr Bittner with great tact objected:
The patients in your charge are, as you put it, in need of 'the
strictest control'. I appreciate that the talking about patients'
needs as the governing consideration in treatment expresses
the noblest aspects of psychiatry, but this is not completely
realistic. Whatever these needs are, and I do not wish to dis-
pute your appraisal of them, they are embedded in society's
need to have the patients in such institutions as Broadmoor.
. . . People are sent to institutions for the criminally insane
. . . not only because they are sick but also because they
are criminals and dangerous. In ordinary medical or psychi-
atric practice the risk of incomplete recovery or recurrence is
borne by the patient alone. In the treatment of the mentally
abnormal offender the burden of the risk is distributed in
the community.64
The same question will become even more to the point, and
may well need to be pressed less tactfully, where the justification
for confinement or for compulsory treatment is not so obvious,
or not obvious at all. Most of Dr McGrath's wards, if released
as they were when they were first confined, would presumably
constitute a clear and present threat of violence against
others. 6s It is reasonable enough to argue that such proven public
menaces should be confined in a special institution, and there
subjected to compulsory treatment; especially when, because
they have actually committed violent offences already, the
effective alternative is incarceration for a more definite term in
prison. 66 Yet even here one should be careful: not only not to
overlook that such imprisoned patients may not actually want
the treatment which will be provided by the public psychiatrist;
but also not to assume too easily that what undoubtedly is in
the general interest must necessarily and always be in the
interests of and for the good of each individual subject. 67
Later in the same Symposium, to which both Dr McGrath
and Dr Bittner contributed, another psychiatrist, Dr A.
Schapiro of Harper bury Hospital at St Albans, argued: 'When
we talk about the compulsory detention of mentally abnormal
DISEASE AND MENTAL DISEASE 57
offenders, we are not talking about criminals but about very ill
people. One may detain and treat, if necessary surgically, an
unconscious patient in hospital, assuming that he would have
consented to treatment if he had been conscious. The"'great
innovation in England and Wales came in 1959 with the
Mental Health Act, when psychiatrists were allowed to treat
people incapable of consent without judicial permission .
. . . The duty of society towards a handicapped member is to
treat him as a minor or as someone who cannot take responsi-
bility for his own treatment.'68
It is of course entirely right in all discussion of mental disease
to search for the physical analogies. But the one to which Dr
Schapiro appeals cannot give him the mileage he wants.
Comparatively few physical diseases are so catastrophically
disabling as to render the patient unable to give or to withhold
a valid consent to treatment; and even Dr Schapiro's fellow
psychiatrists, especially those engaged in more private practice,
would surely take a lot of persuading to accept that the situation
is in this respect altogether different with mental diseases. I
suggest too, although I obviously am in no position to prove,
that direct examination even of Dr Schapiro's own patients in
Harperbury Hospital - an examination, that is, which did not
appeal to the supposed consequences of their being mentally
diseased - would not justify any general claim that they are
one and all chronically incapable of anything deserving the
name of considered consent or refusal. They may all be - I am
sure that they are - thoroughly misguided and often very dan-
gerous in what they want or do not want. But that is not at
all the same thing as being, like a man unconscious, simply
unable to consent or to refuse. If they really were all in that way
and to that extent helpless there would be no security problem
in his or any similar institution.
The great danger here - and for all such public psychiatrists
it is a true occupational hazard - is to insist from the beginning
that your dealings with your wards are exactly those of a
(private) doctor with his (physical) patients. Being conscious
of your own purely and perfectly Hippocratic intentions, you
then infer that - since to cure (physical) patients of their
diseases is (normally) to act in their interests, and to respond
to their needs, and to do what they themselves want you to do
for them- all this must apply equally to you and your situation.
 CRIME OR DISEASE I

Certainly the argument is as sound as the intentions are honour-

able; and none the less so because - like Dr Schapiro - you
may have confused yourself further by mistaking it that what
holds of only a minority even of seriously ill physical patients
holds of all. But a sound argument guarantees its conclusions
only where its premises are in fact true.
The present argument takes it for granted that the patients
in question are indeed suffering from mental diseases, and that
in an interpretation in which mental diseases must be in the
crucial respects like physical diseases. This is the interpretation
which I have throughout the present Part been trying to develop
and to defend; and I have been correspondingly concerned that,
if we are to infer from statements that someone is mentally
diseased the conclusions which do indeed follow, then we must
demand that the original statements are appropriately war-
ranted. Notwithstanding that it is constantly done, it will not
do to begin by assuming or even asserting that since we are
dealing with serious mental disease this or that must be the
case, and then to overlook the instances where in fact it is not;
and to fail to see that, if these consequences do not obtain, then
that they do not is a ground for concluding that- whatever may
or may not be wrong with that subject - 'mentally diseased' just
cannot be the correct description of his condition. There is and
can be no substitute for looking directly at the facts; and asking,
of each separate candidate type, whether or not the analogy
with the physical actually is adequate to justify the description
'mental disease'.
*
9 It is a task which might fill many books, and perhaps
never be completed. But what is needed here and now is to
establish some paradigms: first some sorts of case to which,
upon the basis of that crucial analogy with the physical, the
application of the description 'mentally diseased' is clearly
warranted; and then others in which, by contrast, notwith-
standing that such a diagnosis has in fact been rendered by
some qualified psychiatrists, it is equally clearly not justified.
Certainly there must remain many further actual or possible
cases which are far more marginal, and where the correct
verdict would necessarily be less obvious. But a sure way of
producing not clarification but confusion is to start by attend-
DISEASE AND MENTAL DISEASE 59
ing to peripheral or derivative employments of the term or
expression under examination without first getting a strong
grip on what is typical and fundamental.
So let us start where Freud himself started:
The obsessional neurosis and hysteria are the two forms of
neurotic disease upon the study of which psychoanalysis was
first built up, and in the treatment of which also our therapy
celebrates its triumphs . . . . The obsessional neurosis takes
this form: the patient's mind is occupied with thoughts that
do not really interest him, he feels impulses which seem alien
to him, and he is impelled to perform actions which not only
afford him no pleasure but from which he is powerless to
desist .... Against his will he has to worry and speculate as
if it were a matter oflife and death to him. The impulses ...
mostly ... consist of something terrifying, such as temptations
to commit serious crimes, so that the patient not only re-
pudiates them as alien, but ... guards himself by prohibi-
tions, precautions and restrictions against the possibility of
carrying them out .... What he does commit are very harm-
less, certainly trivial acts - what are termed the obsessive
actions - which are mostly repetitions and ceremonial elab-
orations of ordinary everyday performances, making these
common necessary actions ... into highly laborious tasks of
almost insuperable difficulty ... he is perfectly aware of his
condition, he shares your opinions about his obsessional
symptoms. . . . Only he simply cannot help himself; the
actions performed in an obsessional condition are supported
by a kind of energy which probably has no counterpart in
normal mentallife.7o
For our theoretical purposes it is perhaps a pity that Freud
has to say of the kind of patient who has these 'impulses ... to
commit serious crimes' that: 'As a matter of fact he never,
literally not even once, carries these impulses into effect... .'
Yet there can be no doubt but that obsessional neurosis, as
here described, does deserve to be called a disease. Freud keeps
insisting that the patient 'is powerless to resist', that 'he simply
cannot help himself'. So, once granted that this is indeed true,
it follows that the obsessive and compulsive actions must be-
in our terminology of Section 4 of the present Part - not
movings but motions; which brings with it the rather awkward
consequence that such obsessive and compulsive 'actions cannot
in the strictest sense be actions at all. Since the malfunctioning
6o CRIME OR DISEASE r
here has at any rate no known organic foundations, it can be
taken simply to consist in the fact that what would be subject
to the will in a normal person, in the patient is not so subject.
Its cure must, correspondingly, simply consist in the correction
of that malfunctioning. It must, that is to say, be helping the
patient to regain those powers of which he had by his illness
been deprived.
That a cure should be in the eyes of the patient himself and
by his standards in itself good is in this paradigm case provided
for twice over. It is in effect stipulated in Freud's specification:
' . . . he is perfectly aware of his condition, he shares your
opinions about his obsessional symptoms ... ', and so on. But
it is also, and more interestingly, guaranteed by the very nature,
as Freud now proceeds to describe this, of a psychoanalytic
cure. He starts from 'a fundamentally new fact, by means of
which much else becomes explicable'. This new fact is that:
'Symptoms are not produced by conscious processes; as soon
as the unconscious processes involved are made conscious the
symptom must vanish.'7 1 Now Freud surely cannot be claiming
that the therapy which makes the unconscious conscious
thereby renders patients who previously could not help per-
forming some obsessional ritual now equally unable to repeat
that performance - in the excessively unlikely event of their
wishing so to do. So to warrant the conclusion that 'as soon
as the unconscious processes involved are made conscious the
symptom must vanish', it has to be assumed that the patient
himself wants to be shot of his symptomatic obsessional per-
formances (motions); and hence that he will not - once the
success of the therapy has given him the choice of going through
the ritual or not - repeat the same old routine as a series of true
actions (movings) .12
It is essential, if we are to appreciate what was involved in
Freud's introduction of his idea of the unconscious mind, to
take the measure of this supposed 'fundamentally new fact'.
For- as I have argued at length elsewhere- the heart of the
matter is, that, 'if you are prepared so to extend such notions
as motive, intention, purpose, wish, and desire, that it becomes
proper to speak of motives which are not known to, and the
behaviour expressing which is not under the immediate con-
trol of, the person who harbours them; then you can interpret
(and even guide) far more of human behaviour in terms of
DISEASE AND MENTAL DISEASE

concepts of this sort than any sophisticated adult had previ-

ously realised. 73
The immediate relevance of this for us lies in the second of
the two extensions: 'that it becomes proper to speak of motives
which are not known to, and the behaviour expressing which
is not under the immediate control of, the person who harbours
them.' This second innovation was of the two the more radical,
and yet it is also the one more often overlooked. Even Dr
Thomas Szasz, in his splendid crusading onslaught on The
Myth of Mental Illness, seems not to appreciate how crucial it is.
As the title of his book suggests Szasz undertakes to show:
not just, as I would agree to be both true and important, that
the concept of mental illness has been dangerously abused and
absurdly overextended; but rather, what is surely false and
extravagant, that it has no proper application at all- that there
simply is, and perhaps can be, no such thing as a mental disease.
In his Introduction he says: 'I submit that the traditional
definition of psychiatry ... places it alongside such things as
alchemy and astrology, and commits it to the category of
pseudo-science. Psychiatry is said to be a medical specialty
concerned with the study and treatment of mental illness.
Similarly, astrology was the study of the influence of planetary
movements and positions on human behaviour and destiny.'74
Szasz begins with a chapter on 'Charcot's Contribution to the
Problem of Hysteria'. For he rightly takes this contribution to
have constituted the historical turning point, and hysteria to
be one paradigm of what mental disease has been supposed to
be. Szasz quotes from Freud's memoir, 'Charcot':

First of all Charcot's work restored dignity to the subject;

gradually the sneering attitude, which the hysteric could
reckon on meeting when she told her story, was given up,
she was no longer a malingerer, since Charcot had thrown
the whole weight of his authority on the side of the reality
and objectivity of hysterical phenomena. Charcot had re-
peated on a small scale the act of liberation commemorated
in the picture of Pinel which adorned the lecture hall of the
Salpetriere. Now that the blind fear of being fooled by the
poor patient which had stood in the way of a serious study of
the neurosis was overcome, the question arose which mode
of procedure would most speedily lead to the solution of the
problem.7s
 CRIME OR DISEASE r

It certainly is curious, as Szasz insists, that Freud speaks

here only of Charcot's authority: and that Freud does not here
commit himself by actually saying that these particular patients
were not in fact malingerers. Instead his whole emphasis - and
this was a noteworthy sign of the shape of some things to come-
was upon two fortunate consequences of Charcot's influential
reclassification: first that it restored human dignity to its
subjects; and second that it encouraged study where previously
this had been inhibited. Szasz takes Freud's reserve to be an
indication that those whom Charcot thus asserted to be
suffering from the mental disease of hysteria were in fact,
after all and with whatever justification, malingerers. Szasz
therefore proceeds to assemble further and more direct evid-
ence to confirm suspicions of Charcot, 'the Caesar of the
Salpetriere'. 76
Suppose we allow that Charcot himself was often, or even
always, deceived by malingerers. It still remains an extra-
ordinarily bold thesis to maintain that there never have been
any genuine cases of hysteria or obsessional neurosis, satisfying
the descriptions provided by Freud and by so many others;
and hence that there cannot have been any authentic cures of
these conditions, either by Freudian psychotherapy, or by any
other treatment. It is therefore surely significant that Szasz in
his turn does not himself actually say precisely this, in so many
words. Instead he goes on in a second chapter to discuss 'The
Logic of Classification and the Problem of Malingering'.
It is here, I suggest, that he fails adequately to come to terms
with the second of the two aspects of Freud's notion of uncon-
scious motivation. Szasz says: 'With Freud and psychoanalysis
hysteria comes to be viewed as unconscious malingering. . . .
This new version of malingering ... differed from the previous
notion of counterfeit illness (of the body) by virtue of the new
dichotomy "conscious-unconscious".'" This is to bungle the
playing of Freud's ha.nd. For on the interpretation just now
provided Freud ought to say of the patient suffering from an
hysterical paralysis or given to obsessional and compulsive
performances: not only that he, or she, is not aware of the
motives engaged; but also that he, or she, is unable to move
the paralysed member or, as the case may be, unable to stop
the compulsive performances. But any 'malingering' which is
in this dual sense unconscious is not malingering at all. For it
DISEASE AND MENTAL DISEASE

is necessarily authentically incapacitating. There is therefore

no reason for denying that here is a case of disease.

*
I0 Yet it is mental rather than physical. In as much as our
concern is with mental disease in its relations to delinquency,
attention has to be concentrated upon what is required to
warrant the application of the second term in the expression
'mental disease'. But it should at least be noticed that the scope
of this expression is properly in part determined by whatever
is from time to time seen as constituting the essence of the
mental. Plato, as we saw in Section 8 of Part I, construed his
if;vx~ [p.ryche] as a word for a sort of incorporeal substance;
taking all the behaviour which distinguishes men as rational
agents as the manifesting work of these themselves unobservable
entities - which are, he thought, what men ultimately and
essentially are. This provided, at any rate in theory, 'a satisfy-
ingly clear-cut and decisive principle for separating the spheres
of physical and psychological medicine'. However although
much of the talk of the activities and interactions of the U ncon-
scious and the Preconscious and the Conscious, of the Ego and
the Id and the Superego, does encourage interpretation along
such Platonic lines, it is at least doubtful whether any contem-
porary psychiatrists - with the possible exceptions of some
Roman Catholics and Catholicising Jungians - really intend
their theoretical notions to be read in so substantial a way. 78
Traditionally, as came out clearly from the review of legal
tests in Section 7 of this Part, the crux has been taken to be
knowledge and understanding. Thus Philippe Pinel, who did
so much to ensure that the insane should be treated as mentally
diseased, saw their afflictions as consisting in disorder in this
area: 'The storms of the revolution stirred up corresponding
tempests in the passions of men, and overwhelmed not a few
in a total ruin of their distinguished birthright of reason' ; and
a memorable example of such a cataclysm is provided by the
unfortunate patient who believed that he had been first
guillotined, and then afterwards reconstituted - if that is the
right word- with someone else's head. 7 9 But, as we also saw in
the same Section 7, this rationalist conception was already
being widened long before Freud.
 CRIME OR DISEASE?

In Freud's own paradigm cases of mental disease, as he

describes them, there specifically is not any untowardness of
belief: the patient 'is perfectly aware of his condition, he shared
your opinions about his obsessional symptoms .... ' The intro-
duction of Freud's conception of the unconscious carried with
it the adoption of a new and much more comprehensive
criterion of the mental: a man's mind became, it might be
said, the entire field of application to him of all such intentional
notions as motive, purpose, wish and desire; while, at the same
time, the objects of all these concepts are allowed to be, ifthey
are not conscious, unconscious. so The description 'mental
disease' can consequently now cover: not only afflictions which
reduce the rational capacities of the patient; but also any condi-
tion in which acquired incapacities are the expressions of
unwnscious motives. By either criterion of the mental, narrow
or broad, all mental disease presumably must be at the same
time disease of the central nervous system; although those
who presume this are not required to take it that the converse is
true also. Certainly Freud, who was an alumnus of the Vienna
Medical School and a disciple of Brlicke, remained always
faithful to the conviction that all psychological phenomena
have some determining physiological basis.
Now if, like any other scientifically minded person, you want
to say this ;sr and if you also want to allow, as rightly or wrongly
almost everyone does, that there really are cases of a kind for
which Freud's description of obsessional neurosis provides a
paradigm; then you will have to allow that there are, for
practical purposes, two very different sorts of disease of the
central nervous system: 'Mental illnesses can be broadly
subdivided into those which ar.e clearly associated with an
identifiable cerebral abnormality, and those which are not.'8 2
This is the distinction here between on the one hand the
organic, and on the other, the functional. The temptation is to
believe that as indices of incapacity the organic afflictions
possess an ultimate epistemological superiority over the func-
tional. Thus, to cite an old but famous example, in the trial of
Hadfield for the treason of attempting to murder George m,
the task of Lord Erskine for the defence was greatly eased by
the fact that he could display to the court visible brain damage:
'His client had obvious and disfiguring wounds in the head ....
One .•. had penetrated the skull, so that Erskine was able to
DISEASE AND MENTAL DISEASE

invite the jury to inspect the membrane of the brain itself. An

officer of his former regiment testified that before Hadfield
had been wounded he had been an excellent soldier, but after-
wards had been incoherent, with "manifest symptoms of
derangement". The regimental surgeon recalled how he had
been compelled to have Hadfield tied to a bed for a fortnight.'83
Even waiving the further sympathetic consideration that
Hadfield's injuries had been suffered in the service of his
country, and against the French, this evidence was all that
Erskine could have asked. The jury too, confronted by such
gross brain injuries, were quite right to be very ready to accept
evidence that these injuries had produced equally gross mental
derangement. What justified this readiness was the other
knowledge which they already had of ways in which such injur-
ies and deformities give rise to incapacities. But this knowledge
can provide no basis for denying the practical possibility that
people may become afflicted with incapacities which have no
presently detectable physiological basis. Much more interest-
ing are two less familiar points. First it is certainly not apriori
necessary that every difference in the capacities of two objects
must be grounded on, and a manifestation of, some structural
difference between those objects. If this actually is the case - as
of course every good materialist must believe - that it is the case
is a matter of contingent fact. Second the ideas of function
and capacity are here epistemologically prior and not secondary
to the notions of injury and disease. For a condition could not
be identified as diseased except by reference primarily to its
tendency to frustrate functions and to inhibit capacities.
The relevance of these abstract and metaphysical considera-
tions to practical questions about delinquency and mental
disease is this. Especially among those made impatient by
attempts to excuse any and every crime as an expression of
mental disease, there may be an inclination to urge that the
only genuine and potentially exculpatory mental diseases are
those which are satisfyingly organic, and not merely functional.
This is in effect the position into which in The Myth of Mental
Illness Szasz imprudently manoeuvres himself. The imprudence
of it comes out most clearly when we entertain the permanent
possibility of discoveries requiring the transfer of some condi-
tion previously rated as only functional into the other, the
organic, category. If ever, or whenever, this possibility is
66 CRIME OR DISEASE r
realised those who have denied the genuineness of the incapaci-
ties which had previously been presented as only functional
will have humbly to admit that these were after all authentic.
But the temptation to adopt such an indiscreet position will be
further reduced once it is also realised, as has just been argued,
that there is no apriori necessity that capacities and incapaci-
ties should always be bottomed upon structural differences, and
that these ideas here are in any case epistemologically prior
to that of disease.
In this perspective it becomes clear too that- granted always
one crucial proviso - there can be no objection in principle,
though there may be many of substance, to admitting into the
category of functional mental disorders pyromania, kleptomania,
homicidal mania and indeed as many other kinds of mania
as the combined resources of our Classical knowledge and our
imagination permit us to compass. The crucial proviso is that
the disease, if it is to be a disease, must be defined: not in terms
of the mere inclination towards the disfavoured behaviour;
but in terms of an inability to inhibit that inclination.
At the beginning of Section 8 of this Part, I maintained that:
if 'for you "kleptomaniac" is just a scientistic synonym for
"sticky-fingered": then necessarily, for you, to say that he is a
kleptomaniac no more explains his characteristic thievery than
to say that chloroform possesses anaesthetic virtue explains why
it can put people to sleep; and, equally necessarily, the same
utterance, from you, can no more serve to excuse that thievery
than could its less pretentious equivalent of saying that he is of
a thieving disposition.' This is, I still think, all absolutely right.
But the implications become quite different if 'kleptomania' is
defined, not in terms of thieving as such, but of compulsive
thieving; or, at any rate, they do so as long as 'compulsive' is
construed as meaning (more or less) uncontrollable.S4 For, on
that interpretation, that he is a kleptomaniac is (more or less)
an excuse for his stealing; in his condition he would have found
it (unusually hard or) impossible not to have stolen. It is also
just worth pointing out that, on either interpretation, to say
that he is a kleptomaniac can help to explain why he commit-
ted one particular theft. What it cannot explain, since it is a
restatement of it, is his general disposition to steal, or to steal
compulsively, as the case may be.
So if kleptomania, or pyromania, or whatever, is construed
DISEASE AND MENTAL DISEASE

as compulsive thievery, or compulsive incendiarism, or com-

pulsive whatever, then such a condition, if it does in fact occur,
may with good reason be categorised as mentally diseased; and
the compulsiveness which is necessary to justify this classifica-
tion should also be sufficient to excuse the behaviour. But it is a
different thing again if these terms are to be construed, as they
sometimes are, as referring to the absence of any normal, and
hence immediately and generally intelligible, motivation. He
had no reason to steal, it may be said, and such a silly and useless
lot of objects too: he could afford to buy all the paperclips and
light bulbs and protractors which he needed; and anyway his
apartment was awash with ones which he had already stolen
from other places. She had no reason to burn those places
down: she did not even know the owners, much less have
grudges against them; and the buildings were not even insured,
so she could not have hoped to collect on that.
Such conduct cannot but be puzzling. It certainly seems
irrational. For the agent had no motive - no reason - for so
acting. Or - rather - the agent had no motive, no reason, with
which we can immediately sympathise. Such conduct and its
motives - conduct which, significantly but misleadingly, we
are inclined to label 'motiveless' - could even be described, in
a sense long on disapproval if short on literal content, as morbid.
But it would be as wrong, and wrong for the same reasons, to
define 'mental disease' in terms simply of deviant motivation as
such as we have already argued that it must be wrong to define
it in terms of deviant behaviour as such. Certainly deviance
of motivation cannot by itself constitute an excuse for any
conduct in which that motive is expressed. As Lady Wootton
put it, in exactly the present context: 'It is by no means self-
evident that the physician's yearning for valueless porcelain
figures is inevitably stronger or more nearly irresistible than
the poor man's hunger for a square meal or for a packet of
cigarettes.' ss
Furthermore not only will the definition of 'mental disease'
in terms of motivational deviance make mental disease cultur-
ally relative in a way in which physical disease is surely not,
but it may also introduce into some of the disease labels then
proposed a curious factor of built-in obsolescence. For if for
instance those old favourites 'kleptomania' and 'pyromania' are
to be defined as in effect 'thievery and incendiarism for which
68 CRIME OR DISEASE?

there is no motive with which we can sympathise'; then that

self-same sympathetic attention which we are required to give
to the kleptomaniac and the pyromaniac as the patients of
diseases must tend progressively to disqualify whatever we had
initially been inclined to call kleptomania or pyromania. For
we shall then argue - as anyway we could, and surely should,
have argued before- that we all know perfectly well what it is
to want something. Of course his wants strike most of the rest
of us as very queer. But then no doubt there is some of what
we want which would not appeal to him. So we can, and do,
sympathise. The situation thus becomes like that in the story
of the eighteenth~century landscape architect, who was
labouring to impress a reluctant prospect: 'One quality I
try to give to all my work is, unexpectedness.' 'Oh yes,' his
interlocutor responded, 'and what is that called after your
clients have got used to it?'

*
I I In Section g paradigms were provided of conditions
which have been, and clearly should be, rated as mentally
diseased. The paradigms of those which have been, but
equally clearly should not be, so rated are all and typically
conditions where mere deviance, whether of behaviour or of
motivation, has been accepted as sufficient to warrant such
classification. Traditionally the dimension of deviance which
psychiatrists have been most inclined in this way to favour, or
to disfavour, is the sexual. Thus in I863 the then Director of
the Edinburgh Royal Asylum listed satyriasis and nympho-
mania along with insanity of masturbation: the last was of
course the supposed independently identifiable consequence of
juvenile excess; whereas for the two former conditions the
criteria appear to have been either the supercharged desires
themselves, or the above Kinsey-par frequency of performance
itself. (Although both these conditions could be described as,
in a very literal sense, clinical, one may perhaps be permitted
to wonder, parenthetically, how often any psychiatrist nowa-
days opens his consulting-room door to discover a voluntary
patient himself complaining of any such complaint?) 86
Twenty years later Kraepalin, whose Textbook was to become
for several decades standard, included 'contrare Sexualemp-
DISEASE AND MENTAL DISEASE 6g
findung' in his first Compendium as- along with idiocy, cretinism
and feeble-mindedness - one of several 'States of psychological
weakness'. In I 887 in the first edition of his Short Textbook the
same conditions are listed as 'Developmental abnormalities'.
Between the 693-page fourth edition of r8gr and the 8rs-page
fifth edition of I8g6, Kraepalin's work finally crossed the line
which - even in Germany - separates a Short Textbook from a
Textbook. In the resulting Textbook we find that 'Psychopathic
conditions (degeneracy, insanity)' include the now familiar
'contrare Sexualempfindung', although at last glossed as
'(psychic hermaphroditism, homosexuality)'. Much later,
at the end of the Second World War, the United States
Veterans' Administration in its Standard Classification, under
the general heading 'Character and Behavior Disorders' and
the subheading 'Pathological Personality', gives as items four,
five and six respectively, 'Inadequate personality', 'Anti-social
personality', and 'Sexual deviate'. Even later still, in 1952, the
American Psychiatric Association keeps up the bad work by
listing 'Sexual deviation' in its official Diagnostic and Statistical
Manual of Mental Disorder: all such nonconformity is counted
as a form of 'Sociopathic personality disturbance' -along with
anti-social reaction, alcoholism and drug addiction. 87
This will not do. For unless 'mental disorder' is to be con-
strued here, perversely, as simply equivalent to 'nonconformity
in tastes or behaviour', sexual deviation cannot be put down as
a kind of mental deficiency or mental disease. There is surely,
at least typically, no incapacity by which the deviant can be
distinguished from the straight. Those homosexual sexual re-
lations between consenting adults in private, which used in a
less enlightened period of the English public law to be crimes,
could not take place at all if the apparatus were not in working
order; and even the exclusive homosexual is presumably as
able, albeit as disinclined, to engage in heterosexual inter-
course as the comparably exclusive heterosexual is able, yet
not willing, to undertake any homosexual endeavour. Nor is
there any reason to believe that the expression of their respec-
tive inclinations in what Hollywood advertisers used - before
the four-letter revolution -to call 'acts of love' is any more, or
any less, compulsive in the one case than in the other. The gift
of continence would seem to be equally available to both; and
equally unacceptable. 88
70 CRIME OR DISEASE 1

Certainly, as a character trait, homosexuality is not under

the immediate control of the subject. But then neither, for
exactly the same reason, is heterosexuality. No doubt there are
many homosexuals who would like to change their sexual
tastes; although the number of those who are thus themselves
complaining of their putative complaint must surely be enor-
mously inflated by the addition of members of the very different
class of those who are not so much girding at their homo-
sexuality itself as wanting to remove the occasion of more
intrinsically disagreeable, socially imposed disadvantages. But
where the homosexual has no desire to alter his condition,
as such, there would seem to be absolutely no scientific basis
for putting him down as mentally diseased. Writing of 'the
inverted' back in I905, Freud made the crucial distinction:
'Some take the inversion as a matter of course, just as the normal
person does regarding his libido, firmly demanding the same
rights as the normal. Others, however, strive against the fact
of their inversion and perceive it as a morbid compulsion.' 8 9
Before deciding whether the condition of these others is, in a
strict and meaty sense, morbid, we have to ask whether the
resulting homosexual desires are peculiarly irresistible. If, and
where, and in so far as, they really are; then perhaps the condi-
tions of those, but only those, homosexuals who are indeed thus
affected can be admitted as mentally diseased. The analogy will
presumably be with alcoholics and hard drug addicts; although
even such genuinely compulsive homosexuals will not, like the
alcoholic or the hard drug addict, also be on a road to physical
ruin.
But where even undesired homosexual desires are not
peculiarly irresistible, then the subject's condition would seem
to be strictly on all fours with that of many a Christian celibate
longing to be rid of his wholly heterosexual cravings. The
intellectual temptation here, a temptation to which Freud
himself was not entirely immune, is to take it that biological
structure is somehow normative; and hence to urge that homo-
sexual sex must be, because unnatural, diseased. 9o Even if
homosexual activities were always wrong, and even if this
conclusion could be validly inferred from purely biological
premises, that would still not be enough to show these dis-
favoured activities to be symptoms of a disease. For, as I have
argued repeatedly, 'mental disease' cannot properly be defined
DISEASE AND MENTAL DISEASE

in terms of either disfavoured behaviour or disfavoured In-

clinations as such; and without benefit of incapacity.

*
I2 My second example is malingering. Since this is some-
thing which in Section 4 of the present Part I urged that genuine
disease is essentially not, it may be suspected that I have
fabricated a man of straw. But no: in fact it was discovered,
not invented; and its special value to us is as a memorably
bizarre specimen of what can - and does - result from letting
talk of mental disease lose touch with the physical original.
One source is an article, called simply 'Malingering', written
by Dr K. R. Eissler on the basis, we are told, of his experiences
as a psychiatrist with the United States Army during the Second
World War: 'It can rightly be claimed that malingering is
always the sign of a disease, often more severe than a neurotic
disorder because it concerns an arrest of development at an
early phase. It is a disease which to diagnose requires particu-
larly keen diagnostic acumen. The diagnosis should never be
made but by the psychiatrist. It is a great mistake to make a
patient suffering from the disease liable to prosecution ... .' 91
Suppose that the first of these four statements were true, its
truth would remove any foundation which there might other-
wise have been for the second and the third. For wherever
there really is an invariable sign of any disease; then there
cannot be any difficulty in the diagnosis - other of course than
whatever difficulty there may be in recognising that sign itself.
Then again, in so far as this particular sort of sign genuinely
is present, the presence of that new disease to which it sup-
posedly points so infallibly could scarcely constitute a sufficient
warrant for the fourth and final statement. For, in the words
which concluded Sir James Fitzjames Stephen's account of
the three rules proposed to replace the McNaghten two, 'an
act may be a crime although the mind of the person who does
it is affected by disease, if such disease does not in fact produce
upon his mind one or other of the effects above mentioned in
reference to that act.'9 2 But, since the symptomatic malingering
is by the hypothesis genuine, the disease cannot be preventing
the agent: either '(a) from knowing the nature and quality
of his act; or (b) from knowing that the act is wrong; or,
72 CRIME OR DISEASE?

(c) from controlling his own conduct ... .' It cannot therefore
be producing 'one or other of the effects above mentioned'.
There remains the instructive question of what such a
disease could consist in, Since it is apparently undetectable by
anything save the most penetrating psychiatric analysis its
severity cannot involve immediate suffering or present disable-
ment: we need no specialist help simply to discover our aches or
our aphasia. So it has to be a matter of what the future has in
store. What needs to be, but is not, established is that the
malingerer (not even but rather especially) if undetected, will
come to a bad end. It is in this context irrelevant to the point
of frivolity to appeal only to a hypothetical past with virtually
indiscernible current consequences- 'an arrest of development
at an early phase ... which to diagnose requires particularly
keen diagnostic acumen'. 93
Yet Dr Eissler is no lonely and isolated eccentric, weaving
moonbeams from some private lunacy. For one of the most
distinguished psychiatrists in North America, Dr Karl Men-
ninger, is prepared to maintain as the established view of his
profession that malingering is itself a mental disorder:
There is another type of personality deformity which is so
ancient and classical, so commonly approved to be prevalent,
and yet so rare, that we must list it out of sheer curiosity. It
is the compulsive deception represented by the feigning of
disease. Curiously enough the individual who does this, the
malingerer, does not himself believe that he is ill, but tries to
persuade others that he is, and they discover, they think, that
he is not ill. But the sum of all this, in the opinion of myself
and my perverse-minded colleagues, is precisely that he is
ill, in spite of what others think. No healthy person, no
healthy-minded person, would go to such extremes, and take
such devious and painful routes, for minor gains that the
invalid status brings to the malingerer.94
No one whose military career was made at a level less strato-
spheric than that traversed by Dr Menninger in the Second
World War could, surely, bring themselves to believe that the
rewards of successful malingering must always be, compared
with the effort involved, minor. Yet that is not the most funda-
mental objection. For even if the straight majority ·who
reported for duty found as much difficulty in empathising with
the delinquents and the deviants as he and his 'perverse-minded
DISEASE AND MENTAL DISEASE 73
colleagues' apparently do, that would still not justify their
inclusion of malingering in the medical category of disease.
However, were all malingering in fact compulsive, then this
categorisation would be perfectly correct. Connoisseurs of the
paradoxical will relish the thought that this would make mental
disease impossible to sham: ifyou want to seem to have it then,
necessarily, you must actually have it. For since, by the
hypothesis, all malingering is compulsive, any performances
which anyone intends - and even perhaps uninstructedly
believes - to be pseudo-symptoms must nevertheless in fact be
genuine compulsive actions; and to be afflicted by these is,
paradigmatically, to be mentally diseased. However the
incredible premise, from which this preposterous conclusion
is derived, is itself supported only by appealing to that original
disease classification which is itself here in dispute. Certainly
if malingering really were (the expression of) a mental disease
this would have to involve some compulsions or inhibitions
somewhere. But to show that it in fact is we should need some,
indeed much, direct and independent evidence. Instead we
are offered only one more variation upon a by now familiar
theme. In the background there is the constant general assump-
tion that delinquency or even mere deviance either is, or ought
to be regarded as, an expression of mental disorder. In the
foreground we have a particular claim about a particular
complaint, supported in effect by nothing more than the
insistence that the delinquency or the deviance itself constitutes
the criterion of the real presence of the postulated mental
disease.
*
I3 My third example is psychopathy. This has been defined
as 'a mental disease which develops before or during puberty,
caused by inherited predisposition, or by acquired personality
deviation due to psychic or somatic factors or both, which, in
turn, cause superego deficiency; it is characterised by stereo-
typed deviations in the moral, social, sexual and emotional
components of the personality, without intellectual impairment,
psychosis or neurosis, with lack of . . . insight or ability to
profit from experiences, and is of lifelong duration in almost
all cases.'9s The Royal Medico-Psychological Association
offered a very similar account in their evidence to the Royal
 74 CRIME OR DISEASE 1

Commission on the Law Relating to Mental Illness and Mental

Deficiency, which reported in I957· Psychopaths, they said,
are persons whose 'daily behaviour shows a want of social
responsibility and of consideration for others, of prudence
and foresight and of ability to act in their own best interests.
Their persistent anti-social mode of conduct may include
inefficiency and lack of interest in any form of occupation;
pathological lying, swindling and slandering; alcoholism and
drug addiction; sexual offences, and violent actions with little
motivation and an entire absence of self-restraint, which may
go as far as homicide. Punishment or the threat of punishment
influences their behaviour only momentarily, and its more
lasting effect is to intensify their vindictiveness and anti-social
attitude.'9 6 (By specifying not psychopathological but only
'pathological lying, swindling and slandering' the Association
just, if only just, avoids the most glaring circularity.)
All this, as another expert witness admitted later, makes the
term 'psychopath' as here expounded substantially equivalent
to the expression 'moral defective', as introduced and defined
in the Mental Deficiency Act of I 92 7; except that there is no
firm claim that a psychopath must be intellectually incompe-
tent. 97 So it is not surprising that the Mental Health Act of
I 959, which followed the recommendations of this Royal
Commission, provided that, for the purposes of the Act,
' "psychopathic disorder" means a persistent disorder or
disability of mind (whether or not including subnormality of
intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the patient... .' But the
definition in the Act ended significantly, although in the face
of the final clause of the first account just quoted perhaps also
optimistically, 'and requires or is susceptible to medical
treatment'.
If we ignore for the moment that last hope, what is remark-
able about all three definitions is the lack of any good reason for
according to the condition as specified the status of a disease.
For, as I have been insisting all along, 'The core of illness is
victimisation. . . .'98 But my superego deficiency is not, like
my toothache, bound to make me suffer. It is, immediately and
in the first instance, other people who suffer from my unrelia-
bility and my unscrupulousness. So in so far as this deficiency
is in any way at all my misfortune it must be indirectly and
DISEASE AND MENTAL DISEASE 75
secondarily, less universally and reliably, and perhaps only
in so far as the others have taken effective steps to protect
themselves. Nor, as was similarly suggested in considering
Erewhon back in Section g of Part 1, are my dispositions to
'pathological lying, swindling and slandering' conditions
which I can be presumed to wish to have relieved.
Consider for instance the description, from a presentation
cited earlier, of the 'young agile, intelligent psychopath who
has already killed while absconding from a Borstal Institution,
is preoccupied with ideas of escaping, has seriously assaulted
members of the nursing staff, and is cheerfully open in his
preparedness to kill again in the course of escape'. 9 9 There is
here absolutely no hint of any suffering or incompetence on
the part of the 'patient'; and his own attitude towards the
treatment to which he is compulsorily subject is surely made
sufficiently manifest by his expressed willingness to kill anyone
who stands in the way of his escape from Broadmoor.
As has been remarked by others previously, albeit with little
apparent effect, psychopathy and the psychopathic personality
thus seem to provide paradigm cases of the 'pious perjury' by
which a supposedly excusing condition is more or less openly
defined in terms of precisely that behaviour which it is then
supposed to excuse. But the correct morals have not always
been drawn. Lady Wootton for example, robust as ever, speaks
of the psychopath as 'in fact, par excellence, without shame or
qualification, the model' of this 'circular process'. Yet the
moral which she draws is that 'the psychopath makes nonsense
of every attempt to distinguish the sick from the healthy
delinquent by the presence or absence of a psychiatric syn-
drome, or by symptoms of mental disorder which are indepen-
dent of his objectionable behaviour.' 1 oo
This is an extraordinary conclusion to draw from these
observations; and that this is the conclusion which she does
draw is explicable only by reference to her own proposed
ultimate conclusion. This ultimate conclusion is: that we are,
and ought to be, moving towards 'abandoning the concept of
responsibility'; that we are, that is, and ought to be, shifting
the 'emphasis in the treatment of offenders away from considera-
tions of guilt and towards choice of whatever course of action
[appears] most likely to be effective as a cure in any particular
case'. 101 Being an active and experienced magistrate, and no
 CRIME OR DISEASE?

sort of psychological visionary, Lady Wootton proceeds almost

at once herself to insist upon the likelihood that the claims of
reform and deterrence, of cure and prevention, will be found
in practice to conflict. If this is so, and it surely is: 'It is futile
to uproot one blade of grass by methods which encourage the
proliferation of others.' 1 o2
What is extraordinary about her immediate conclusion- and
it is this which is our immediate concern - is that it neither
follows nor even seems to follow from the observations. For
where the term 'psychopath' is employed in the way indicated,
there psychopathy quite clearly cannot be a disease. It is there-
fore: not the existence of such psychopaths which is making
'nonsence of every attempt to distinguish the sick from the
healthy delinquent'; but rather the muddled persistence of
some psychiatrists and others, who will go on rating both this
and any and every other variety of disfavoured deviance as a
mental disease. The true moral to be drawn here about psycho-
pathy is that given in a statement quoted with approval by
Lady Wootton herself a few pages earlier: 'It would seem ...
that until the category is further defined and shown to be
characterised by specified abnormality of psychological func-
tions, it will not be possible to consider those who fall within
it to be unhealthy, however deviant their social behaviour.' 103
Both words in the expression 'psychological functions' need
to be stressed here: for unless the malfunctioning were, either
in its origin or in its nature, psychological the disease could
not be accounted mental; and unless to have the functions
were to be construed as possessing capacities rather than being
characterised by dispositions, there would be no reason to pick
out the abnormality as a disease. To satisfY the necessary
condition just laid down it would not be sufficient simply to
meet the objection that ' "Psychopathy" is . . . a term like
"lumbago", which purports to be a diagnosis but is in fact
only a name for the symptoms.' To meet that objection it
would be enough to find any way at all 'of identifying psycho-
paths independently of their behaviour' qua psychopaths.
We should therefore, on that lesser task, be well away: either
if we could point to studies suggesting 'that many psycho-
paths have abnormal electroencephalograph waves, showing
a predominance of large slow waves, like those of young
children' ; 104 or if we could discover some other behavioural
DISEASE AND MENTAL DISEASE 77
characteristic, logically independent of all those involved in the
definition of 'psychopath', which is as a matter of contingent
fact shared by all and only those who are, in the sense specified,
psychopaths.
But that would not necessarily get us very far towards
establishing that psychopathy, so construed, is after all a
disease. It is important to see exactly why. The temptation is
to recall how for instance in 1822 Bayle showed that progressive
paresis is a disease of the brain, or how in 1861 Paul Boca found
lesions in the cortex correlating with certain forms of aphasia;
and then to mistake it that the discovery of aberrant brain
waves must therefore be sufficient to show that psychopathy
is an authentic disease. But the cases are totally different. For
there was no question but that progressive paresis and these
kinds of aphasia were diseases; whereas what has to be shown
here about psychopathy is, not that it has some physiological
basis, but that it is a disease. No one doubts but that the aphasia
patient, unlike the Trappist monk, is the victim of a speech
disorder. But there are those who, whether rightly or wrongly,
do doubt whether - or at any rate how completely - the
scandalously anti-social conduct of the psychopath is truly to be
attributed to his incapacity, as opposed to his disinclination,
to behave better. In order to establish, therefore, the desired
conclusion by reference to some physiological condition or
phenomenon, it is necessary to show, not only that that condi-
tion or phenomenon is suitably correlated with psychopathy,
but also that it is relevantly disabling.
For the present quite particular purpose it is not helpful to
argue - or, more likely, simply to assume - that, absolutely
generally, if any conduct has physiological sufficient conditions,
then what was done could not have been something which
could have been done, or not done, at will. This is certainly
a seductive notion, which we shall have to examine in Part 111.
But it is far too powerful to introduce into a limited and regional
conflict. For if it really is the truth, and if too the physiologists
continue to make the sort of discoveries which they have been
making, then the eventual implication seems to be: not,
particularly, that the psychopathic behaviour of those pre-
viously identified as psychopaths in fact consists in- as it were -
compulsive or reflex actions, and hence that psychopathy can
after all be put down as a mental disease; but rather, generally,
 CRIME OR DISEASE?

that the whole notion of things being done or not done at will
- and hence all those other notions too which presuppose this
contrast- in fact lack any application at all. To show this, if it
could be shown, would not be to establish the existence of one
more species of mental disease, but instead to unleash a total
categorial catastrophe.
So long however as the term 'psychopath' continues to be
so used as to make psychopathy not really a mental disease,
we ought to recognise ' "psychopathic" and "wicked" as
belonging to two distinct sets of terms which are no more
mutually exclusive than terms dealing with physical beauty
and those dealing with physical health'. 105 Suppose psycho-
pathy were a mental disease, we could not say that the (uncon-
trollable) behaviour resulting from it was either wicked or - at
least under the Durham Rule - criminal. But since it is not, we
may say, without contradiction and truly, that there is some be-
haviour which is both psychopathic, and wicked and criminal.

*
14 The conclusion of Section 13 in no way prejudices
the possibility, notwithstanding that psychopathy as presently
understood is not in fact a mental disease, that we may never-
theless decide to regard it as one, to treat it as if it were.
Indeed, for reasons indicated in Section 1 of Part 1, precisely
this conclusion is presupposed by the very making of any such
suggestions, strictly interpreted.
One good reason why psychopaths convicted of serious
crimes should be compulsorily committed to mental hospitals
rather than to prisons is given by the last statement in the
quotation from the evidence of the Royal Medico-Psychologi-
cal Association: 'Punishment or the threat of punishment
influences their behaviour only momentarily, and its more
lasting effect is to intensify their vindictiveness and anti-social
attitude.'
But although good this is not of course an indefeasibly good
reason. Even looking no further than those three initial quota-
tions, we may object that the phenomenon described in the
first scarcely satisfies the final requirement of the third; since,
if psychopathy 'is of lifelong duration in almost all cases', we
cannot easily say that it now 'requires or is susceptible to
DISEASE AND MENTAL DISEASE 79
medical treatment'. 106 This objection however could be under-
mined at any time by the advance of the art. Another, which
we have just heard from Lady Wootton, and which is too often
ignored by the prophets of psychiatry, is likely to be a more
permanent obstacle: 'It is futile to uproot one blade of grass
by methods which encourage the proliferation of others.'
If the psychopathic offender is to be committed to mental
hospital rather than to prison, not because he is the victim
of mental illness, but simply because he is incorrigibly recalci-
trant, then this must surely have its effects upon all the rest
of us actual and possible criminal offenders. Certainly it is
impossible to determine apriori what all these effects will in
fact be; and surely too our reactions will be considerably
influenced by how protracted and how disagreeable the
psychiatric treatment is (believed to be) ; compared with the
traditionally penal alternative. But the theoretical crux, which
is also of the most fundamental practical importance is, that
the proper primary purpose of a penal system is: neither
retribution on offenders; nor the reformation or cure of
offenders; but rather the prevention of offences.
It is therefore wrong to focus on depressing rates of recidi-
vism, and then from these alone to infer - in words which have
become again a catch-phrase - 'that the whole system has
failed'. Obviously it has failed either to reform or to deter those
who, as the figures show, keep coming back for more. But any
such figures are inherently incapable of showing either that
the penal system has failed, or how well it is succeeding, in
its most vital and fundamental task of maintaining by its
silent presence the general framework of law and order. The
system as a whole is in this respect like sea-power, in the
description of Admiral Mahan: 'Those far distant storm-
beaten ships, upon which the Grand Army never looked,
stood between it and the dominion of the world.'
This most fundamental function of a penal organisation is
frequently forgotten by the prophets of orthopsychiatry. Thus
Dr Karl Menninger, whom we have met twice before, presses
the general thesis that all crime should be treated as disease,
and all criminals as patients: 'I would say that according to
the prevalent understanding of the words crime is not a dis-
ease . . . . It should be treated, and it could be; but mostly it
isn't.' 107
8o CRIME OR DISEASE 1

A few pages later he writes, with an emphasis reminiscent

of a much-quoted dictum ofF. H. Bradley: 'We have admitted
that most criminal behaviour is not a disease ... crime is still
a wilful and avowed breaking of the rules, a flagrant dis-
obedience, a flaunted infraction.' This shows that Dr Men-
ninger's contention here is indeed what I have just said that it
is; and that he is not recklessly embarking upon a universalisa-
tion of what he is elsewhere willing to urge, so unbelievably,
about malingering. He even goes on to admit - albeit in a
manner strongly suggesting that he is preparing to backslide -
a crucial difference which many psychiatrists are remarkably
reluctant to notice: 'Most recognised illnesses, however dis-
agreeable to society, involve some conspicuous suffering or
disability' for the subject. The propensity for committing crime
does not look like suffering, nor does it cause any obvious
disability' .ros But in his conclusion Dr Menninger peers forward
towards a rosier future: 'When the community begins to look
upon the expression of aggressive violence as the symptom of an
illness, or as indicative of illness, it will be because it believes
doctors can do something to correct such a condition. At present
some better informed individuals do believe and expect this.
However angry or sorry for the offender, they want him
"treated" in an effective way so that he will cease to be a danger
to them.' 109
It is certainly sad, even though it is perhaps also realistic,
to think that, if 'the community' became persuaded that some
particular sort of delinquent disposition could be straightened
by whatever are from time to time to be accounted psychiatric
means, then it would immediately infer that that disposition
must be 'the symptom of ... illness, or ... indicative of illness'.
It is sad, because this immediate inference would not be
correct. Suppose we take the very strongest case, by construing
'psychiatric means' as being as exclusively physiological as
anyone could wish. Now, unless the seductive but potentially
catastrophic notion of Section I 3 happens to be true, there
seems to be no inconsistency in saying of some behavioural
disposition: both that it could be inhibited by the agent
himself, if he so wished; and that it could be corrected by some
direct physiological manipulation, if only there actually was
someone who knew enough physiology, and possessed sufficient
manipulative skill. Since the inference is supposed to be
DISEASE AND MENTAL DISEASE 8I
immediate, no one can be entitled here to help themselves to
'the seductive notion' as a further premise; and so we may for
the moment ignore that parenthetic proviso.
Significantly, when Dr Menninger turns from the unen-
lightened many of 'the community' to the few 'better informed
individuals', the concern is entirely for the transformation,
by whatever may be shown to be the most effective ways, of
the actual offender: 'so that he will cease to be a danger to
them'. This narrowness of view, which is altogether typical
both of Dr Menninger himself and of many other psychiatrists
discoursing on criminological themes, is no doubt in large part
an expression of their professional training: doctors, or at least
doctors within the Hippocratic tradition, are taught to concen-
trate upon individual patients; and to devote the~nselves to
helping these patients as sick individuals.uo
No doubt too it is another manifestation of that same train-
ing that when, as here, it is proposed that something which is
not in fact disease should be treated as if it were, or when, as
in some of the cases indicated in Section 8 of the present Part,
this is perhaps actually happening, the doctors concerned
should be so slow to appreciate how radically such ongoings
must transform traditional concepts of the function of the
doctor and of the doctor/patient relationship. For there most
surely and obviously is a world of differences: between on the
one hand acting as a patient's agent, in order to help him - as a
professional man serves his client - to get rid of a disease,
which he sees to be bad for him, and which he himself wants
cured;m and on the other hand acting as the agent of some
collective, in order- by employing knowledge which in general
we do not in fact as yet possess - to change someone in
directions in which he may not himself wish to be changed,
and in which it is not necessarily, either by him believed to
be in his interests, or even actually in his interests, to be thus
changed. 112
A different reason why the prophets of psychiatry so often
find it hard to recognise the importance of deterring the non-
offender is that they are reacting against their own excessively
black picture ofthe old dispensation; and as usual the revolu-
tionary new order is in important respects conditioned by and
continuous with the old. Since, in the rather jaundiced view
to which they are inclined, the whole object of the exercise
 CRIME OR DISEASE<

under the old regime used to be to ensure that criminals should

suffer the just retribution for their crimes; under the new
dispensation the whole object of the exercise will become a
forward-looking attempt to transform offenders - and maybe
others too - into good citizens who will never again commit
offences. Both the supposed old and the proposed new share
the same indifference to what should be the primary, preventa-
tive, function of the whole penal system.IIJ
It is worth citing briefly two of many possible authorities
to show that such a blinkered concentration upon retribution
as the aim was by no means universal even in those dark ages
before we and enlightenment were born. The first is the great
Common Lawyer Sir Edward Coke, writing in the I 63os:
'The principal aim of punishment is, that others by his example
may fear to offend, ut poena ad paucos, metus ad omnes,
perveniat (in order that the penalty may touch a few, but the
fears thereof touch many).'II4 The second is F. H. Bradley,
examining 'The Vulgar Notion of Responsibility' in 1876.
No one has ever put more vehemently the basic moral point
that, while the right to punish is given always and only by the
committing of an offence, the nature and extent of that punish-
ment may, and indeed should, be determined partly or wholly
by considerations quite other than those of proportionate
retribution:
We pay the penalty because we owe it, and for no other
reason; and if punishment is inflicted for any other reason
whatever than because it is merited by wrong, it is a gross
immorality, a crying injustice, an abominable crime, and
not what it pretends to be. We may have regard for whatever
considerations we please - our own convenience, the good of
society, the benefit of the offender; we are fools, and worse,
if we fail to do so. Having once the right to punish, we may
modify the punishment according to the useful and the
pleasant; but these are external to the matter and cannot
give us the right to punish, and nothing can do that but
criminal desert.us

*
I 5 Section 14 insisted that any proposal to treat crime
as an expression of mental disease, where in fact it is not, must
take account of two very different sorts of consideration. First
DISEASE AND MENTAL DISEASE

the prime proper function of a penal system is neither, partic-

ularly, to reform offenders nor to deter them from recidivism.
It is, generally, to prevent offences. Second the offenders who
are thus by the hypothesis not in fact mentally diseased have
not, presumably, themselves asked for psychiatric or any other
treatment. So there is no good reason to believe that such treat-
ment must be in what they think are - or even what actually
are- their interests.
The penal system may be, it was there suggested, still
fulfilling its indispensible primary function even though - in-
deed perhaps especially when - it is rare for citizens to con-
sider committing offences, only to be deterred by fear of
punishment. For the crucial questions of effectiveness here are
hypothetical. It is not: 'What does lead me to act or to abstain,
as things now are?'; but rather, 'What would I have been
doing had I not been raised within the protections and re-
straints of this system?'; and 'What should we all very soon find
ourselves suffering, and doing, if the penalty enforced frame-
work of law and order were either to be dismantled or to
collapse?' I I 6
To the second sort of consideration urged in the previous
Section I4 two points made much earlier are again relevant.
First, as was said first in Section g of Part I, it cannot be taken
for granted that what the psychiatrists will do to offenders will
always be less disagreeable to the offenders than whatever
might be the going, conventionally penal, alternative.
Second, as was indicated in Section 8 of the present Part,
although it sounds, and may even be, more enlightened to
provide treatments adjusted to each particular individual
rather than to inflict standard general penalties determined
largely or wholly by the nature of the offence; such progressive
proceedings have, from the point of view of both offenders and
possible offenders, one enormous disadvantage. This disadvan-
tage is that, whereas the typical penal sentence is for some
limited term and probably reducible by good conduct, to be
instead detained at the psychiatrist's pleasure is to be im-
prisoned indefinitely.II7
Two citations may perhaps be a salutary help in driving
these rather unfashionable points home. The first is from the
decision ofJudge RichardS. Heller in the frightful and, I hope,
unparalleled case of Dennison v. State (Ig66). The New York
 CRIME OR DISEASE r
Court of Claims awarded $Ioo,ooo to Stephen Dennison, who
had at the age of sixteen stolen $5 worth of sweets, and who had
in consequence been forcibly detained in mental institutions
for thirty-four years: '. . . the hospital records repeatedly
described claimant's behaviour as paranoid, or in lay terms,
that he had delusions of persecution. If a person is, in fact,
being treated unjustly or unfairly, the fact that he perceives,
resents and reacts to the inequity could hardly be regarded as
competent and conclusive evidence of paranoia or paranoid
tendencies .... In a sense, society labeled him as subhuman ...
insane, and then used the insanity as an excuse for holding him
indefinitely.' us
This nightmare case does most memorably underline the
point about the indeterminacy of such therapeutic sentences;
and it can be suggestive in other ways too. Yet no doubt it was
the botched work of some very bad psychiatrists. The second
quotation comes from the Report, mentioned in Section 2 of
the present Part, of the Scientific Committee of the World
Federation for Mental Health: 'The term "brain-washing"
has ... been applied with unfortunate connotations to psycho-
therapeutic practice by those who are hostile to it. We con-
sider that the lesson of this needs to be taken to heart by
all those who are responsible for securing psychiatric treat-
ment of non-volitional patients. The use of compulsion or
deceit will almost certainly appear, to those who are un-
friendly to or frightened of the aims of psychotherapy, to be
wicked.' II9
It is one thing, and perhaps licit or even sometimes impera-
tive, for a doctor to tell confident falsehoods to a patient who
does not wish to hear discouraging truths. It is, whether wicked
or not, quite another for Guardian psychiatrists to employ such
'noble falsehoods' when these are to be true lies told to help
cure false diseases.Izo Brain-washing is a different thing again.
There are some, and surely will be many more, possible treat-
ments which it would not merely appear to be, ,but be wicked
to inflict upon what the Committee so prissily describes as
'non-volitional patients'. Some of these may, like electro-
convulsive therapy or the use of the drug aminazin, raise
constitutional questions about 'cruel and unusual punish-
ments'; at least in countries so fortunate as to possess old-
fashioned Constitutions, enforcibly independent of the day-to-
DISEASE AND MENTAL DISEASE

day wishes of the Party and the Government. The theoretical

interest for us however lies elsewhere.
The expression 'psychiatric treatment' can cover an enor-
mous variety of ongoings: from purely verbal transactions at
one extreme, talk by a couch or even across a table; up to and
including at the other extreme brain-surgery and dosing with
drugs. The legitimate anxieties about brain~washing arise
about treatments of the latter kind; especially if these are to be
enforced upon people who, though not perhaps suffering from
any genuine mental disease, must certainly be in this most
important respect victimised. It will not do, as the Committee
does, to discount all such anxieties as the inconsiderable
verbalisings of those 'unfriendly to or frightened of the aims
ofpsychotherapy'. By doing this they are making the same kind
of mistake, and for fundamentally the same reasons, as those
who held Stephen Dennison in various psychiatric prisons for
four-and-thirty years. They are, that is to say, registering what
is said: not as an argued objection, which has to be met; but
merely as a symptomatic utterance, which constitutes here
only an obstacle to be circumvented.
For suppose that it became possible simply to overpower
someone, to strap him to the operating table, and - quite
painlessly, employing whatever anaesthetics were medically
suitable - to implant tastes to taste; to excise habits as indi-
cated; to establish beliefs as required; and even to determine
particular choices at will. Such a supposition may seem, in
the present state of the art, to be far-fetched and purely
speculative. Yet it involves only an extrapolation from what
has long been familiar. Already in the nineteenth century
William James could draw on many cases in which drastic
personality changes had resulted from brain injuries. Twenty
or more years ago reports were coming in of the effects of that
notoriously hit or miss operation prefrontal leucotomy: of
the woman for instance who was cured simultaneously, not
only of her suicidal depressions, but also of her liking for classical
music, and of her religious beliefs; which pre-operant illusions
she now, to the din of pop, rejects as humbug.I2I
Still more interesting to us is a claim made on behalf of the
neurologist Dr Harvey Cushing: 'The association centres
discharge into certain incito-motor centres, which are among
the best known regions of the cortex. . . . If we give them a
86 CRIME OR DISEASE 1

mild electric shock, as was first done by Dr Harvey Cushing,

with the consent of a patient, the subject moves his limbs, and
does so with a full sense that he is voluntarily performing the
action. This is quite different from the effect of stimulating
the motor nerves in the spinal chord, or nearer still to the
muscle. Then the patient merely feels his limb contract invol-
untarily.'122
Now to overpower someone, and to bring about a change in
him by any such direct physiological manipulation, would be
totally different from bringing about the same change: either
by persuasion; or by coercion; or even by the very same
physiological operations if performed at his own request. A
similar difference will be found also, although not often quite
so sharply marked, with many other less drastic psychiatric
treatments. The crux is that such direct and unrequested
physiological manipulation, however well-intentioned, how-
ever humane its methods, must be- as nowadays it is even by
some of its most outspoken advocates seen to be - an outrage
against the freedom and dignity of 'responsible and autono-
mous man'.I23 For it leaves its patient with no choice whatso-
ever as to how, or whether, he is to change or be changed. It
treats him as a thing, to be shaped at the psychiatrist's will; not
as a person, with the capability and the rights to make decisions
for himself. Some words from C. S. Lewis's onslaught upon
'The Humanitarian Theory of Punishment' are to the point:
'To be "cured" against one's will, and cured of states which we
may not regard as disease, is to be put on a level with those who
have not yet reached the age of reason, or those who never will,
to be classed with infants, imbeciles, and domestic animals.
But to be punished, however severely, because we have deserved
it, because we "ought to have known better", is to be treated
as a human person. . . . ' 124
We need to get absolutely clear just how wide the gulf here is.
Misleadingly we often say that we had no choice when what
we mean is, not that we had literally no choice at all, but that
we did indeed have a choice, but one in which all but one
of the available options could be ruled out immediately as
altogether unacceptable. Martin Luther for example was not
confessing to a sudden paralysis when he thundered his magni-
ficent protest to the Diet of Worms: 'Here I stand. I can not
other. So help me God.'I25
DISEASE AND MENTAL DISEASE

Much the same applies in the special case of acting, not of

one's own freewill, but under compulsion. The man who acts
under compulsion, unlike the man who has an irresistible
psychological compulsion to act, acts. He does have alterna-
tives. He may plead perhaps that he was compelled to open
the safe because 'Pretty Boy' Floyd was fingering the trigger
of his trusty Thompson; and fair enough. But of course he did
have a choice. He could, and, had it been a matter not of the
bank's money but of national security or ofloyalty to comrades
struggling against the Occupiers, he surely should have told
Floyd very firmly and rudely what he could do with that
machine-gun.
It is precisely and only because compulsion does in this way
still leave the agent with his choice that it can be reasonable
to require, as usually we do, that the seriousness of the threat
which is to be acceptable as the excuse of compulsion must be
proportionate to the gravity of the offence to be excused. Thus
our elder daughter's unwonted rudeness to her teacher is
abundantly excused by reference to the fact that a big and
nasty boy forced her to do it by threatening to spill ink over
her new dress. Yet a similar appeal on behalf of an adult would
be dismissed as a bad joke in a trial for grand larceny; while
the Nuremberg Tribunals did in fact rule that the certainty
that disobedience to orders would have been fatal was not
enough to expunge the guilt of helping to process people
through the ovens of Maidenek and Auschwitz.
All such cases are entirely different from that of the man who
is seized by main force; and then thrown, quite helpless,
through the window. Unlike the other man who - perhaps
under compulsion - jumps out of the window, the human
projectile is not as such an agent at all. Since he does not act,
he does not act either of his own freewill or under compulsion:
he really does, quite literally, have no choice. The unwilling
victim of direct physiological manipulation would be, in this
respect, like the human projectile. But his case would be, in
another way, far worse. The defenestrated man may after his
fall be able to pick himself up and walk away none the worse,
and none the better, for his experience; save perhaps for a few
cuts and bruises, and a grudge against the assailant bully boys.
But, in so far as the treatment has been successful, the other
unwilling subject must be to a greater or lesser extent a changed
88 CRIME OR DISEASE?

person. He may indeed be much improved; like another folk-

lore figure, some will recall irreverently, who had also been
exposed to radical surgery. Nevertheless the change in him will
not be a change which he wanted, or which he chose, or which
he made. Since even the fact that a change would be decisively
for the better is not a universally sufficient reason for effecting
it by coercion, it must be even less sufficient to warrant the
wholesale employment of this kind of irresistible personal
programming. 126
*
I6 Dr Harvey Cushing's demonstration demands separate
attention. For, although our reporter concluded his account
with the statement that 'The bearing of these facts on the
question of the Will is obvious', it is not equally obvious just
what those implications are. But what little can be said about
that within the tight limits of the present essay must wait till
Part 111. Here the immediate corollary is again to insist that,
that some human condition could be altered by psychiatric
treatment, is not a sufficient reason for saying that that condi-
tion is mentally diseased. This emerges most clearly when we
concentrate on all those treatments, realised or possible, to
which, if imposed upon 'non-volitional patients', the term
'brain-washing' might fairly be applied. It then becomes easy
to remember the general truth that for you to be able, whether
with or without my assistance, to achieve some result is no
guarantee that I could not, if I so wished, make it entirely on
my own. Still less is it any guarantee that that result is either
one which I want or one which would be in my interests.
Though obvious to us now, these truths are often overlooked:
' "I call this condition an illness just because there is a medical
treatment for it, which experience has shown to be effective" .' 12 7
The same unsound principle may be one of the foundations
of the commitment law of the Commonwealth of Massachu-
setts; with or without its equally unsound running mate, the
principle that disfavoured behaviour as such can properly be
a criterion for mental disease. For in that jurisdiction, appar-
ently, a man may be sent down for a stretch in a mental hospital
if the public psychiatrists testify that he 'is likely to conduct
himself in a manner which clearly violates the established laws,
ordinances, conventions, or morals of the community'. 12 8
DISEASE AND MENTAL DISEASE 8g
Since any promotion in Massachusetts of (what Roman
Catholics distinguish as) artificial birth-control has long been,
and at the time of writing remains, illegal, this illiberal and
preposterous law opens the zany possibility that some reck-
lessly conscientious body-doctor might, as a result of prescrib-
ing contraceptives, be confined in the custody of a group of
his colleagues, the public mind-doctors; there to remain until
such time as they shall succeed in straightening him to the line
laid down in the Encyclicals Casti Connubii and Humanae Vitae.
So far as I know this commitment law has never been applied
to such a person. But I can cite two actual cases from the same
state, which both show well how a diagnosis of either mental
disease or mental defect must necessarily devalue all behaviour
attributed to that cause.
The first is another instance of a woman taken in adultery.
It is reported under the heading 'Need of Closer Cooperation
between Courts, Psychiatrists, and Social Workers'; no doubt
in order to emphasise the distance travelled since New Testa-
ment days. The accused 'pleaded guilty, and was sentenced by
a district court to six months in the house of correction ... she
was examined, under the Massachusetts law, as to her mental
condition... .' The appointed experts reported: 'She seemed
absolutely without shame in talking of her past; seemed to lack
any true sense of moral decency .... She could "see no harm in
a woman's leading an immoral life unless she bore children".
Thought "there was no harm in a woman's supporting herself
by that means". According to Binet tests, she graded up to
7.8 years of age. It would seem from this history and from the
Binet examination that this woman is a menace to any com-
munity in which she might be living. In our opinion she is a
suitable case to be committed to a school for the feeble-
minded.'129
The diagnosis this time was not mental disease but mental
deficiency. Yet that makes the example none the less relevant
to illustrate the point that to accept any such diagnosis is to
commit yourself to construing the consequent verbal behaviour
of your patient not as a contribution to discussion but as so
much symptomatic utterance. The essential nature of this
clinical posture comes out in a manifesto by a leading British
Freudian. We must leave till Part III questions about the self-
destructive epistemological rashness of his statement: 'The
go CRIME OR DISEASE?

analyst must above all be an analyst. That is to say he must

know positively that all human emotional reactions, all human
judgements, and even reason itself, are but the tools of the
unconscious; and that such seemingly acute convictions which
an intelligent person like this possesses are but the inevitable
effect of causes which lie buried in the unconscious levels of
his psyche.' 130
Had the Massachusetts experts been prepared instead to
listen to this supposedly feeble-minded prostitute as a person,
they could scarcely have failed to notice that their own chosen
quotations provide no evidence whatsoever of either incompe-
tence or fecklessness. On the contrary indeed: for, although
square parents like myself would hate to see our own daughters
adopt such a way of life,I31 it cannot be denied that any
prostitute provides -in the strongest sense - a public service;
while this particular woman displayed a responsible attitude
to procreation contrasting most favourably with the doctrin-
aire fecklessness then and still encouraged by the laws of her
state.
The second case is that of James Cooper. On 20 April I957
he went to the apartment of his former fiancee Connie Gilman.
Before ringing the bell he took care to release the safety catch
of his automatic. When she came to the door, he fired nine shots
into her; which performance was, to no one's surprise, in-
stantly fatal. Cooper then went to the police to give himself up.
Asked whether he fired with intent to kill, he said: 'I fired to
blow her fucking head off. How many times do you want me to
tell you?' 132
The point about this forthright if somewhat coarse-spoken
young man was that, having done what he did, after full
deliberation, intentionally, and in the execution carefully, he
then most resolutely and inflexibly insisted that just this was
what he had done. Against every pressure from both the defence
counsel and the officers of the Commonwealth he rejected the
suggestion that he was or had been mentally diseased, and
hence in some relevant way incapable: incontinent, that is,
in the sense in which this is an infantile or a senile rather than
a playboy characteristic. In his final address to the court he
spoke with a direct and lucid brevity, which the expert wit-
nesses ought to have envied: 'It is my opinion that any decision
other than guilty, guilty of murder in the first degree, with no
DISEASE AND MENTAL DISEASE

recommendation for leniency, is [sic] a miscarriage of justice.'

The jury agreed. The judge passed sentence of electrocution.
But there were those who persisted in denying Cooper's right
to his own action, and to its legal consequences. Eventually
they succeeded in drumming up sufficient psychiatric opinion
to secure commutation to life imprisonment. Cooper then
hanged himself. No doubt this enabled Massachusetts to have
the last word: to insist - in impious perjury - that the balance
of his mind must therefore have been disturbed; and thus to
do what it still could to deprive Cooper posthumously of the
dignity of his final protest.
The first of these two cases -like that, in the previous section,
of the supposed paranoiac - underlined the point that a diag-
nosis of mental disease, whether correct or incorrect, and hence
whether rightly or wrongly, requires that we discount as merely
symptomatic the consequent verbal behaviour of the patient.
This second case brings out that the same diagnosis similarly
requires that all consequent behaviour be discounted. It is
not really the conduct of a person. It is, rather, something which
happens to a patient. These dehumanising implications are
very serious. So it is correspondingly important neither to
make nor to endorse the sort of diagnosis which warrants them
save where it in its turn is fully justified.
Of course there are situations in which there may be more or
less good and perhaps sufficient reasons for giving or seeking a
false diagnosis. In many jurisdictions for instance it may be
necessary for a woman who wants a legal abortion somehow to
persuade a psychiatrist to certify that to have the baby would
gravely damage her mental health. I cannot wish to discourage
either the disingenuous or the ingenuous exploitation of loop-
holes in such bad laws. Yet it should be recognised as one more
argument for reform that they assume that no woman once
pregnant may be excused childbirth duty unless she is, or would
become, psychologically incapable of coping.m And further-
more even the whitest of white lies is as a lie obnoxious.
What appears to be more ·'Common is the rendering of
dubious diagnoses for even more dubious political purposes.
Dr Thomas Szasz has offered good reason for challenging the
verdicts of mental disability handed down in the cases of David
Pratt and Ezra Pound. 134 The former was the gentleman farmer
who assassinated Dr Hendrik Verwoerd, Prime Minister of
 CRIME OR DISEASE?

South Africa. The latter was an American poet who during

the Second World War made broadcasts from Rome under the
auspices of his admired friend Benito Mussolini. In each case it
is easy to see why the very different authorities involved should
have wished to avoid the embarrassments of public trials,
possibly followed by executions; especially when this could be
done by means which simultaneously discredited the awkward
idea that Pratt and Pound might have acted from conviction.
The most recent, the most numerous, and perhaps the most
flagrant examples are however to be found in the Soviet Union.
Here the primary intention to discredit dissidents, especially
the more talented, is made manifest in the measures to secure
the complicity of the victims. Where in the more murderous
I930s the NKVD was charged with extorting confessions of
premeditated and sustained counter-revolutionary activity,
its latest successor, the KGB, may insist that if the patient's
sentence is to have an end he must first admit that his dangerous
thoughts or his brave deeds were the outcome of some mental
disability. Thus the geophysicist Nikolai Nikolayevich Sam-
sonov was required, and eventually compelled, to admit that
he was of unsound mind when he wrote his letter maintaining
that it was really Stalin himself who between I934 and I937
effected a counter-revolutionary coup. So too the medical
establishment of the Leningrad Special Psychiatric Hospital -
wholly emancipated from un-Leninist Hippocratic inhibitions
-have in their zeal to secure the desired recantation threatened
to employ aminazin (adding, considerately, that this could not
but aggravate their patient's real disease of the liver).I3s
Enough has surely been said in previous sections about the
general wrongness of making your criterion for mental disease,
not some sort of incapacity to behave, but actual disfavoured
behaviour. But more needs to be made of the particular case
where the incapacity in question is supposed to be a defect of
reason.
One difficulty, which has been touched already at the end
of Section IO of the present Part n, is that we speak of what a
man wants as reasons for his acting to satisfy these wants.
It can thus seem that anyone whose desires are not our desires
must when he acts be by that token acting without reason.
If we are not to build into our concept of mental disease
requirements of conformity, the only solution is to refuse to
DISEASE AND MENTAL DISEASE 93
accept that mere deviance in wants constitutes mental incap-
acity. It may be that through this and similar refusals we shall
be opening a gap between the concept of mental disease,
developed upon the analogy with physical disease, and the
much older notions of insanity and madness. Yet this cannot
be an objection. For it has always been obvious that even the
most ungenerous employers of the expression 'mental disease'
have been willing to apply it to many cases which were not
cases of insanity. So the only possibly new point is that there
may be some examples of insanity which are not examples of
mental disease. 1 36
For the same good nonconformist reason we must reject
the suggestion, entertained in Section 4 of Part 1, that extreme
imprudence might be taken in itself as a sign of psychological
disorder. For, in so far as prudence is a matter of both sound
calculation and studious pursuit of one's own interests, any
disinterested sacrifice must be imprudent. It was certainly
in the last degree imprudent for Muscovite dissidents to
demonstrate in Red Square against the 1968 reconquest of
Czechoslovakia. But since they did this with their eyes open,
knowing exactly what they were letting themselves in for, it
would be not just mistaken but indecent to put down their
principled bravery to a defect of reason.
The same argument of course applies equally to less admir-
able figures. In Part v of The Civilization of the Renaissance in
Italy Jacob Burkhardt describes: 'The thirst for blood on its
own account, the devilish delight in destruction . . . clearly
exemplified in ... Caesar Borgia, whose cruelties were certainly
out of all proportion to the ends they had in view. In Sigis-
mondo Malatesta, tyrant of Rimini, the same disinterested love
of evil may be detected. It is not only the Court of Rome, but
the verdict of history which convicts him of murder, rape,
adultery, incest, sacrilege, perjury and treason, committed
not once but often.'
At a less splendid level, the fact that George Smith offered
as his only reason for attempting to strangle a stranger the
inadequate avowal 'I wanted her necklace for my girl', is no
reason for attributing to him any defect of reason. But that he
was indeed thus defective begins to emerge when we learn of
his 'leaning a long ladder against the glass of the big window
in the third floor classroom, about to climb up it to see over
94 CRIME OR DISEASE~

the wall of the factory building next door, and failing to realise
that the window would have broken and thrown him down
three storeys to the school yard' . 137 He himself seems to have
appreciated this and other similarly unrecognised dangers once
his attention had been officiously drawn to them.
That last point is important. For we are in trouble the
moment any possibly disputatious vagary of belief is con-
scripted to serve as the crucial criterion. We have to know:
first that the beliefs in question - unlike the 'paranoiac delu-
sions' of Stephen Dennison- really are without foundation; and
second and much trickier that for the subject to persist in them
is to march well outside the undemarcated frontier of ordinarily
human cognitive fallibility. Whatever else may be unsure or
indeterminate here, it is clear that to fulfil this special function
the delusion must be subject to fairly direct and indisputably
decisive disconfirmation. There is perhaps no restriction other
than the requirement of erroneousness on the possible content
of delusions as such. But if we are to treat the diagnosis of
mental disease with the caution which the seriousness of its
implications demands, only peculiarly flagrant kinds can serve
as criteria. Most certainly it will not do to rest your case
upon such essentially ideological phenomena as the 'obsessive
reformist delusions' of the subject.IJS It is wrong in general to
take even an erroneous belief if not wholly indefensible as the
criterion of the presence of mental disease. The offence is
compounded in those particular cases where this is done
precisely in order that the diagnosis shall then in turn serve to
discredit the believer himself and, indirectly, his belief.I39
To all such attempts to misemploy the dangerous but neces-
sary notion of mental disease some angry words of Freud con-
stitute a proper answer. His biographer mentions a first grim
medical report upon the development of Freud's cancer: 'Many
years later ... I told him that we had discussed whether or
not to inform him... with blazing eyes he asked: "Mit wel-
chem Recht?"' -by what right?r4o
III Determinist Presupposi-
tions Cannot Disprove

I Part II examined the notions of 'Disease and Mental Dis-

ease'; and tried, among other things, to establish some para-
digms of what can and cannot be properly so described. It may
be objected that there are many actual and possible intermed-
iate cases in which, even where the clinical facts were not in dis-
pute, it would upon the principles there indicated be difficult
to decide whether or not to diagnose mental disease. That is
surely true. But it is also in such matters what is always to be
expected. The present essay cannot hope to be more than intro-
ductory, and the only sensible way to begin is by first getting
clear about the extremes and the principles. For the extremes
are what the marginal cases are intermediate between, and it
is of the general principles that the application problems are
application problems.
A far more serious objection is that the fundamental concep-
tions in terms of which I have tried to distinguish mental dis-
ease from mental health are pre- or even anti-scientific. All of
what little space remains must be devoted to this challenge:
'Free will - to a lawyer - is not a philosophical theory or a re-
ligious concept or a scientific hypothesis. It is a given, a basic
assumption in legal theory and practice. To the psychiatrist,
this position is preposterous; he seeks a clear operational defini-
tion of "free" and of "will" .' 14 1
These words come from Dr Karl Menninger's onslaught on
The Crime of Punishment. More significant, because reluctant, is
a statement made by Dr C. Ounsted of the Park Hospital for
Children, Headington, Oxford. He made it just after suggest-
ing - a brave and lonely voice in a colloquium of orthopsy-
chiatrists! - that children need, and even wish, to be treated as
accountable; and hence, on occasion, punished: 'The legal sys-
tem is based on the notion offreewill (illusion though it may be)
g6 CRIME OR DISEASE~

and we deny it at our peril. Although I hold that this notion

must be excluded from any scientific discourse, freewill forms
the only rock on which a sane structure of civil and criminal law
can be built. It underlies the law ofcontract as much as it justifies
the demand of "Guilty or Not Guilty" in criminal cases.' 14z To
complete the trio, the author of the book, Delinquency and Human
Nature, discussed in Section 4 of Part I, insists: 'Now I am well
aware of a very natural feeling that every delinquent is not "a
psychological case". From a broad social point ofview it would
not be healthy for bad behaviour to be popularly regarded, and
excused, as symptomatic of psychological disorder. But the most
commonplace of acts can be shown to be the outcome of many
years of complicated causation.' 1 4J
The challenge can be met; and met too in such a way as to
ease fears of general ruin were the actual scientific truth to be
disloyally leaked. The key is to start by attending to certain
differences, which are inescapably familiar to all human beings
in their daily experience; and then to distinguish these in theo-
retically and evaluatively neutral terms. They are, the differ-
ences between motions and movings, as distinguished in Section
4 of Part n. That some of our movements are in this sense mov-
ings is a fact so familiar and so undeniable that anything truly
irreconcilable with it must for that reason alone be forthwith
rejected. It cannot be undermined or overthrown- as David
Hume in his first Inquiry said of another distinction in the same
context - 'by any philosophical theory or speculation whatso-
ever.' (vm (ii))
The idea ofmovings, as opposed to motions, is essential to the
concept of action; which, as we saw in Section I5 of Part 11, is
itself involved in both terms of the untechnical distinction be-
tween acting under compulsion and acting of one's own free-
will. There is no difficulty at all in providing Dr Menninger
with the down-to-earth explanation which he demands. His
very words 'operational definitions' refer to possible movings
(or not movings); just as much as did his incautious reference
elsewhere - 'quasi ipsa veritate coactus': as if compelled by
truth herself- to the realities of widespread sexual abstinence. 144
It is furthermore just worth pointing out, with no particular
reference to Dr Menninger, how peculiarly reckless it would be
for any Freudian psychoanalyst to deny the reality of movings,
and whatever else this may involve. For, as we saw in Section
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 97
9 of Part 11, the distinction between the disease and the cure
in the area in which, supposedly, 'our therapy celebrates its
triumphs' has to be explicated by reference to precisely this
familiar and undeniable difference between motions and
movings. The immediate consequence is that, if and in so far as
'freewill' is to be defined in terms of capabilities of moving,
Dr Johnson was certainly half right when he said: 'We know our
will is free, and there's an end on't.'I4S
*
2 But Dr Johnson was half wrong too. For thus simply to
insist upon the basic facts cannot be the end of the affair. We
have to go on to ask what they presuppose and imply, and what
individual and social significance ought to be accorded to them.
One first thing to notice is that these consequent inquiries are
badly obstructed by various extramdinary, and yet extraordin-
arily common, misuses and misunderstandings of quite ordinary
non-technical terms.
Thus for instance J. B. S. Haldane wrote in his Foreword to
Dr J. Lange's Crime as Destirty: 'To sum up- an analysis of thir-
teen cases shows not the faintest evidence of freedom of the will
in the ordinary sense of the word .... Taking the record of any
criminal, we could predict the behaviour of a monozygotic twin
placed in the same environment.' 1 46 But Haldane here is not
using the word in its ordinary but in the technical, philosophi-
cally libertarian, sense; in which it implies, by definition, un-
caused causes and unpredictability in principle. In the ordinary
sense, in which freewill is opposed to compulsion, my ability to
predict that Haldane would - with certain possible exceptions -
follow any instructions of the Communist Party, had no tend-
ency to show that his allegiance was not freely undertaken,
freely continued, and, in the end, freely and most honourably
abandoned. Nor does anyofDr Lange's evidence ofremarkable
similarities between the lives of identical twins suggest that
these twins were not- in the sense of 'free' indicated in the final
paragraph of the previous Section 1 - free.
Again, in arguing for 'the assumption of an absolute psychic
determinism', Freud himself mistakes it that he has to deny that
anyone acts 'of his own freewill, and without motives'. So, in-
credibly, he asserts: 'for some time I have been aware that it is
impossible to think of a number, or even of a name, of one's
g8 CRIME OR DISEASE'

own freewill'. 1 47 Dr A. A. Brill, his American translator, writes

similarly: 'The rank and file of psychiatrists believe in absolute
determinism'; and Brill takes this to be antithetical to the belief
of 'most persons' that 'they can do what they want, and regard-
less of motives'. r4S But neither in the ordinary nor even surely
in the technical sense does freewill negative motivation. Cer-
tainly that I voted, or married, freely and not under compul-
sion, does not show that I did not do the one because I wanted
to keep the other lot out, or the other because I wanted to be
married to this one.
Dr Ernest Jones, a member of Freud's Inner Circle and his
future biographer, observes: 'that a man's belief in freewill
seems to be stronger in proportion to the unimportance of the
decision. Everyone is convinced that he is free to choose whether
to stand or to sit at a given moment, to cross his right leg over
his left or vice versa "as he wishes". With vital decisions on the
other hand, it is characteristic that he feels irresistibly impelled
towards one and one only, and that he really has no choice in
the matter nor desires to have any.' 1 4'1
Suppose we waive the purely psychological point that what
is said about vital decisions is not in fact true, since all too many
of us find the important ones very difficult indeed. Admittedly
it does not inspire confidence when experts tell us about their
own areas of specialisation what we as laymen know to be
false. But there are two more philosophical immediate objec-
tions. First, that some choice was for the chooser so easy that he
felt no anguish of decision, does not even begin to show that
there were no alternatives for the choice to be between. Exis-
tential agonies are therefore not essential. Second, that every-
one knew which, given a choice, I would choose, does not make
it a whit less true that, when I was given a choice, and then
chose as expected, I did in fact choose; choosing whatever I did
choose. Foreknowledge not merely does not, but cannot, de-
stroy its object.rso
These comparatively superficial confusions mask a more funda-
mental error about the nature of desire. Dr Ernest Jones, like
so many others, speaks of a man's own strongest desires as if
these were, typically, both compulsions and irresistible: 'It is
characteristic that he feels irresistibly impelled towards one and
one only'. But this is diametrically wrong. It is wrong in the
first place because, as we saw in Section I 5 of Part n, to act
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 99
under compulsion is to be induced by some sort of threat from
outside to do what, if only the circumstances were different, you
would much rather not do. To assimilate doing what you most
want to do to this case is therefore literally preposterous.
In the second place, and more subtly, it is wrong because it
construes our desires as overwhelming forces. It is no doubt not
despite, but because of, this suggestion that the term 'drive'
appeals so strongly to mechanically minded and theoretically
ambitious psychologists. For it is far easier to appreciate the
ineptness of such a mechanical model if we continue to talk
colloquially about what people very much want. It is inept
because there is a fundamental difference: between on the one
hand explaining that he is lying in the road because he was
knocked down, and out, by a wildly driven Austin; and on
the other hand explaining that he is lying in the road, more
aggressive than helpless, to protest automotive pollution.
In the former case he really is the victim of external forces. In
the latter he as surely is not. For, granted that I have a desire
for Cynthia, it is no more inevitable that I will set about trying
to get her than it follows necessarily that any attempts I do
make will succeed. Suppose that some super-psychologist hap-
pens to be able to predict both that I will, and that they will.
Still all that follows from this alone is, uninterestingly, that I
will and that they will; not that I will, inevitably and willy-
nilly, nor that they will, irresistibly.m Since to do anything
surely involves movings (or not movings), and not just motions
(or not motions) ; it must follow that for me to do something
because I want to do it does not preclude, but presupposes, that
in some relevant sense there are alternatives. So when Luther
says- not being paralysed, but as an agent- 'Here I stand. I
can no other', it has to be true that in some deeper sense it
would have been false to say, 'I can no other.'
A corollary of this understanding of the explanation of human
conduct in terms of desires is that Freud's psychic determinism
cannot have the implications which he and others have attri-
buted to it. For the essence of this psychic determinism is the
claim that whatever is so determined can be explained in terms
of motives, plans, desires, purposes, intentions and so on: if not
conscious ones then unconscious. Yet - at least as regards the
conscious - any explanation of this distinctively human kind
does not preclude but presupposes that those concerned, in the
IOO CRIME OR DISEASE 1

deeper sense, could have done otherwise. If in truth they could

not, then there was no true action; and all reference to their
desires, their plans, their purposes and so forth as its explanation
must be without foundation. The perhaps surprising moral is
that if universal general Determinism really is, as it is so often
assumed to be, incompatible with this fundamental notion of
an agent necessarily being able to do otherwise, then psychic
determinism is not a particular case of such general Determin-
ism. On the contrary: on any such Incompatibilist assumption
psychic determinism must itself be incompatible with general
Determinism. We not merely are not, we cannot be, puppets
on the strings of our desires. 1 S2

*
3 But what now of general Determinism, construed as the
thesis that the existence of every being and the occurrence of
every event have causally sufficient conditions? It is presumably
for this rather than for psychic determinism that 'the rank and
file of psychiatrists' would opt if they were to realise that they
might have to choose. 'Legally', in the words of one who techni-
cally is a psychologist rather than a medically qualified psychia-
trist, 'the notion of freewill, responsibility, intent and so on,
plays a large part in the assessment of culpability.... 'However
the 'deduction which may be made from our general theory is
... uncompromising. We would regard behaviour from a com-
pletely deterministic point of view; that is to say, the individual's
behaviour is determined completely by his heredity and by the
environmental influences which have been brought to bear on
him. Therefore, to attribute to different individuals, greater or
lesser degrees of responsibility seems, from this point of view,
a rather meaningless procedure.'m
Certainly if we take it, as too many even of those who as
philosophers are paid to know better do take it, that the philoso-
phically libertarian is the only relevant sense of 'freewill'; then
quite obviously any such Freewill and a universal general
Determinism must be incompatible. In that case there would
be no philosophical problem; only the question whether Free-
will, in that sense, is in fact an actual phenomenon. But, as was
seen again in the previous two sections, there are at least two
other surely relevant senses; and it is irrefragably certain - cer-
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 101

tain beyond any possibility of upset by any other discoveries,

whether in psychology, or in physiology or even in theology-
that in both these senses freewill is a reality.
For it is just not on to contend that there are no such things
as movings, as opposed to motions; where both terms are de-
fined, as they were defined in Section 4 of Part n, exclusively by
reference to utterly familiar differences. Exactly the same applies
to actions done of one's own freewill rather than under compul-
sion, intentionally rather than unintentionally, and so on; al-
ways assuming of course that these pairs of contrasting words
or expressions may be interpreted similarly as referring only to
the corresponding utterly familiar differences. So, when some-
one is determined to inform us that his speciality either has
shown or presupposes that these realities are not realities, we
can know without further inquiry that either his speciality is
unsoundly founded or he has misread its implications. 1S4
The best hope for the radical wanting to overwhelm this con-
servative entrenchment is to call out Dr Harvey Cushing's
demonstration. That is formidable because it suggests that there
are physiological sufficient conditions: not only of our motions,
which nobody would want to deny; but also of our movings,
which is exactly what many have thought could not be the case.
Descartes for instance, although he also wanted for theological
reasons to deny the conclusion, maintained - to put it in our
terms- that libertarian freewill is an immediate inference from
the capacity for movings or not movings.ISS But, whether or
not in fact it is or can be established that there are physiological
sufficient conditions of our movings, it is surely at least not self-
contradictory to suggest that there might be. And furthermore,
supposing the inference were indeed sound, the same argument
would also constitute a disproof of the existence of the God of
traditional theism - the all-knowing, all-powerful, sustaining
cause of all creation. Which was of course why Descartes wanted
to deny as well as to assert its conclusion.
So suppose instead that some physiologist is able to bring
about in someone else: not merely a motion - as the doctor by
a well-aimed tap elicits the knee-jerk reflex; but even a moving
-in which the subject has 'a full sense that he is voluntarily per-
forming the action'. Clearly, even when this is done - as by the
properly scrupulous Dr Cushing- 'with the consent of a patient',
the doctor must have some share, along with the patient, in
I02 CRIME OR DISEASE?

responsibility for the consequent action. If and when such man-

ipulation is performed either without the knowledge and consent
of the patient or actually against his wishes, then it is hard in-
deed to see how he, rather than his manipulator, can properly
be held in any degree responsible for the behaviour resulting.
Yet it seems that precisely this would be our universal human
condition if traditional theism were the truth. Nor is the idea
that this is its implication peculiar to Calvin and to those other
theologians whom we are all taught to call predestinarian. The
same substance is found in many others, however great the
differences in tone of voice and in frankness of expression. Al-
ways one of the frankest, and always the most vigorous, Luther
argues: 'Natural reason itself ... would be forced by the con-
viction of its own judgement to concede this much, even if no
Scripture existed. For all men find the following convictions
written in their hearts ... ; first, that God is omnipotent, not
only in power but also in action ... ; second, that He Knows
and foreknows, and can neither err nor be deceived. These two
points being allowed ... they are at once compelled by irrefut-
able logic to admit that we are not made by our own will ...
and accordingly that we do not do anything by right of "free-
will", but according to what God foreknew and works by his
infallible and immutable counsel and power.' 1S6
The crux for us is that by 'freewill' Luther means always
libertarian freewill. What he says makes it perfectly clear that,
while God always fixes all human choices, and while there is
therefore no place in God's creation for libertarian freewill,
this in no way prejudices the reality of freewill in our two other
senses. Thus he raises, but forthwith drops, the question: 'Why
then does He not alter those evil wills which He moves? This
question touches the secrets of His Majesty, where "His judge-
ments are past finding out" [cf. Romans, XI, 33].' 1 57 But else-
where Luther insists: ' ... I did not say "of compulsion" ... a
man without the Spirit of God does not do evil against his will,
under pressure, as though he were taken by the scruff of his
neck and dragged into it, like a thief or a footpad being dragged
off against his will to punishment: but he does it spontaneously
and voluntarily.'IsS
Since the arch-Protestant Luther, like his Roman Catholic
opponents, believed that most of God's human creatures would
be condemned to unending torture; and since, as both parties
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 103

also believed, God had arranged that this would be the con-
sequence of choices made in senses which Luther clearly saw
that the same God must also arrange; how can we fail to be
pierced by his heartcry? For, seeing no way to escape the pro-
position that we are the creatures of such a Creator, Luther con-
cludes: that 'the highest degree of faith is to believe that He is
merciful, though He saves so few and damns so many; to be-
lieve that He is just, though of His own will He makes us per-
force proper subjects for damnation, and seems (in the words of
Erasmus) "to delight in the torments of poor wretches and to be
a fitter object for hate than for love". If I could by any means
understand how this same God ... can yet be merciful and just,
there would be no need for faith.' 159

*
4 For us the reason for quoting Luther is to bring out as
clearly and as dramatically as possible three points. First no
discovery, simply as an unapplied discovery- not even the most
supercosmic discovery - could ever abolish familiar differences,
or invalidate distinctions founded solely upon such differences.
Second the reality of freewill in both the two senses thus defined
constitutes no warrant for assuming the reality of freewill in the
technical libertarian sense; and hence, conversely, the manifest
irreconcilability with that of general Determinism provides no
reason at all for assuming that whatever presupposes or implies
this kind of Determinism can have no room for either of the
other two more homely sorts of freewill. Third, although dis-
coveries cannot simply abolish familiar differences they may
well demand some revision, or even revolution, in ideas about
the significance of those differences.
More must now be said, with special reference to an atheist
general Determinism, about points two and three. Against two
it may be objected that, although the words 'moving' and 'mo-
tion' were given their special new senses by reference only to
observed differences this does not apply to 'freewill' as opposed
to 'compulsion', to 'intentional' as contrasted with 'uninten-
tional' or to the members of any other pairs of contrasting
colloquial terms for characterising actions. It remains possible
therefore that any or all of these other terms, so vital to the assess-
ment of responsibility, are, like the term 'lunatic' as employed
104 CRIME OR DISEASE r

in the days of Sir Matthew Hale, partly descriptive and partly

theoretical. Just as he and his contemporaries when they used
the word 'lunatic' were both labelling the phenomena and vent-
ing their theory that these were controlled by the phases of the
moon, so it might be argued that both they and we in employ-
ing certain of those other terms are both indicating directly
observable differences, and committing ourselves to the hypo-
thesis that we have here a case of libertarian freewill: 'We use
the word "free" not simply to characterise a certain class of
actions which we could, so to speak, pick out by eye, but rather
to say of those actions that no complete causal account can be
given of them.' 1 6o
It is unfortunate that, even among trained professional philo-
sophers, spokesmen for this kind of thesis so often write as if they
had never heard of the notion that, in ordinary untechnical
usage, the expression 'of my own freewill' refers to the absence
not of causes but of compulsion. 161 To anyone seized of this
elementary and by now hackneyed truth the best bet would
seem to be to urge that it is the general idea of action, rather
than the particular case of acting witl10ut compulsion, which
embraces (the possibility of) uncaused causes; causes, that is,
with posterity but without ancestors.
Even this best bet however is still not good. For the claim
will presumably have to rest on giving a libertarian interpre-
tation to that 'deeper sense in which it would have been false'
for Luther, or for any other agent, 'to say. "I can no other" '.
Suppose now that we have appreciated that there is at least no
inconsistency in saying that God - or even Dr Harvey Cushing
- can manipulate a man's movings and not movings. Then it
surely becomes in the last degree implausible to suggest that,
while the 'could have done otherwise' which can be defined by
reference to the observed differences between movings and mo-
tions does not of course carry any implications about uncaused
causes, the 'could have done otherwise' which is essential to the
concept of action is quite different; because this one, unlike the
other, does presuppose libertarian freewill.
One simple but important reason why it is so easy to reach
such implausible conclusions lies in a widespread failure to
appreciate the difference: between on the one hand appealing
directly to established correct usage as the determinant of the
meaning of a word; and on the other hand requesting people to
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 105

report what they themselves believe its meaning to be. If for

instance you ask a group of philosophical beginners to spell out
the meaning of the word 'mind', then the chances are that most
of them will construe it as referring to a kind of logical sub-
stances. Yet those same students, reading on the sports pages
that 'Ethiopia's win in the marathon was a triumph of mind
over matter', will certainly interpret this correctly, as saying no
more than some less pretentious alternative mentioning only
the tremendous determination shown by the victor. Again they
will interpret overheard dons talk about fourth-class minds as
referring, not to tawdry spiritual substances, but to the lament-
able intellectual incapacities of some of their contemporaries -
or of some of their teachers !
So, similarly, if in a philosophical context we ask someone to
tell us what he believes that the word 'free' means, then he is all
too likely to assert that it is used 'to say of ... actions that no
complete causal account can be given of them'. Nevertheless,
although there certainly is such a technical libertarian sense of
'freewill', this is, as we have seen, equally certainly not the
ordinary sense; 'the sense in which in his philosophically unself-
conscious moments even our respondent himself would use the
word.
Yet it is precisely ordinary as opposed to technical senses with
which we need to be primarily concerned. For the fundamental
ideas of moral and legal accountability are themselves ordinary
and philosophically non-technical, and they are logically linked
with manifold distinctions drawn in a correspondingly ordinary
and correspondingly non-technical vocabulary. In so far as
these distinctions are rooted in familiar differences, and in so
far as the words and expressions used to mark these undoubted
differences carry no theoretical load, then they cannot be im-
pugned by any discovery whatsoever, whether scientific or theo-
logical. So freewill in the technical, philosophically libertarian,
sense becomes relevant only if and where it can be shown to be
presupposed by, or encapsulated in, some of the crucial ordinary
ideas. Where, but only where, this can be done, there, but only
there, is general Determinism as such a threat - or a promise.
About this all that I can reasonably hope, and have tried, to
do here is: first to show that it must not be taken as axiomatic
that it is libertarian freewill, a notion which no doubt 'must be
excluded from any scientific discourse', which 'forms the only
I06 CRIME OR DISEASE?

rock on which a sane structure of civil and criminal law can be

built'; and second to suggest that there .are some good reasons
for believing that this putative axiom is in fact false.
The third lesson which the consideration of Luther can under-
line is that, although familiar differences cannot be abolished
by discoveries, such discoveries may sometimes demand some
revision in accepted ideas about the significance of those differ-
ences. Suppose with Luther we learn, or imagine that we have
learnt, that we are all ofus creatures of a cosmic Cushing: 'He's
got the whole world in His hands.' Certainly we must now aban-
don any terms involving libertarian freewill: that notion can
in such a universe have no application. But equally certainly,
as Luther also insisted, all the familiar observed differences
must remain altogether unchanged. Sometimes a man will be
seen to act 'spontaneously and voluntarily'. Sometimes he will
act 'against his will under pressure'. And sometimes he may be
'taken by the scruff of his neck and dragged'. Yet for all that,
as with a candour rare among theologians Luther himself again
makes clear, the significance of these differences cannot remain
exactly what it was before. For now we see that 'of His own
will he makes us perforce proper subjects for damnation.'
It is no part of our present business to pursue the extremely
hard question of exactly how and where such an appalling theo-
logical discovery ought to change our ideas. It is sufficient to
appreciate: first, in general, that a radical reassessment would
be required; and second, in particular, that it must be absurd
and outrageous for the Supreme Judge to base discriminations
upon those differences which would concern a human court.
For, whereas the prisoners in any wordly dock are beings inde-
pendent of their judges, creatures have all and only those char-
acteristics fixed by their Creator. 1 62
Suppose now instead that what we are accepting is an atheist
and mortalist Determinism. Suppose too that this view does
not after all preclude the possibility of action. Then it is at least
not obvious that any general revision is required; although of
course those holding particular contrary philosophical beliefs
will need to change. For, upon the Compatibilist assumption
stated, there will be no call to detheoreticise the meanings of
any everyday terms: as the advance of psychiatry surely re-
quired the detheoreticisation of the term 'lunatic'; and as the
Copernican Revolution certainly would have required that of
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 107

the expression 'The sun is rising' if previously that really was -

as everyone else says it was - theoretically loaded. Nor, upon
that same assumption, will it be clear that 'The issue of ... de-
terminism, albeit a metaphysical, not a scientific and opera-
tional problem, is basic to the entire controversy that has raged
between the law and psychiatry, the law and other disciplines.'
For no reason will have been given to doubt the classical assump-
tion: 'To assert that man is a free moral agent, capable of choos-
ing right from wrong . . . engaging in rational voluntaristic
conduct, is classical criminology.' 163
It is here neither possible nor necessary to investigate the im-
plications of Determinism thoroughly. But three further short
suggestions may be useful. The first is that it is as wrong as it is
common to confound the two doctrines just now treated in suc-
cession. The crucial difference is that in the former, the theist,
there is another agent either to share or to monopolise responsi-
bility; whereas in the latter, the atheist, there is not. Thus it
will not do, here any more than anywhere else, to argue directly
from possibility to actuality: to urge for example that because
the Cushing demonstration perhaps shows that all my movings
could in principle be produced by the manipulation of some-
one else; therefore I always in fact am being thus manipulated,
albeit perhaps by ongoings in my own central nervous system.
Nor will it do, notwithstanding that it is forever being done,
first to personify Fate or the Unconscious or Heredity or what
have you, and then to draw conclusions from your own fictions
which would be justified only if these were facts.
The second suggestion is that we must never forget that we
are beings of flesh and blood: that our brains for instance are
somehow parts of us; and not of an external world around us.
It is therefore absurd to speak of 'the relation of personality to
the body we inherit'.r64 Nor, since we are thus rational animals,
can it be right to take physiological accounts of what goes on
when I argue for some conclusion, or decide to perform some
action, as precluding the possibilities, that I have good reasons
for what I am saying, and that I shall do what I shall do be-
cause I want to. If this is so, and it surely is, than it must be
wrong to say: 'If human actions were completely explicable
according to a physical scheme of explanation, then they could
not really be explained according to a rational or human scheme
of explanation'; and wrong too to take Determinism to be self-
108 CRIME OR DISEASE?

discrediting on the grounds that the Determinist 'does not hold

his Determinist views because they are true, but because he
has such-and-such a genetic make-up, and has received such-
and-such stimuli'. 16s
Again it must be similarly wrong: first to define 'the freedom
of the will' to mean 'the capacity to make and execute choices
that are essentially conditioned by conscious desire to achieve
a certain envisaged end ... to make purposive choices among
alternatives and to direct action in accordance with such
choices'; and then after that to regard it as an open question
'whether human beings have any real capacity to initiate se-
quences or to break into causal chains by an effort ofwill'.I66
For, since there can be no doubt whatsoever but that people do
frequently intervene to prevent developments which certainly
would have occurred but for their intervention, the only possible
remaining question is whether people - considered now,
wrongly, as incorporeal Cartesian subjects of consciousness -
are or are not able to inhibit or to trigger mechanisms in those
organisms in which they, as it were, reside.
The third suggestion is very pedestrian. Yet pedestrians do
have their feet on the ground. The suggestion is that we never
forget that you do not have to be an uncaused cause to be a
cause. So it is, simply, wrong to say that, on Determinist assump-
tions, 'his action did not really depend on him, but was deter-
mined by antecedent external circumstances'; and also, but
more subtly, wrong to say that 'if! am determined, my will can
be left out of consideration as an independent factor, because it
can be calculated from other factors already given.' 16 7 It is
ridiculous thus to assume that nothing can really depend on
anything which is in turn dependent upon something else. This
would imply that no causal chain could consist of more than
one link. Yet I am none the less a father for having had one.

*
5 Determinism has been considered so far in Part III as the
ground for the objection 'that the fundamental conceptions in
tenns of which I have tried to distinguish mental disease from
mental health are pre- or even anti-scientific'. The response has
been: first to outline what Hume in his first Inquiry called a
'reconciling project' (vm (i)); and second to threaten- if noth-
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE 109

ing along these lines proves acceptable - totally to turn the

tables.
It is impossible here to do more than first sketch how such a
project might be developed, and then indicate that the weight
not only of philosophical but also of theological opinion appears
to have been in this sense Compatibilist. Heaven forbid any
attempt to settle a philosophical question by a headcount of
authorities. Yet some attention does have to be paid to tradi-
tion if the arguments offered are to be given due consideration.
The threat too is important. There are some things which we
cannot accept from experts. If it really is either a presupposi-
tion or a finding of the psychological sciences that there are no
such things as movings, only motions; and that all these familiar
distinctions made by reference to the differences between what
we can and what cannot do at will, properly belong with such
garbage ideas as witchcraft or phlogiston: then, without any
doubt whatever, it is the pretensions of these sciences which
must be rejected, not the inexpugnable realities of everyday
life. If this really is the presupposition or the implication, the
which I do not believe, then it is absurd for Stott to preen him-
self upon public-spiritedly soft-pedalling a truth which 'from a
broad social point of view' it would not be healthy to have noised
abroad among the lower orders. For, on this assumption, the
scandal would be the scandal of psychology itself; and 'the
rabble without doors' would have good reason to ridicule a
kind of learning which would deny the undeniable.x6S
Two other lines of thought must be at least indicated before we
stop. The first is that one must not appeal to general Determin-
ism to establish only the relatively particular conclusion that
all crime is in fact an expression of mental disease. For this absol-
utely universal premise cannot be thus conveniently controlled:
if the Incompatibilists are right what it threatens is, as was
suggested in Section 13 of Part n, total categorial catastrophe.
Lombroso quotes an eighteenth-century source: 'Rondeau,
governor under Joseph n'. In his Essai physique sur la peine du
mort this Rondeau maintained: 'Crime does not exist in nature;
it is the law alone which imposes this ul\iust designation on acts
which are necessary and inevitable.... Anger is a passing fever,
jealousy a momentary delirium, the rapacity of the thief and
swindler a momentary disease, and the depraved passions which
drive men to sins against nature are organic imperfections ....
IIO CRIME OR DISEASE l

The murderer himself is a sick man like other criminals ... the
moment all crime is recognised as the natural product and logi-
cal consequence of some disease, punishment must become only
a medical treatment.'I69
In the first half of our own century the American attorney
Clarence Darrow became notorious for securing acquittals in
murder cases by appeals to universal Determinism; although
it is surely significant that he made no such appeal in the great
'Monkey Trial', defending a man who had in a Bible Belt pub-
lic school taught the theory of evolution by natural selection.
Darrow claimed generally: 'There is now no room for such a
doctrine as freedom of the will. Nothing in the universe is out-
side the law, whether mineral, vegetable, or animal'. So it is
apparently clear that 'crime is a disease whose root is in heredity
and environment.' The same arbitrary selectivity shows again
when Darrow continues: 'The transgression of organised society
in the treatment of crime would not be so great if ... scientists
had not long since found the cause of crime..•. These students
have pointed the way for the treatment of the disease.' 17°
Now obviously, if we may validly argue from such Deter-
minism to the conclusion that criminal behaviour cannot be
controllable, then, by parity of reasoning, we may also argue
that from the same premise it follows that all behaviour what-
soever must be similarly uncontrollable. But this conclusion
wreaks havoc with, among many others, the concepts of mental
disease and mental health. For it wholly destroys the crucial
distinction: between how a man actually behaves, whether in
movings or in motions; and how he could have behaved, in
alternative movings or not movings. Where - one is tempted to
say - no one is ever capable of doing or not doing anything at
will, there indeed everyone must be in some way 'sick, sick,
sick'. Yet even this is misleading. For the situation envisaged is:
not one where everyone happens to have got the same disease
simultaneously, although all or some will hopefully sometime
recover; but one where it would be physically impossible for the
idea of a cure ever to find any proper application at all. We
should therefore be reduced to a position far more absurd than
that of the nineteenth-century psychiatrist John Haslam who,
to the great irritation of the court, once deposed: 'I never saw
any human being who was of sound mind.'m
Of course no one would accept such a crazy position once he
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE I I I

had seen what it involved. The danger is that those who believe
that these are the true consequences of Deterministic truth will
take this as a reason: not, as it is, for revising their ideas about
Determinism; but, as it is not, for challenging the basis of the sort
of understanding of mental health and mental disease developed
in Part n. Favoured and disfavoured behaviour as such are then
all too likely to become the criteria of, respectively, mental
health and mental disease. But, since it will surely still be as-
sumed that the patient is necessarily a victim, it will as before
appear obvious that it must be in his interests to be straightened
-that this must in truth be what he himself really wants. (When
the metaphysician says that this is really that, what he really
means is that it is not really.)
There is worse to come. For all ideas of justice surely pre-
suppose accountable agents, for whom this or that treatment
would be fair or unfair, or to whom one thing or another is due.
In the rather shocking statement quoted in Section I of Part I,
Dr Karl Menninger was right at least in so far as he was insisting
only on the complete inappositeness of the conception of jus-
tice to the determination of the effectiveness of means to cure a
disease. A universe in which Determinism is permitted to ex-
clude all possibility of action can therefore offer no purchase to
such ideas; and consequently justice could there set no limits to
the possibilities of seizing people for the purpose of effecting in
them whatever transformations might be adjudged to be soc-
ially desirable. Bradley therefore seems to have been substan-
tially right in another harsh characterisation of a contemporary
tendency: 'There is a way of thinking and feeling about punish-
ment, not uncommon in our days, which exhibits a high degree
of inconsistency. It more or less explicitly accepts the doctrine
that crime (all of it or some of it) is mere disease.' Hence, 'Crim-
inals, some or all, are diseased, and are therefore innocent; and
the innocent, of course, are by justice proclaimed to be sacred.'
For, 'Justice is the assignment of benefit and injury according
to desert ... .' But, Bradley continues, if a 'man is not a moral
agent ... surely what follows is that justice is indifferent to his
case. What is just or unjust has surely nothing to do with our
disposal of his destiny.' Bradley therefore concludes: 'So long
only as we do not pretend retributively to punish him, we may
cut him off, if that seems best for the general good.' 1 72
¥
112 CRIME OR DISEASE I

6 The second further thing to be noticed finally is that the

philosophical discussions of the present Part III cannot be dis-
missed as irrelevant to the practical. For so long as those trained
in the psychological disciplines see it, at least in their self-
conscious, working hours, as a requirement of their cloth to hold
that really there is no such thing as choice, and so on; so long
will they find themselves, or be found, misrepresenting their
own observations, and making recommendations which are in
part vitiated by these professional misconceptions. However
much common sense will keep breaking through, and constantly
and happily it does, still even the most sensible among them
seem to have at least some nagging feeling that really they
ought to believe that the power of choice is a chimaera. It is
therefore not surprising that hard-headed lawyers and tradi-
tionalist plain men should often suspect what is offered to them
as psychiatric expertise. Some good may be done here by the
sort of superficial diplomacy which repudiates extreme state-
ments as unofficial, and which attempts to demarcate reserved
bailiwicks for all parties.m But a more direct and radical con-
frontation is also required. For, though sometimes perhaps
exaggerated, the suspicions in this case are well founded.
For example back in Section 4 of Part I we saw Stott conclud-
ing that 'delinquent breakdown is an escape from an emotional
situation which, for the particular individual with the various
conditionings of his background, becomes at least temporarily
unbearable.' We noticed that this conclusion was supported by
the claim that 'The offender is so patently acting against his
own interests'; a claim which in its turn was equally patently
not supported by Stott's own evidence. Mter the additonal
quotation given in Section I of Part III it is hard to resist the
conjecture that Stott was blinkered by his own apparent meta-
physical conviction that every delinquent indeed must be 'a
psychological case'; since 'the most commonplace of acts can
be shown to be the outcome of many years of complicated
causation'.
It is again, I submit, the same misguiding metaphysical be-
lief that ' "what I will not, that I cannot do" ', rather than any
empirical facts actually reported, which determined Dr Kate
Friedlander's conclusions: 'The scientific facts set out in the pre-
ceding chapters go to show that the offender, through no fault
of his own, has been unable to build up a character which of
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE I 13
itself would enable him to respect the claims of the community
and, in certain situations, to regard them as more important
than the satisfaction of his own desires. We have also seen, at
least by implication, that if we are law-abiding citizens it is
merely because we have had the opportunity to become socially
adjusted.' 1 74
Even that good adjustment still leaves the rest of us a bad
lot. Non-offenders, the future Honorary Psychiatrist to the Insti-
tute for the Scientific Treatment of Delinquency insists in her
Preface, 'feel justified in condemning the behaviour of the
offender and pressing for his punishment. They rationalise their
attitude on the grounds that they themselves undergo frustra-
tions for the sake of the community, whereas the delinquent
gratifies his desires to the discomfort of his fellow citizens.'
Wordworth's words apply more widely (The Excursion, IV); it
is not only self-disparagement which ffc ds
a or
To meditative spleen a grateful feast
Once more, the same misguiding metaphysical belief led
another British Freudian, Dr Charles Berg, to write: 'I am using
the word "blame" rather loosely, for psychology does not blame
anyone; it recognises that a person's acts, like the acts of any
organism or organ, are predetermined by heredity, develop-
ment, and enviroment.'I75
Another interesting mistake may be involved in this example,
a mistake running parallel to that which certainly is to be found
in the passage from the same author quoted in Section 16 of
Part II. From the fact that certain terms are not part of the
vocabulary of some science, it cannot be concluded that that
science shows the illegitimacy of the corresponding notions.
That musical and gastronomic characteristics are neglected by
physicists in their working hours; and that 'counterpoint' and
'tastiness' do not, therefore, belong to the vocabulary of physics;
provides not the slightest reason for saying that physics reveals
their unreality. So from the fact, if it is a fact, that a psychol-
ogist must not, in his professional capacity, engage in either
blame or praise, it does not follow that his discipline has re-
vealed these activities to be without rational foundation.
There is no doubt that Dr Berg did make the parallel mistake
in the other case. If 'To achieve success the analyst must above
all be an analyst'; if, that is, he must in his analytic hours treat
 CRIME OR DISEASE?

every utterance by his patients as actually or possibly sympto-

matic; then it emphatically does not follow that 'he must know
positively that all human emotional reactions, all human judge-
ments and even reason itself, are but the tools of the uncon-
scious.' For the premise here is a modest confession of the cal-
culated limitations of one particular professional interest, where-
as the proposed conclusion is to be construed as a piece of
wildly deflationary metaphysics: there just is, it is supposed thus
to have been revealed, no place anywhere for such concepts as
'well-argued case' and 'well-founded assurance'; presumably
not even, we might add nastily, either in or in talk about the
literature of psychoanalysis.
Now it is all very well for Dr Michael Balint, writing 'On
Punishing Offenders', to begin: 'Being a doctor, I propose to
treat criminality as an illness'; and then to try to apply the
notions of morbidity, diagnosis and recovery rate 176. But it
would be quite a different thing, and quite wrong, to argue:
that because I may or must, for certain limited purposes, treat
this as if it were that; therefore I am assuming, or have even
shown, that this just is that - and that's that.
The temptation here is to confuse statements of particular
professional limitations with appeals to special professional
knowledge. It is fine to say: either 'As a doctor, in his profes-
sional capacity that is, he can talk about, has a right to talk
about, only health; and not politics or religion, or the good life
in general'; or 'As a doctor, thanks to his specialised training
that is, he can recognise a case of encephalitis lethargica; and we
cannot, and so must shut up, and leave things to him'. But it is a
very different matter, and no implication of either of these pro-
positions, to say that as a doctor, th:;mks to his specialised train-
ing, he knows that the universe contains nothing but what, as a
doctor, he is supposed to concentrate on in his working hours.
Yet again: the same basic misguiding beliefs about Deter-
minism are surely not only in part consequences but also in part
causes of those extraordinary misunderstandings just now noticed
in Section 2. The result of such endemic confusions about central
elements in the very rich colloquial vocabulary 1 77 is to make a
century-old comment on Dr Maudsley's Responsibility in Mental
Disease even more relevant today than it was then: 'How in the
world is it possible to say what relieves a madman of responsi-
bility, until you know what makes a sane man responsible?'; for
DETERMINIST PRESUPPOSITIONS CANNOT DISPROVE I 15
'until we know whether a writer is one with us in our main be-
liefs as to a sane man's responsibility, how can we ... receive
his evidence as to anyone's non-responsibility, when, so far
as we can see, on his showing no one (sane or mad) would be
what we call responsible?'I78
What indeed is the responsibility which, in the view of those
for whom Dr Walter Bromberg speaks, we have not got? 'Many
psychiatrists feel', he tells us in Crime and the Mind, 'that no man
can really "choose" a course of conduct, because "free choice"
is determined by each individual's cultural and psychological
background, his unconscious impulses, identifications, predeter-
mined wishes and drives. Thus a criminal offender cannot be
considered psychologically "free" in any absolute sense.' He
concludes: 'It is understandable that psychiatrists can look with
greater ease on partial responsibility as a defence against crimi-
nal responsibility in selected cases, since the traditional view of
absolute freewill cannot be supported clinically.' 1 79
Really to choose a course of conduct; to be psychologically
free in an absolute sense; to have what clinical experience has at
last revealed that we do not have: this would apparently be to
be without any loyalties or commitments, without any cultural or
psychological background. The wholly responsible man would
be, if he were, a person without any relevant past. He would
have to lack almost everything which constitutes the differ-
ence between one individual and another. As Mrs Marme-
ladov is said to have said: "She can't help herself, I'm afraid.
Its her character, you see" ,'I so
Notes
Publication details of works cited in the Notes will be found in the Biblio-
graphy. Numbers in square brackets relate to authors of whom more than
one work is cited.

I. To Albert Hodges, 4 April 1864.

2. The reference is to John Wilson's Language and the Pursuit of Truth.
What Lady Wootton believes that she learnt therefrom is that 'the
first doctors who attempted to investigate the properties of opium . . .
offered as an explanation . . . that it had a vis dormitiva or "soporific
quality'". (Wootton, Social Science and Social Pathology, p. 317.) This may
well be so. Yet I wish that Wilson's pursuit of truth had gone so far as to
ask whether the famous satirical references in Moliere's comedy Le Malade
Imaginaire constitute evidence sufficient to warrant Wilson's unqualified
assertion that the 'mistake was actually committed by the first doctors who
attempted to investigate the properties of opium'. (Wilson, pp. 43-4.)
3· A. G. N. Flew, 'Crime or Disease', in the British Journal of Sociology for
March 1954. Some materials first processed there have been, with per-
mission, recycled here.
4· J. R. Rees, !v1ental Health and the Offender, p. 6. This was no unrepeated
aberration. For in the Foreword to the 3rd edition (1951) of The Health of
the Mind, first published in 1929, he observes (p. 14) how now 'we are much
more aware of the widespread incidence of emotional disturbances - the
neuroses, psychosomatic illnesses, our increased delinquency rates - in
addition to the psychoses, the figures for which remain more or less steady'.
5· Karl Menninger, The Crime of Punishment, p. 17. Some small punctu-
ation changes have been made to ensure 'amicable coexistence': something
which in this particular case - for once - is not achieved at the price of
injustice to anyone.
6. Compare Francesco Carrara: 'Crime is not an entity in fact, but an
entity in law.' (Quoted in Radzinowicz, In Search of Criminology, p. 180.)
According to the London Times this embarrassingly elementary point
was missed, or at least muffed, at a recent conference of Directors of Crim-
inological Research Institutes. For on 3 December 1971, under the head-
line 'Experts agree on a new definition of Crime', the Times correspondent
reported from Strasbourg: 'Experts from 15 countries agreed that the only
acceptable definition of crime was behaviour which seriously disturbed the
life of society.... They noted that the concept of crime varied from country
to country, and within the same society at different times.' They proceeded
to remark, with approval, 'modern trends in dealing with shoplifting, worth-
less cheques, homosexuality, and abortion', which 'showed that such acts
II8 CRIME OR DISEASE?

were no longer considered as true crimes. On the other hand, pollution of

the environment, noise, and invasions of privacy were being treated more
and more often as criminal offences.'
Even if, as one must hope, the fault here lay not among the massed crim-
inologists but somewhere in the Thompson organisation, it will still be use-
ful to explain again for present application the old familiar philosophers'
distinction between connotation and denotation. The connotation of a
word is the meaning of that word, whereas the denotation of the word is the
objects to which it may correctly be applied. That the denotation of the
wom 'crime' varies thus with time and place constitutes no reason for saying
that its connotation does, or should, vary correspondingly; and hence no
reason for demanding or propounding new definitions for all the supposed
new meanings supposedly generated by these variations. That the denotation
of the word 'I' depends upon who is speaking or writing has no tendency to
show that it is systematically ambiguous, or that a fresh definition is re-
quired every time that someone else learns English. That 'the morning star'
and 'the evening star' happen to share the same denotation is not evidence
that these two expressions are synonymous.
7· The Syracuse Herald-Journal for 27 March 1g63, p. 35· Those who
would prefer a more traditional example may reconsider St. Augustine's
account of the disinterested wickedness of the theft of the pears: 'Nam
decerpta projeci epulatus inde solam iniquitatem, quae laetabar fovens.'
(Confessions, n 6.)
I owe the first of these references, and much else, to Dr Thomas Szasz [3],
pp. 74-5· Although, as will appear later, I cannot agree with all his con-
clusions about The Myth of Mental Illness, I should like to say here how much
I admire his crusading concern for the liberties, dignity and accountability
of the human person.
8. D. H. Stott, Delinquency and Human Nature, pp. 35 I, 363 and 10; the
third quotation was originally italicised.
g. All criminologists recognise, at least some of the time, that there must
be 'many offences which never come to the notice of the police at all. This
is the so-called "Dark Number" of crime. One can only guess at its size. That
it is a substantial number is certain ... it is possible that only one crime in
twelve ultimately ends in a sentence by the courts.' (H. Jones, Crime in a
Changing Society, pp. 15 and 18.) By the way: Stott is not the only crimin-
ologist inclined to derive conclusions about all without exception from evi-
dence about some as opposed to others. For Howard Jones writes (ibid.,
p. 55); 'No longer, also, are mothers discouraged from visiting their sick
children in hospital. ... Following the recommendations to that effect of the
Platt Committee, visits are now encouraged in many children's hospitals,
though others find it difficult to break with the older, more austere tradi-
tion.'
10. I have examined some features of the position ofThrasymachus more
closely in 'Must Morality Pay: what Socrates should have said to Thrasy-
machus', in The Listener for 1g66; also in Flew [6], 111 5·
11. Compare Plato, Euthyphro §§gE-l IB; quoted and discussed in Flew
(6], I 2.
12. Report [2], p. 2.
 NOTES II9
I3. The I957 Royal Commission fails to follow its own sensible term-
inological recommendation to employ the expression 'disorders of the mind'
to comprehend the two traditional contrasting categories of the 'mentally
ill' and the 'mentally defective'. (Compare §§Io and 74, pp. 4 and 25.)
This is of course a contrast which has, and is seen to have, a physical parallel.
See Part u, Section 4, below.
Lasswell's paper is called 'What psychiatrists and political scientists can
learn from each other'. The passage quoted is at p. 39; not p. 34, as stated
by Szasz [3], p. 22I.
I4. Bertrand Russell, The Practice and Theory of Bolshevism, pp. 28-g. Any-
one whose eyebrows rise at the suggestion that in his latest years Russell's
sympathies were increasingly aligned with the Socialist Bloc and its causes
will be equally surprised to read the last words of the message which he sent
to Hanoi on I I June Ig66: 'I extend my warm regards and full solidarity
for President Ho Chi Minh and for the people of Vietnam. I convey my
great wish that the day may not be far off when a united and liberated
Vietnam will celebrate its victory in a free Saigon.'
I5. F. H. Bradley [2], p. I52 and ff.
I6. For further explanation of the ideas of this paragraph see: either Flew
[6], IV, especially 3; or Flew [2], 'Introduction'.
I7. H. L.A. Hart, Punishment and Responsibility, p. 20.
I8. T. S. Szasz [2], p. 70.
I g. In the case of the recent edition of Erewhon for the Penguin English
Library such hopes would be disappointed. Yet there can surely be very
little point in furnishing a book of this kind with any introduction at all if
the editor cannot seize the chance to discuss such central questions.
20. Szasz [3], p. 70.
2 I. Plato, Republic, §§325E-353E. Compare the conclusions about the
three elements in the soul described in Section 8 of Part I of this essay (pp.
I7-20).
22. Anyone wanting to go further with Plato in this direction can be
referred to Anthony Kenny's 'Mental Health in Plato's Republic' in the
Proceedings of the British Academy for Ig6g, pp. 229-53· Although I did not
discover Kenny's paper until Part I was already complete, I must record
that Kenny anticipated me by two years in the basic contention: 'The con-
cept of mental health was Plato's invention.' (Ibid., p. 229.) It is perhaps
also just worth noticing here that Plato, after first urging that curable in-
justices should be cured 'as being diseases in the soul', then proceeded quite
conventionally, as did Bulter later, to suggest as the appropriate therapeutic
measures the traditional penal sanctions (Laws, §862c-E).
23. M. J ahoda, Current Concepts ofPositive Mental Health, pp. v, 3, and wg-
I IO.
24- Ibid., p. I I I.
25. Ibid., p. ix.
26. Ibid. See especially pp. I8-2I and 73-6.
27. K. Soddy (ed.), Cross-Cultural Studies in Mental Health, p. 59·
28. Ibid., p. 65.
29. Jahoda, p. 3·
30. Soddy, pp. 70 and 106. This tendency is noticed in their own way
I20 CRIME OR DISEASE?

by another International and Interprofessional Study Group convened by

the World Federation for Mental Health: Soddy and Ahrenfeldt [2], pp.
I52-4. Compare alsojahoda, pp. 78-g; Wootton, p. 220; and Soddy and
Ahrenfeldt [I], pp. 95 ff.
3I. Wootton, p. 203.
32. Ibid., p. 207.
33· Ibid., p. 240. Lady Wootton's argument was in fact accepted by the
judges of England when they gave the answers to questions from the House
of Lords from which the authority of the McNaghten Rules derives. The
principle involed has certainly been followed in several Common Law
jurisdictions. It has however traditionally been attacked by psychiatrists
who deny that there are isolated delusions not symptomatic of some more
general and fundamental disorder. In defence of the lawyers it should be
pointed out that the judges in their answers were most careful to emphasise
that they were following the contrary assumption; and it was this contrary
assumption which was presented as the expert testimony at the original
trial. See chapter VI of Sheldon Glueck [I]: the fourth question and answer,
referring to Lady Wootton's point, are quoted in full on p. I69. Compare
also Walker [2], chapter v. We are, I am glad to notice, agreed (p. 103)
that 'if the judges' answers represented the law, McNaghten should have
been convicted'. About this, as about so much else, Queen Victoria was
right (ibid., pp. I88-g2).
34· Wootton, p. 227.
35· Ibid., p. 289.
36. J. E. MacDonald, 'The Concept of Responsibility', in the Journal of
Mental Science for I955, pp. 7I5-I6; quoted by Wootton, pp. 247-8. It is
not often that the present writer is content to be brigaded with 'the religious
and others of that kidney'! But it is, I am afraid, a case of one: 'Of whom to
be dispraised were no small praise' (]. Milton, Paradise Regained, III 55).
37· Bernard Glueck, 'Changing Concepts in Forensic Psychiatry', in the
Journal of Criminal Law, Criminology and Police Science for July- August I954,
pp. I27 and I3o; quoted with comment by Wootton, p. 248.
38. See Note I3, above; which attaches to Section 9 of Part I.
39· This is a good moment to mention A. I. J.\;Ielden's salutary monograph
Free Action.
40. See Note· 36, above, and the text to that note in Part n, Section 3
ad .fin.
4I. Lester King, in Philosophy of Science for I954, Vol. XXI,p. 197. Compare
too G. Caplan's statement in his Principles of Preventive Psychiatry: 'In our
culture, the role of"patient" is associated with the idea of being the passive
victim of some "illness"; even though a person is expected to help himself in
the recovery process, it is felt that the main responsibility for his improve-
ment rests with the doctors and nurses who "treat" him' (p. I02). It is one
thing, and right, to say that the treatment of patients is culturally condi-
tioned. It is another, and wrong, to suggest- as here- that whether a man
who has a disease is or is not a victim of that disease depends on his culture.
42. Boethius, The Consolations ofPhilosophy, IV 6. The resemblance to Plato
is not of course coincidental; for Boethius was steeped in Plato's dialogues
as well as in the writings of Aristotle.
NOTES 121

43· I owe thanks to my former colleague, Michael Akehurst of Keele,

for drawing my attention to the article on 'Consent to Medical Treatment'
by Diana M. Kloss in Medicine, Science and the Law for 1965, from which I
learnt of the us case of Hively v. Higgs ( 1927) 253 p. 263. This decided that
it was an offence to excise tonsils without the patient's consent and without
positive evidence of severe pain. Appeal was made to the legal presumption
that every bodily organ has some function beneficial to the organism. Pre-
sumably this presumption is defeasible in law as in biology. For it is appar-
ently in fact defeated by the notorious falsifying instance of the vermiform
appendix.
44· For an explanation both of the technical label and of the actual
irrelevance to the problem of this common plea see Flew [4], §§2.30-2.31
and 2.42-2.58, especially 2.48.
45· J. L. Austin, Philosophical Papers, p. 140: this is in §3 of 'A Plea for
Excuses', which first appeared in the Proceedings of the Aristotelian Society for
1956/7 and has been reprinted many times elsewhere.
46. J ahoda, p. 111.
47· Ibid.,p. I l l .
48. Karl Popper, The Open Society and its Enemies, chapter IX.
49· The possible gap between on the one hand what is allegedly in my
interest or for my own good, and on the other hand what I myself actually
want, can be of the greatest importance, both theoretically and practically.
There is for instance much political wisdom to be derived from pondering
a statement made by Abdul Kharume, First Vice-President of Tanzania.
His government had recently rounded up all the unemployed of Dar-es-
Salaam and posted them back home to their villages. At the birthday cele-
brations of the ruling - and of course the only legal - party on Saba Saba
Day, he protested his uncomprehending innocence: 'Our government is
democratic because it makes its decisions in the interests of and for the bene-
fit of the people. I wonder why men who are unemployed are surprised and
resentful at the Government ... sending them back to the land for their
own advantage.' See the Dar-es-Salaam press for the following morning
8 July 1967. One is reminded of the story of the three Boy Scouts who told
their Scoutmaster that their good deed had been helping an old lady to
cross the road. 'But why did it need three of you?' he asked. 'She didn't
want to go.'
50. Which is exactly what does happen, left, right and centre. Consider
for instance: 'A man . . . may be angrily against racial equality, public
housing, the TVA [Tennessee Valley Authority] financial and technical
aid to backward countries, organized labour, and the preaching of social
rather than salvational religion .... Such people may appear 'normal' in
the sense that they may be able to hold a job and otherwise maintain their
status as members of society; but they are, we now recognize, well along the
road toward mental illness.' (Overstreet, p. 115.) Compare, moving back
from new left to old right, the no less pretentiously clinical and scientific
claim: that 'Industrial unrest to a large degree means bad mental hygiene,
and is to be corrected by good mental hygiene. The various antisocial
attitudes that lead to crime are probleins for the mental hygienist. Depen-
dency, insofar as it is social parasitism not due to mental or physical defect,
122 CRIME OR DISEASE~

belongs to mental hygiene.' (Quoted, from an unfortunately anonymous

source, in Bromberg [1], p. 217.)
Two other examples are non-political. The first comes from Dr M. J.
Rosenau's paper on 'Mental Hygiene and Public Health' in Mental Hygiene
for 1935 (p. g): 'The ultimate in mental hygiene means mental poise, calm
judgement, and an understanding of leadership and fellowship - in other
words, cooperation, with an attitude that tempers justice with mercy and
humility.' The other is attributed to Dr O'Doherty: 'Mental health means
a great deal more than mere absence of mental illness.... Among other
things it demands good interpersonal relations with oneself [sic], with
others, and with God.' (Quoted, presumably from one of the working papers
prepared for his Scientific Committee, by Soddy, p. 73.)
51. Such discrediting by diagnosis is nowdays so popular as to demand a
label: the argument, perhaps we should say, not ad baculum but ad pulvinar-
not, that is, to the club but to the couch. For an amusing account of its
archetypal employment within Freud's own Fellowship of the Ring, see
Szasz [3], pp. 61-6.
52. Soddy, p. 70.
53· As a fairly complex exercise consider 'the dialectics ofliberation' pro-
pounded by Herbert Marcuse. This is an egregiously horrid example. Its
author scarcely tries to pretend that his special brand of revolutionary
authoritarianism will be in the interests of those upon whom it is to be im-
posed, much less that they could themselves be induced to choose it. Thus in
a notorious essay, fittingly given the Newspeak title 'Repressive Tolerance',
Marcuse makes it about as plain as he ever makes anything that his revolu-
tion requires 'the dictatorship of an elite over the people'.
It is indeed a main grievance ofMarcuse against the established capitalist
order that the despised 'silent majority' does not want, and has no interest
in, his revolution: 'By the same token, those minorities which strive for a
change of the whole itself will ... be left free to deliberate and discuss, to
speak and to assemble ... and will be left harmless and helpless in the face
of the overwhelming majority, which militates against qualitative social
change. This majority is firmly-grounded in the increasing satisfaction of
needs, and technological and mental co-ordination, which testify to the
general helplessness of radical groups in a well-functioning social system.'
(Marcuse etc., pp. 134 and 107-8: the term 'Newspeak' comes from George
Orwell's nightmare vision, 1984.)
There would, as perhaps unwittingly Marcuse himself here implies, for
sure be something very wrong with a set-up in which such Marcusian
radicals had substantial power: it could not be, for that very reason, 'a well-
functioning social system'.
54· Consider for example Sir Leslie Stephen's response to the charge
that unbelief is essentially negative, whereas belief must be, commendably,
positive: ' ... belief and unbelief are the very same thing. It is a mere ques-
tion of convenience whether I shall express myself in negative or positive
terms; whether I shall say "man is mortal" or "man is not immortal".'
(L. Stephen, An Agnostic's Apology, p. 45.)
55· This was my own favourite message among those available on post-
cards in campus stores in the U.S.A. during the academic year 1970/1. It
NOTES 123

always, by contrast, reminded me of the title of one of the textbooks stacked

in the bookshop on the University of Minnesota campus during the summer
of I 954, Psychology: the Science of Human Adjustment. If there is to be an ac-
ceptable definition of 'mental health' in terms of adjustment, then 'adjust-
ment' will have to be construed in the same sort of manner as it was earlier
suggested that 'function' must be interpreted in the present context: not, that
is, as a matter of behaving in this conformist as opposed to that nonconfor-
mist way; but rather as a matter of possessing some sort of capacity to cope-
a capacity which may be actualised in various ways at the choice of the
person in question. (See Part n, Section 4, above.) Unless this condition is
met, mental health, conceived as adjustment, must become, what in fact it
too often has been, yet another new verbal overcoat to cover the shabby,
time-serving, principles of the Vicar of Bray. Compare Wootton, chapter
vn, passim, but especially (iii).
56. These clauses, which are the ones always cited, come from the answer
of the judges to questions two and three combined. The full text is given
in Sheldon Glueck [I], pp. I 78--g.
57· For this and other material on 'The History of the Legal Tests'
compare Glueck [I], chapter v.
58. Parsons v. State (I886) 8I Ala. 5772 So 854.
59· ]. F. Stephen [2], pp. 2o-1. The brackets indicate the area of dis-
pute. By the way: Weihofen (Insanity as Defence in Criminal Law, p. 4I I) con-
founds Sir James Fitzjames Stephen, the legal authority cited here, with
Sir Leslie Stephen, cited in Note 54, above, Editor of the British Dictionary
of National Biography and father of Virginia Woolf.
6o. Report [I], p. gg: compare §3I7.
6I. American Law Institute, 'Model Penal Code', §4.0I of the Ig62
Official Draft.
62. State v. Jones (I871) 50 N.H. 369 and 394·
63. Durham v. United States (D.C. Cir. I954) U.S. 2I4 F 2d 862.
64. De Reuck and Porter, The Mentally Abnormal Offender, p. 128.
65. And he is properly proud of the record of his institution in ensuring
that that condition has not been satisfied (ibid., p. I28).
66. Abraham Goldstein of Yale Law School reminded the psychiatrist
members of the same Symposium that the insanity defence 'has been not-
ably unattractive to defendants (except when capital punishment was in
prospect) . . . . The reason, of course, is that the insanity defence usually
brings not freedom but commitment for an entirely indeterminate period.'
(Ibid., pp. I88-g.) Thus Daniel McNaghten himself- unlike the fictional
anti-hero of Robert Traver's filmed novel Anatomy of a Murder- did not
walk (or drive) from the court a free man after his acquittal as 'not guilty
on the grounds of insanity'. Instead he spent the remaining twenty-two
years of his life in continuous confinement. He eventually died in Broad-
moor in I86s of tuberculosis.
67. Here ponder the contribution of Dr N. Schipkowensky of the Psy-
chiatric Clinic of the Medical Faculty of the University of Sofia: 'I am
anxious about subjects who have not committed a crime but are potentially
dangerous. In Bulgaria, Article 24 of the Penal Procedure Code provides
for preventive treatment to protect both society and the subjects themselves
124 CRIME OR DISEASE~

from the effects of their psychosis. Such treatment can be ordered only by
the courts.... ' (De Reuck and Porter, p. I28.)
68. De Reuck and Porter, p. I83.
69. I recall especially some of the things written by Dr Henry Yellowlees
out of his lifelong experience of the inhabitants of mental institutions (Yel-
lowlees, To Define True Madness, chapter XIII and passim). Compare the
classical statement of Pinel: 'I have nowhere met, expecting in romances,
with fonder husbands, more affectionate parents, more impassioned lovers,
more pure and exalted patriots, than in the lunatic asylum, during their
intervals of calmness and reason.' (Pinel, p. I6.)
70. Freud [I], pp. 2Ig--2o: this is in Lecture XVII.
7I. Ibid., p. 236: this is in Lecture XVIII.
72. For reasons already explained more fully in earlier sections of the
present part n, Freud ought to have insisted that the symptoms of the mental
illness are, not the outre performances as such, but the lack of control mani-
fested therein. Consider here the theme of Arthur Koestler's novel Arrival
and Departure, in which after a successful psychoanalysis the hero reverts
to his previous revolutionary life-style; albeit no doubt with a greatly in-
creased understanding and control of himself.
73· See my 'Motives and the Unconscious' in H. Feigl and M. Scriven
(ed.), The Foundations of Science and the Concepts of Psychology and Psychoanalysis
(Minneapolis: Minnesota UP, I956). The quotation is at p. I55·
74· Szasz [I], p. 1.
75· Quoted, ibid., pp. 25--6: the original is at Freud [2], pp. I8--I9.
76. Szasz [I], pp. 33-4; and compare the whole of chapter I, passim.
77· Ibid., pp. 46--7.
78. Even in his most classical period Freud himself was capable of writ-
ing:' ... that we cannot dispense with the unconscious part of the mind in
psychoanalysis, and that we are accustomed to deal with it as something
actual and tangible.' (Freud [I], p. 235.) Compare T. R. Miles's Elimin-
ating the Unconscious, an extremely helpful essay in reductive logical analysis.
79· Pinel, pp. 9 and 69.
So. This too I have argued at length in the paper mentioned in Note 73,
above.
81. Consider how it is taken absolutely for granted in the statement: 'An
asylum is no mysterious chamber of horrors, full of things dark and un-
speakable. The slightest personal acquaintance with one dispels for ever all
such absurd ideas; it is simply a hospital for the treatment of brain disease,
and a home for those men and women whose diseases have baffled treat-
ment.' (Yellowlees, p. 47.) Already in I838 Dr Isaac Ray was insisting:
'Mania arises from a morbid affection of the brain. The progress of patho-
logical anatomy during the present century has established this fact beyond
the reach of a reasonable doubt.' (Ray, p. I04.)
82. Walker [I], p. 6I.
83. Walker [2], p. 76.
84. The last clause is necessary since some psychiatrists seem to employ
the term to mean something else, or perhaps nothing. Thus we read, of a
man who had apparently spent his early manhood in the United States
Navy: 'It is noteworthy that Wilton ... had only become aware of his com-
NOTES 125

pulsive homosexuality during the last ten years of his life (he was 42 when
examined).' (Bromberg [2], p. 301.) The mind boggles, and the cheeks
blaze, at the thought of what might be made of this utterance by those who
have served in the ships of the Queen.
For descriptions of some cases of kleptomania, straightforwardly con-
strued, see Ray, pp. I4o-3.
85. Wootton, p. 235· Sir William Blackstone was in his own way making
a similar point when, apropos of the beginning of that practice of 'pious
perjury' which we noticed in Section 2 of Part I, he protested against juries
behaving as if 'the very act of suicide is an evidence of insanity; as if every
man who acts contrary to reason, had no reason at all'; and Blackstone
added, with his usual hacking good sense, 'for the same argument would
prove every other criminal non compos, as well as the self-murderer.'
(Blackstone, IV p. I8g.)
86. See, on the modern extension of the words 'clinic' and 'clinical' away
from their original connection with the ideas of beds and being bedridden,
Wootton, pp. 242 ff.
87. The material for this and the previous paragraph is borrowed from
the valuable Appendix to Dr Karl Menninger (etc.) The Vital Balance.
88. 'Of course one thing he could do would be to live continently: there
are millions of heterosexually inclined people who are continent for one rea-
son or another, and this should be no more difficult for a homosexually
inclined individual.' (Ibid., p. Ig6.) This unfashionable insistence upon the
possibility of self-control is even more relevant in other contexts, in which
there is not at present any equivalent of the Pill available to reduce the
price of 'our pleasant vices'. It has also been noted for use in evidence
against its author in Part 111.
8g. Freud [3], p. 3·
go. For instance: 'The perversions are ... anatomical transgressions of
the bodily regions destined for sexual union ... .' (Ibid., p. I5.)
gr. Wilbur and Muensterberger, Psychoanalysis and Culture, pp. 252-3. I
could, but will not, forbear to quote Sir Winston Churchill: ' ... restrict
as much as possible the work of these gentlemen, who are capable of doing
an immense amount of harm with what may very easily degenerate into
charlatanry. The tightest hand should be kept over them, and they should
not be allowed to quarter themselves in large numbers upon the Fighting
Services at the public's expense.' (Churchill, The Second World War, IV p.
8Is.)
92. See Note 59, above, and text to that note in Section 7·
93· To be strictly fair, and perhaps almost more damaging, it has to be
said that Dr Eissler does actually cite one single and singular case of de-
tected malingering- as he maintains - ' rapidly changing into a malignant
psychosis'. He then proceeds directly to his unreservedly universal conclu-
sion, already quoted, that 'malingering is always the sign of a disease'.
(Wilbur and Muensterberger. p. 252.)
94· Menninger (etc.), p. 208: the italics are all, and all of, his. The first
person to make this sort of suggestion seems to have been the German
psychiatrist Ganser. For a description of his 'Ganser Syndrome' see Noyes,
pp. sos-6.
 CRIME OR DISEASE?

95· This is provided by Dr Harry F. Darling in his article 'Definition of

'Psychopathic Personality' in the Journal of Nervous and Mental Disease for
February I945, at p. I25. I owe this reference to Lady Wootton.
g6. Report [2] 'Minutes of Evidence', Eighth Day, p. 287.
97· Ibid., Thirtieth Day, p. I225. The witness was Dr W. A. Heaton-
Ward, Medical Superintendent of Stoke Park Hospital.
g8. Margolis, Psyclwtherapy and Morality, p. I I I. I quote here merely to
provide an occasion to mention this book, and especially to recommend its
immediately subsequent criticism of Edmund Bergler's egregious essay
Homosexuality: Disease or Way of Life. Bergler shows the paternalistic effron-
tery of the psychiatrist as Guardian by maintaining (p. g) : 'Homosexuality
is not the way of life these sick people gratuitously assume it to be, but a
neutotic distortion of the total personality.'
gg. De Reuck and Porter, p. I22.
IOO. Wootton, p. 250.
101. Ibid., p. 251.
I02. Ibid., p. 253·
103. Ibid., p. 238. The quotation comes from a paper by Dr Aubrey
Lewis on 'Health as a Social Concept' in the British Journal of Sociology for
I953· Dr Lewis stands out among his psychiatric colleagues for his clear
appreciation of some of the pitfalls which beset this notion of mental disease.
104. J. Glover, Responsibility, pp. I37 and I38: hearts, by the way, must
warm to an author who lets pass the misprint 'pre-martial sex' (p. I8g).
Compare Stafford-Clark, pp. I I 7-20.
105. Walker [r], p. 87.
r o6. It seems that the effiuxion of the first twenty years after the first of
these two statements was made brought no improvement in the situation:
see, again, Walker [I], p. 87.
I07. Menninger, p. 254: his italics, here and later.
108. Ibid., p. 256. Bradley's dictum will be quoted, once again, below.
109. Menninger, p. 257.
I 10. The qualification is necessary since both National Socialist and
Leninist Socialist regimes from the beginning explicitly repudiated ideals
embodied in the Hippocratic Oath. For the latter which, unlike the former,
still persist and proliferate see for instance Field, Doctor and Patient in Soviet
Russia, pp. I 73 ff., and passim.
I I I. On the degeneration, in what one of my most cross-grained graduate
students used to call 'this Age of the Busybody', of the word 'client' see
Lady Wootton's wickedly entertaining chapter IX, 'Contemporary Attitudes
in Social Work'. One cannot, she muses (p. 28g), 'easily imagine any social
worker's "client" saying "I must get hold of the services of a caseworker"
as he might say: "I must find a doctor or a solicitor".'
I I2. Eysenck, who is so rightly sharp about the lack of hard evidence to
support the therapeutic claims of the psychoanalysts, fails to take this point.
In his Crime and Personality, he seems to notice no difference: between on the
one hand the employment of conditioning to cure a patient who wants to
be cured of enuresis (pp. I66-7); and on the other hand the inescapable
'brain-washing' of hostile prisoners of war (p. I 8 I).
I I3. The standard example of such continuity and even intensification
NOTES 127
through revolutionary change is that chronicled by Alexis de Tocqueville's
classic L'Ancien Regime. A fictitious and frivolous case is perhaps more appro-
priate to our immediate concerns. Two male homosexuals were admiring
the passage of the current Playmate of the Month: 'She almost makes one
wish one were a Lesbian.'
I I4· Coke, Third Institute, chapter I.
I I5. Bradley [I], pp. 26-7. Things look a little different to those scien-
tists to whom the very word 'justice' is an irritant: 'That he or she has
broken the law gives us a technical reason for acting on behalf of society to
try to do something that will lead him to react more acceptably, and which
will protect the environment in the meantime.' (Menninger, p. I8.) For
some recent philosophical discussion, see Acton, The Philosophy of Punish-
ment, passim. Another and especially relevant piece, which I hope will soon
be similarly anthologised somewhere, is Alf Ross, 'The Campaign against
Punishment'. This is at present buried in Scandinavian Studies in Law for I 970,
pp. I I I-48. By the way: anyone proposing to write a well-nourished book
on The Roots of Crime really ought to learn what the lex talionis is. For 'castra-
tion ... for some sexual offences' is a case; not of an eye for an eye, a tooth
for a tooth, but of 'if your (or, rather, his) eye (penis) offends thee (her,
they should) pluck it out (off)". See E. Glover, The Roots of Crime p. 389.
I I6. For the classical development of such thoughts, see Thomas Hobbes,
Leviathan, especially chapter xm; and compare Flew [3], pp. I63 ff. Since
the nomological notion of cause is essentially connected with such subjunc-
tive conditionals it was, quite simply, absurd for Mr A. J. P. Taylor to
pontificate that members of his profession must never be con~erned with
what might have been: 'The historian should never dogmatize about what
did not happen. We are not entitled to say that war would have been over
sooner if Brooke's advice had been followed more closely.... Maybe so:
maybe not. The experiment was not tried; therefore we can never tell.'
(Review of Lord Alanbrooke's diaries, in the Manchester Guardian for
2 November I959·) On the general point about the notion of cause see
Flew [I], chapter VI.
I I7. See Note 66, above; and compare again Hart, chapters I and VII.
118. (I966). 49 Misc. 2d 533, 267 N.Y.S. 2d 920 (Ct Cl.)
I I9. Soddy, p. I86.
I20. Plato, The Republic, §4I4; and compare Sections 8 and 10 of Part I,
above.
I2I. See 'The Frontal Lobes' by G<ista Rylander in, I think, the Annals
of the Royal Norwegian Medical Association, Vol. XXVII, p. 696. (I have not
been able to check this reference, which I take from notes made when I
first read this article in the early I950s).
I22. Ogden, The ABC of Psychology, p. 43· The learned Ogden here sup-
plied no reference. Search both in Fulton's massive biography of Cushing,
and then in the more hopeful papers listed there, was abortive.
I23. Skinner, Beyond Freedom and Dignity, p. I9, and passim.
I24. Originally in the Twentieth Century for I954, and later in Lewis,
Undeceptions, pp. 242-3.
I 25. Yet this point was completely mistaken by Ernest Jones; following
Freud [3], XII, §2. See my paper in C. Hanly and M. Lazerowitz (eds.),
Psychoanalysis and Philosophy (New York: International UP, I970). Compare
 CRIME OR DISEASE~

G. B. Thomas, 'He Could Not Have Chosen Otherwise' in the Southern

Journal of Philosophy for Winter I967. The point was made earlier by J. F.
Stephen [I], 11 pp. I02-3: according to Bradley [I], p. 48, by Hegel;
and, in effect, by Aristotle in the Nicomachean Ethics III (i).
I 26. This basic liberal principle is too often overridden by psychiatrists
in their more missionary moments. Consider for example the assertion,
taken as too obvious for argument: 'If we establish that prostitution is a
sign of backwardness, it is incumbent on the State to use every device,
psychological and sociological, to remedy the defect.' (E. Glover, p. 262.)
I27· Menninger, p. I36. As the punctation indicates, these words are
here put into the mouth of a dialogue character. But there is no reason to
think that Dr Menninger would repudiate them. The same unsound prin-
ciple provides the nerve of one of the crucial arguments in Homosexuality:
Disease or Way of Life (Bergler, pp. 7--g). It was also basic in the final psy-
chiatric report in the case of james Cooper, pp. 9o-I, below.
I28. Quoted in Szasz [2], p. 249·
I29· Glueck [I], p. 64. The author's outraged comment on the following
page is too good - or too bad - to miss: 'This woman . . . was released on
probation! Since then, she has worked in a factory for six months, on a job
provided by the probation officer, but has again been arrested, for the same
offence, and probation has again been recommended.' Contrast that with
this recent and more open-eyed assessment: 'For the young woman of
health and vitality, with little inclination for employment entailing hard
work, long hours and a comparatively small salary, the attractions of prosti-
tution are great. Such a woman is unlikely to listen to pleas as to the uncer-
tainty of the future, for no employment which she would find agreeable, or in
which she would be likely to be retained for any length of time, would offer
greater security, financially or emotionally.' (Smith, Women in Prison, p. 40.)
I30. Berg [2], p. I90.
I31. Not all of us however would approve forcible commitment to a
mental hospital as the final preventive. Contrast Dr F. J. Braceland, quoted
in Szasz [2], p. 61. Braceland claims nevertheless to be 'just as much inter-
ested in people's rights as anyone else'.
I32· See Dr F. Wiseman on 'Psychiatry and Law: Use and Abuse of
Psychiatry in a Murder Case' in the American Journal ofPsychiatry for October
I96I; and compare Szasz [2], pp. I 54-B.
I33· Yet another argument which should be accorded more weight than
it usually is, is that any extension of the scope of the criminal law to cover
gambling, private sexual deviations and other 'crimes without victims' must
involve some diversion of enforcement effort which would be better directed
to the basic task of protecting the public from violence and robbery. See
for instance Hawkins and Morris, The Honest Politician's Guide to Crime Control,
chapter I. By the way: while I appreciate their use of material from my 'The-
ology and Falsification' in a typically forceful and entertaining attack on
the myth of an invisible empire of crime, I still believe that such quotations
ought to be acknowledged. (Ibid, pp. 2 I I-I 2; compare Flew and Macintyre
New Essays in Philosophical Theology, pp. 96--g.)
I34· Szasz [2], pp. 84-5 and 20o-4.
I35· The most comprehensive secondary source known to me, and that
NOTES 129
in which authority for all my statements can be found, is the first part of a
two-part review article by I. F; Stone: 'Betrayal by Psychiatry' in the New
'rork Review of Books, Vol. XVIII, No.2 (10 December 1972).
I 36. This suggests an interpretation of an enigmatic and disturbing state-
ment in one of the classics: ' . . . persons practically acquainted with the
insane mind' are well aware 'that in every hospital for the insane are pati-
ents capable of distinguishing between right and wrong, knowing well
enough how to appreciate the nature and legal consequences of their acts,
acknowledging the sanctions of religion, and never acting from irresistible
impulses, but deliberately and shrewdly.' The author asks: 'Is all this to be
utterly ignored in courts ofjustice?' (Ray, ... Medical Jurisprudence ofInsanity,
p. 344·) Could it be that he was feeling his way towards some new category
of the alien as a possible Condition to defeat imputations of criminal respons-
ibility?
137. H. Jones, Crime in a Changing Society, p. 51.
I 38. As was in fact done by Dr Snezhnevsky in response to an intervention
by the physicists Peter Kapitza and Andrei Sakharov. The same Dr Snezh-
nevsky as leader of the Soviet delegation to the Mexico City conference of
the World Psychiatric Association was later charged with the task of ensur-
ing that the conference should not respond to appeals for help from Sakharov
and others; an assignment which, thanks particularly to the co-operation of
the top brass of American psychiatry, he was able to fulfil.
139· Compare the September-October 1964 issue of Fact magazine on
'The Unconscious of a Conservative'. This reported the response of nearly 20
per cent of the 12,000 plus psychiatrists of the U.S.A. to such questions as:
'Do you believe Barry Goldwater is psychologically fit to serve as President
of the United States?' They cast their postal diagnoses two to one against
Goldwater. This willingness of so many to present their political as their pro-
fessional judgement ought to disturb eveh those who might agree with the
former. Perhaps too it throws light on the unresponsiveness indicated in the
previous note: those who live in glass-houses do well to frown on the throw-
ing of stones.
140. E. Jones [2], m p. 98.
141. Menninger, pp. 96-7: punctuation assimilated.
142. De Reuck and Porter, p. 183.
143· Stott, p. 7: 'Albert! not in front of the servants!'
144. See Note 88, above.
145· Boswell's Journal for 10 October 1769.
146. Lange, Crime as Destiny, p. 14.
147. Freud [3], pp. 162 and 148; compare Freud [2], IV p. 388.
148. Brill, Psyclwanalytic? Psychiatry, p. 87.
149. E. Jones [r], II, pp. 181-2: the passage climaxes in the misunder-
standing of Luther mentioned in Note 125, above.
150. A point nicely made by St Augustine in the De Libero Arbitrio, III
(iii). The contrary error is, according to Bradley, an element in 'The Vulgar
Notion of Responsibility'. Bradley writes of his plain man: 'If I am right, he
would be inclined to say, "The growth of my character has been predicted
when I was not; and how then can I have had anything to do with it?" ...
If, from given data and from universal rules, another man can work out the
 CRIME OR DISEASE l

generation of him, like a swn in arithmetic, where is his self gone to ... To
explain the origin of a man is utterly to annihilate him.' (Bradley [ 1], pp. 17
and 20.)
151. On the unsoundness of such apparently seductive argwnents, see
Flew [6], VII 5· The crucial distinction between what is said in the two
clauses in the text is made and denied in successive lines of Measure for
Measure (Act n, Sc. 2):

Angelo: I will not do it

Isabella: But can you if you would?
Angelo: Look, what I will not, that I cannot do.

152. Something very like this final paragraph of Section 2 originally

appeared in my 'Splitting Hairs before Starting Hares' in The Personalist for
Winter 1972. Other materials from the same source have also, with per-
mission, been recycled into the present essay. For more on first such psychic
determinism and then its implications, see the papers mentioned in Notes
73 and 125, above.
153. Eysenck, p. 183.
1 54· How else could we respond for instance to the breathtaking revela-
tions of B. F. Skinner, doyen of American behavioural psychologists?
Under the suitably agressive title Beyond Freedom amd Dignity he crusades
against outworn superstition. A truly scientific behavioural technology will
have no room, it seems, for any anthropomorphic ideas about man: 'Al-
though physics soon stopped personifying things ... it continued for a long
time as if they had wills, impulses, feelings, purposes, and other fragmentary
attributes of an unwilling agent.... All this was eventually abandoned,
and to good effect.... ' Yet, deplorably, 'the behavioral sciences still appeal
to comparable internal states'. We cannot therefore be surprised, although
we are supposed to regret, that 'Almost everyone who is concerned with
human affairs- as political scientist, philosopher, man ofletters, economist,
psychologist, linguist, sociologist, theologian, anthropologist, educator, or psy-
chotherapist- continues to talk about human behaviour in this prescientific
way.' (Skinner, pp. 8 and g.) Noam Chomsky does a splendid hatchet job
in the New York Review cif Books, Vol. XVII, No. 11 (30 December 1971.)
155· Descartes, Principles cif Philosophy, 1 (xi) and (xli). One modern dis-
cussion of this inference is between C. A. Campbell, C. K. Grant andj.J.C.
Smart in Mind for 1951, 1952 and 1961. The special case in which a man
'shows his freedom' by falsifying some prediction about his own conduct
was neatly treated in a long note in Hume's first Inquiry, VIII (i); and much
earlier during the Italian Renaissance, as the well-read Hwne perhaps
knew, by Lorenzo Valla in his dialogue 'On Freewill'. It may therefore
provoke interesting reflections to notice that one of our Oxford contempor-
aries recently credited the discovery of this case to another, the present
Warden ofWadham. (J. Glover, p. 26.)
56. Luther, De Servo Arbitrio, v (viii).
I 57· Ibid., v (vi). The passage continues: 'It is not for us to inquire into
these Mysteries, but to adore them. If flesh and blood take offence here and
grwnble, well, let them grumble; they will achieve nothing; grumbling will
NOTES

not change God! And however many of the ungodly stumble and depart,
the elect will remain (cf. John, VI 6o ff.)'
158. Ibid., II (viii). That Aquinas recognised substantially the same impli-
cations of the same theist premises can be seen in the Summa contra Gentiles,
111 67, 88-g, and 152-3; and compare Flew [4], §§2.34-2.41.
159. De Servo Arbitrio, II (vii).
160. Lucas, The Freedom of the Will, p. 12; and compare p. 27.
161. It would, generally, be an enormous step forward if everyone think-
ing of bursting into print in this area would first settle down to a short but
catholic course of classical reading. One excellent programme would be to
study the relevant sections of all the works mentioned in Schopenhauer's
prize essay on 'The Freedom of the Will'; and then to follow this with one
or two contemporary collections, such as Hook. Equipped by this modest
propaideutic, the author of a book on Fate, Logic and Time would not, while
fresh om of an Ivy League graduate school, take it absolutely for granted
that: if a 'man has freewill', in the sense of the 'power to perform ••. actions
other than those which he does, in fact, perform'; then, 'consequently,
certain human actions are inherently unpredictable.' (Cahn, pp. 1 and 3.)
Nor again would an acute and well-established Oxford philosopher, speak-
ing of the idea that Determinism and action are compatible, broadcast the
observation that this is a thesis 'which in fact has had sponsors here and there
since at least the time of Hobbes.' (G. J. Warnock, in Pears (ed.), Freedom
and the Will, p. 70.) For this is not quite how one describes what one knows
to have been maintained not only by Hobbes but also in their various ways
by Locke and by Leibniz, by Hume and by Mill; to say nothing of Aquinas,
of Luther and of Jonathan Edwards.
162. Again, in the De Servo Arbitrio, Luther chides 'the mistake, that, in
the matter of merits and rewards, we ponder unprofitable thoughts and
questions about worthiness (which is non-existent) when we ought to be
discussing consequence alone. Hell and the judgement of God await the
wicked as a necessary consequence' (II (xv).) Compare, both here and im-
mediately below, 'Freedom and Resentment' in Strawson (ed.), Studies in
the Philosophy of Thought and Action.
163. Bromberg and Halleck, Psychiatric Aspects of Criminology, pp. 66-7.
The author cited, M. D. Wolfgang, is a sociologist rather than a psychi-
atrist, urging that the members of his own particular academic craft union
should also have a cut of the action. So he concludes: 'if determinism is the
appropriate approach ... then morethan a psychic determinism is required';
for every man 'is the product of the social system that helps him to develop
his capacities legitimately or that forces him to use them illegitimately..• .'
(Ibid., pp. 6g-7o.) This is a very typical cheat: a universal Determinism
cannot thus discriminate in favour of the criminal.
164. Mottram, The Physical Basis of Personality, p. 115. From whom?
165. Lucas, pp. 110 and 114. I have developed the contrary argument
in 'A Rational Animal' in J. R. Smythies (ed.), Brain and Mind (London:
Routledge and Kegan Paul, 1965).
166. Sheldon Glueck [2], p. 6.
167. Lucas, pp. 20 and 27.
168. Hume, A Treatise of Human Nature, Introduction.
 CRIME OR DISEASE?

169. c. Lombroso, Crime: Its Causes and Remedies, p. 380. I have been
unable to trace a copy of Rondeau's work in either the British Museum or
the catalogue of the Bibliotheque Nationale. Lombroso is himselfrequoting
from a fellow Italian, It would be mean not to share with those who may
never have occasion to read Lombroso the thought (p. 196): 'In France the
greatest tendency to sexual crimes is found among the shoemakers, - a fact
to be referred to their alcoholism, and to the effect upon their genital organs
of their position while at work.'
170. C. Darrow, Crime: Its Cause and Treatment, pp. v, 96, and 117.
171. Quoted by Walker [2], p. 89.
172. Bradley [2], pp. 155 and 156: 'Some Remarks on Punishment' was
first published in 1894.
173. See for example Neustatter, Psychological Disorder and Crime.
174. K. Friedlander, The Psychoanalytic Approach to Juvenile Delinquency,
p. 193· I should perhaps say, although I do not think it affects any issues at
this point, that she is supposed to be meaning by 'delinquent' anyone whose
'attitude towards society is such that it will eventually lead to a violation
of the law'. (p. 77)
175· Berg [I], p. 36: punctuation assimilated.
176. M. Balint 'On Punishing Offenders', in Wilbur and Muensterberger,
p. 262.
177. Dr Edward Glover talks (p. 76) of 'the seeming [sic] paradox that
the criminal who inflicts suffering on society is himself a victim of uncon-
scious suffering'. Can unfelt pains offset real sufferings?
178. Bradley [1], p. 48: italics removed.
179· Bromberg [2], p. 50: the sneer quotes are his.
180. Dostoievsky, Crime and Punishment, 1 2.
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either the text or the notes. It also omits literary and other classics available
in several differently paginated editions, since in these cases it seemed better
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field, Illinois: C. C. Thomas I968).
CAHN, S. M., Fate, Logic and Time (New Haven: Yale UP I967).
CAPLAN, G., Principles ofPreventive Psychiatry (London: Tavistock Press I964).
CHURCHILL, W. S., The Second World War (London: Cassell I948-54).
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1 34 CRIME OR DISEASE?

FLEw, A. G. N., [4] God and Philosophy (London and New York: Hutchinson
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Index of Personal Names
This covers only pp. viii-132 inclusive; and it does not include the names of
Gods or of fictitious human persons.
Acton, H. B. 127 Capone, A. 30
Ahrenfeldt, R. H. r 20 Carrara, F. r r 7
Akehurst, M. 121 Charcot, J.-M. 6r, 62
Alanbrooke (Lord) 127 Chomsky, N. 130
Aquinas 131 Churchill, W. S. 125
Aristotle r 20, r 28 Coke, E. 82, 127
Augustine (St Augustine of Hippo) Cooper, J. 90-r, 128
118, I29 Copernicus, N. 106
Austin, J. L. 45, r 2 r Cushing, H. 85--{), 88, 101, 104, 106-7,
127
Balint, M. r 14, 132
Barton, W. 27, 46 Darling, H. F. r26
Bayle, A. 77 Darrow, C. r ro, 132
Bazelon (Judge) 53 Dennison, S. 83-5, 94
Bentham, J. 43-5, 49-51 De Reuck, A. V. S. 123, 124, 126, 129
Berg, C. 89-go, r 13-14, 128, 132 Descartes, R. r, ror, ro8, 130
Bergler, E. 126, 128 Donnison, R. S. xii
Berkeley, G. xi Dostoievesky, F. ix, 115, 132
Binet, A. 89
Bittner, E. 56
Edwards,]. 131
Blackstone, W. 125
Eissler, K. R. 71-2, 125
Blythe, R. xii
Erasmus, D. 103
Boca, P. 77
Erskine (Lord) 64-5
Boethius 42, 120
Eysenck, H. J. r 26, r 30
Borgia, C. 93
Boswell, J. 129
Braceland, F. J. 128 Feigl, H. 124
Bracton (Judge) 51 Field, M.G. 126
Bradley, F. H. viii, 19, Bo, 82, I r r, 119, Fitzherbert (Judge) 5 r
126, 127, 128, 129, 132 Flew, A. I 17, 1 rg, 121, 127, 128, 130
Brill, A. A. 98, r 29 Floyd ('Pretty Boy') 87
Bromberg, w. I 15, 122, 124-5. rsr, Francis (St Francis of Assisi) 30
132 Freud, S. x, 59-64, 70, 89, 94, g6-g,
Brooke, A. See Alanbrooke (Lord) 113, 122, 124, 125, 127, 129
Briicke, E. W. von 64 Friedlander, K. x, r 12-13, 132
Burkhardt, J. 93 Fulton, J. F. 127
Butler, S. 21-4
Ganser, S. J. M. 125
Caesar, C. J. 62 George III (King) 64
Cahn, S. 131 Gilman, C. go
Calvin, J. 102 Glover, E. 127, 128, 132
Campbell, C. A. r 30 Glover, J. r 26, r 30
Caplan, G. 120 Glueck, B. 34, r 20
 CRIME OR DISEAS E r

Glueck, S. 120, 123, 128, 131 Lewis, A. 1 26

Goldstein, A. 123 Lewis, C. S. 86, 127
Goldwate r, B. 129 Lincoln, A. xi
Grant, C. K. 130 Locke, J. 131
Lombrosco, C. wg, 132
Hadfield, J. 64-5 Lucas, J. R. 131
Haldane, J. B. S. 97 Luther, M. 86, gg, 102-4, 106, 129,
Hale, M. 51, 104 130, 131
Halleck, S. L. 1 3 I
Hampshi re, S. N. (Warden of Wad- MacDona ld, J. E. 120
ham) 130 McGrath , R. G. 56
Hanly, C. 127 Macintyr e, A. C. 1 28
Hart, H. L.A. 119, 127 McNaght en, D. 51, 52, 71, 120, 123
Harvey, W. 1 Mahan, A. T. 79
Haslam, J. 1 10 Malatesta , S. 93
Hawkins, G. 128 Mao Tse-tung 41
Heaton-W ard, W. A. 126 Marcuse, H. 122
Hefner, H. 41 Margolis, J. 126
Hegel, G. W. F. 128 Maudsley, H. 114
Heller,]. 4 Melden, A. I. 1 20
Heller (Judge R. S. ) 83 Menninge r, K. 2-3, 72, 79-81, 95-6,
Hippocra tes of Cos 47, 57, 81, 92, 126 I I I, I 17, 125, 126, 127, 128, 129
Hobbes, T. 127, 131 Miles, T. R. 124
Ho Chi Minh 119 Mill, J. S. 46, 131
Hook, S. 131 Milton, J. 120
Hudson, W. D. xi Moliere, ]. P. 117
Hume, D. 43, g6, 108-g, 130, 131 Morris, N. 128
Mottram, V. H. 131
Jahoda, M. 26-7, 29-30, 46, 49, 119, Muenster berger, W. 125, 132
121 Murray, J. 16
James, W. 85 Mussolini, B. 92
Johnson, S. 97
Jones, E. g8, 127, 129 Neustatte r, W. L. 132
Jones, H. 118, 129 Nietzsche, F. 25
Joseph II (Emperor ) 109 Noyes, A. P. 125
Jung, C. G. 63
O'Dohert y, M. 122
Kapitza, P. 129 Ogden, C. K. 127
Kennedy, J. F. 27 Orwell, G. 122
Kenny, A. 119 Ounsted, C. 95
Kharume , A. 121 Overstreet, H. A. 1 2 1
King, L. 40-1, 120
Kinsey, A. 68 Pears, D. F. 131
Kloss, D. M. 121 Pinel, P. viii, 17, 61, 63, 124
Koestler, A. 124 Plato viii, 11, 13-19, 24-5, 35-7, 46,
Kraepalin , E. 68-g 50, 63, u8, ug, 127
Popper, K. 47, 121
Landers, A. 7, 23 Porter, R. 123, 124, 126, 129
Lange, J. 97, 129 Pound, E. 91-2
Lasswell, H. viii, 18, 119 Pratt, D. 91-2
Lazerowitz, M. 127
Lee, R. xii Radzinowicz, L. 1 1 7
Leibniz, G. W. 131 Ray, I. 124, 125, 129
Lenin, V. I. 19, g2, 126 Rees,Jr. 2-3, s-6, g, 15, I7, 32, 117
INDEX OF PERSONAL NAMES 129

Rondeau, 109-IIO, I32 Stott, D. H. 9, ro, 96, 109, I I2, I 18,

Rosenau, M.J. I22 129
Ross, A. I27 Strawson, P. F. 131
Rousseau, J.-J. 49 Szasz, T. S. 61-2, 65, 91, I 18, 119,
Russell, B. A. W. I9, I I9 I22, I24, 128
Rylander, G. I27
Taylor, A. J.P. 127
Sakharov, A. I29 Thomas, G. B. 128
Samsonov, N. N. 92 Tocqueville, A. de I 27
Schapiro, A. 56, 57, 58 Travers, R. 123
Schiplowensky, N. I23
Schopenhauer, A. I3I Valla, L. 130
Scriven, M. I 24 Verwoerd, H. 9I
Shakespeare, W. 3-4, I6, I30 Victoria (Queen) 120
Shaw, G. B. 2I
Skinner, B. F. I27, I30 Walker, N. 120, 124, 126, 132
Smart, J. J. C. I30 Warnock, G.J. 131
Smith, A. I 28 Weihofen, H. I23
Smith, G. 93-4 Wilbur, G. B. 125, I32
Smythies, J. R. I3I Wilson, J. I 17
Snezhnevsky I 29 Wiseman, F. 128
Soddy, K. 28, I I9-20, I22, I27 Wolfgang, M.D. 131
Somerville (Judge) 52 Woolf, V. I23
Stafford-Clark, D. I26 Wootton, B. (Lady Wootton) xi, 31-5,
Stalin, J. V. 92 67, 75-6, 79, II7, I20, 123, 12 5, I26
Stephen, J. F. 52, 7I, I23, I28 Wordsworth, W. I 13
Stephen, L. I22, I23
Stone, I. F. I29 Y ellowlees, H. I 24