Mental Health and the Law

Monday, August 6th, 2012

This month’s issue of Cato Unbound is about mental health and the law, and the strange place of power that our legal system gives to psychiatry. Prof. Jeffrey A. Schaler writes the lead essay, in which he draws on the pioneering work of Dr. Thomas Szasz. Schaler notes that mental illness isn’t like physical illness at all:

“Mental illness” generally refers to how certain people behave. It can also be used to explain why people behave the way they do. It is a fact that there is no literal disease identified by pathologists as mental illness, be it a thought disorder, personality disorder, affective or mood disorder, and/or anxiety-based disorder. In the world of psychiatry and clinical psychology, there are multiple disorders included under each of those rubrics. Mental “disorder” is synonymous with mental “illness.” These are terms used by members of the mental health profession to do and not do certain things to certain people.

The problems here are obvious. Properly speaking, “mental illness” can’t both consist of behavior and also propose to explain that very same behavior. A thing is never adequately explained just by reference to itself. There are diseases of the brain, of course, and Schaler doesn’t deny them. But diseases of the mind are another question altogether. Despite great advances in brain science, it remains the case that the analysis of organic defects of the brain can’t yield a fully satisfying account of irregular or disordered behavior.

Note one other thing Schaler isn’t saying: He’s not claiming that people never behave in strange, inappropriate, disturbing, or violent ways. Obviously they do. He’s claiming only that our explanations for these behaviors, whether in law, medicine, or popular understanding, are conceptually flawed and altogether inadequate.

And yet, on the basis of these same flawed understandings, we excuse some criminals from punishment, and we confine some individuals who have done nothing to harm anyone. This ought to be a cause for concern.

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26 Responses to “Mental Health and the Law”

  1. #1 |  Dave Krueger | 

    Properly speaking, “mental illness” can’t both consist of behavior and also propose to explain that very same behavior. A thing is never adequately explained just by reference to itself.

    This is the most profoundly perfect argument against the psychiatric industry I’ve seen. I don’t recall having read anything that concise and to-the-point by Szasz (not that I’m an expert in his work).

  2. #2 |  John Regan | 

    “A thing is never adequately explained just by reference to itself.”

    It’s also a great argument that our monetary system is screwed up, because the promise to pay cannot be the same thing as the payment, but in our monetary system it is:

    That’s quite far afield of the post, I know, but I thought the similarity of reasoning was worth a comment.

  3. #3 |  SJE | 

    “And yet, on the basis of these same flawed understandings, we excuse some criminals from punishment, and we confine some individuals who have done nothing to harm anyone. This ought to be a cause for concern.”

    Agreed, but you are asking for a deep reconsideration of the purpose of punishment and human behavior, which is something that society and its leaders do not seem capable of doing. In the end, we have to proceed on the basis of incomplete information and understanding, and act in a way to protect society.

    What is DOES mean, IMO, is that we should recognize that punishment/rehabilitation cannot be determined solely at sentencing, and we should look to parole boards etc to reconsider punishment based on the prisoner, and ways to promote rehabilitation. Does anyone think this is likely to happen any time soon? We still lump someone caught peeing in public with violent pedophiles under “sex offenders”

  4. #4 |  M.A.DeLuca | 

    “There are diseases of the brain, of course, and Schaler doesn’t deny them. But diseases of the mind are another question altogether. Despite great advances in brain science, it remains the case that the analysis of organic defects of the brain can’t yield a fully satisfying account of irregular or disordered behavior.”

    This is analogous to trying to describe a programming bug in terms of defects in the hardware it runs on, isn’t it? Isn’t that what a personality is — software running on the hardware of the brain?

  5. #5 |  Jason Kuznicki | 


    That’s one possible model. I may want to ask Schaler about it directly, because I’m not altogether confident that he would support it, and if so, what implications it might have.

    Another model is that of social construction. Today if someone says that their neighbors are casting evil spells on them, we might say that person was paranoid. In another era, we might have gone after the neighbors.

    Not long ago, homosexuals were thought proper subjects for involuntary psychiatric treatment. Now we medicalize — though don’t yet treat — homophobia.

  6. #6 |  Danny | 

    “…we excuse some criminals from punishment…”

    You probably couldn’t fill up a Denny’s with the number of not-guilty-by-reason-of-insanity defendants acquitted by juries each year.

    Anyway, we don’t hold five-year-olds accountable for crimes, because we have a clear enough ‘working knowledge’ that their minds are not capable of being responsible for criminal conduct. We don’t have a perfect theoretical model of a child’s mind, but we know enough, as a practical matter, to make a pragmatic decision not to treat young children as criminals.

    I don’t see our ‘working knowledge’ of mental illness as any different. We don’t have a perfect and comprehensive theory, but we know that somebody who has an earnest conversation with a cigar Indian is not anywhere near the mental stability of a person we would deem ‘sane.’

    I would like to see the large majority of the $$ dumped into the prison-industrial complex shifted over to the provision of comprehensive mental health services, and I would like to see it done yesterday at the latest.

  7. #7 |  Mairead | 

    People are termed “mentally ill” only if their behavior causes “problems”. I put “problems” in quotes because the definition of “problem” is unpleasantly flexible.

    If their behavior causes no problems, they are ipso facto not mentally ill regardless of how psychotic they might be. They can hallucinate in stereo and technicolor, believe they’re a duck or God or the reincarnation of John Lennon, and as long as they don’t bother anyone, they’re considered okay. Strange, probably, but okay.

    On the other hand, completely unexceptional behavior might get the person diagnosed.

    For example, someone who comes to believe in the message ascribed to Jesus that we should look out for one another and who goes into the street and begins to give away the fortune he amassed might well find himself locked up as a loonie at the behest of his greedy children who believe that money is rightfully theirs.

    A rebellious teenage PITA might well get a diagnosis of Oppositional Defiant Disorder. It’s a beauty — it pathologises what would otherwise be seen as “difficult” and vastly irritating, but not disordered, teenage behavior. It’s a “status disorder” — it only applies to pre-adults.

    Someone who routinely violates the legitimate rights of other people without hesitation or remorse is diagnosable as a psychopath (“Anti-social Personality Disorder” in DSM4).

    However, if that someone is wealthy, they are extremely unlikely to get a psychopath diagnosis. If their behavior is bad enough they might get a Narcissistic or Borderline diagnosis, but usually they escape diagnosis altogether. Wealth has its privileges.

  8. #8 |  Cheryl | 

    This is why I have an issue with the general populace, the media and medical pundits immediately jumping on the “mentally ill” bandwagon whenever something tragically violent (Colorado theater shootings, Sikh temple shootings) occurs. Sometimes people are not mentally ill, but they are angry, misguided, ignorant and violent. That doesn’t necessarily make them mentally ill, just horrible people. It’s really convenient, and rather dismissive to say, that anyone who kills someone else, using a rationale that most people would find repugnant or strange or disconcerting, must be mentally ill.

  9. #9 |  MingoV | 

    “… he draws on the pioneering work of Dr. Thomas Szasz…”

    That’s not a good beginning. Dr. Szasz isn’t a pioneer; he’s an egoistic, attention-seeking fraud. He repeatedly proclaims that most people categorized as mentally ill are normal. He also proclaims that most psychiatric treatments (including non-drug analysis therapies) are detrimental. Yet, he treats “normal” people with voluntary conversations about their challenges and problems: exactly the same therapy used by other psychiatrists and clinical psychologists. When asked about severe mental illnesses such as psychosis, schizophrenia, and bipolar disorder, Szasz hems and haws and admits that perhaps *those* conditions really are due to neurochemical problems and require drug therapy. I call him the Great Relabeler: he relabels mental illness and their therapies and pretends he’s a rebel and a pioneer.

    Szasz is correct when he states that some conditions are overdiagnosed. The epidemics” of attention deficit disorder, attention deficit hyperactivity disorder, autism and autism spectrum, and post-traumatic stress disorder are due exclusively to misdiagnosis, mostly by non-psychiatrists.

  10. #10 |  Lefty | 


    Thinking of the mind in terms of hardware and software is a ready analogy but is problematic. Software is external and loaded onto a computer whereas the physical makeup of the brain gives rise to the phenomena of the mind. The mind body split is experiential sure there is no ghost in the machine. You are the machine. From a naturalistic perspective the division of diseases of the brain from diseases of the mind falls apart.

  11. #11 |  Lefty | 

    There’s some odd semantic jumbling here. Mental illness doesn’t consist of behavior. It is the thing itself not what it does. How can you find the underlying disorder unless you observe behavior?

    Heart disease can lead to a heart attack which will present with a variety of symptoms. Heart disease doesn’t consist of it’s symptoms. It can only be diagnosed by observing the symptoms and figuring out what’s causing them.

    This reminds me when the previous South African president claimed hiv couldn’t cause aids because a syndrome can’t cause a disease.

  12. #12 |  Yizmo Gizmo | 

    Regarding criminal intent vs Insanity, how is Jared Loughner
    going to end up in prison, as recently reported. (As opposed to a hospital)
    Guy’s as nutty as a fruitcake.

    “A rebellious teenage PITA might well get a diagnosis of Oppositional Defiant Disorder.”
    I think Romeo and Juliet had this. Also Holden Caulfield. And
    every James Dean character. Also young Marlon Brando. Also
    every teenager with an IQ over 73.

  13. #13 |  Bill Poser | 

    While much of what psychiatrists consider mental illness does not have a demonstrable organic basis, some forms of mental illness are attributable to specific injuries to the brain, and others clearly have an organic basis even though the specific defect is unknown since they can be controlled by medication. It would be wise for the legal system to distinguish between neuropsychiatry, where there is a clear organic basis for mental disease, and the remainder of psychiatry, which is much more speculative.

  14. #14 |  croaker | 

    @7 The scary part is that what some clowns in power were seriously considering diagnosing as ODD: Ron Paul supporters, Audit The Fed supporters, anti-TSA supporters, basically anyone who didn’t kneel and fellate government authority on demand.

  15. #15 |  Charlie Potts | 

    Szasz doesn’t believe that mental illnesses even exist. Thanks to his pioneering efforts we have countless thousands of schizophrenics living on the streets, or, after they encounter the police, rotting in solitary confinement.

    The way the severally mentally ill are treated in the United States is a national disgrace.

  16. #16 |  Bren | 

    MingoV’s critique of the paper’s theory seems right on to me.

    But leaving out the theory what does getting rid of the legal term “mental illness” mean in practice? If we leave what we now label “very mentally ill” people alone until they commit a crime, then put them in jail won’t they still be sick and dangerous when released? Not to metion our jails are terrible, brutal places and doubly so for folks with issues. In the last 30 years we started dealing with the people we used to put in institutions into jails, and I don’t see who it has helped.

    A lot of folks who get involuntary treatment get it because their family requests it. Do we really have to let, say, an anorexic 15 year old daughter, starve to death, because it’s her “right”?

    This seems like a theory with a propensity for casualties. How about some statistical evidence that this works better?

  17. #17 |  The Late Andy Rooney | 

    Good point about people with schizophrenia living on the street (or in jail), but can the blame for this really be placed with Szasz?

    The pendulum has swung; it used to be appallingly easy to have someone committed to a state asylum, for long periods of time and for vague reasons. More than a few of Dr. Freeman’s lobotomy patients were simply teenage troublemakers, and he kept on giving lobotomies until the late sixties. I’d take Szasz over Freeman any day.

  18. #18 |  Jason Kuznicki | 


    You come closest to my views on the subject. There are several things going on here, only one of which is the fact, still undeniable, that most mental illness doesn’t have a clear causal chain from organic disease to dangerous/eccentric/”bad” behavior.

    The other really important thing going on here is that when Szasz wrote, far, far too many conditions and behavior patterns were subject to involuntary confinement and/or treatment. To make things just a touch personal for me, one of these was homosexuality.

    Szasz and his students see nothing wrong with permitting willing patients to get treatment, even if they do view “treatment” for “mental illness” as at best metaphorical. If psychiatry is a religion, then in this sense they are simply tolerant atheists — practice your religion, if you are helped by it, but don’t force it on others. There’s nothing at all inconsistent about this stance. It is rather admirable, if you ask me.

    The other part of the Szaszian challenge might also be met one day. It’s possible that some erratic behavior patterns will eventually come to be associated with as-yet-unknown organic diseases. If that happens, then they will be proven wrong. But it hasn’t happened yet.

    The Szaszian claim here is subject to falsification, which makes it a proper scientific claim. Its counterpart, which rules in mainstream psychiatry, is not similarly situated. One can go on saying “one day we’ll find an organic cause” forever, and that’s not a claim that we will ever likely falsify.

  19. #19 |  MPH | 

    Dr. Fazel, my instructor in the first semester I took of psychiatry at Purdue said that insanity is defined as “behavior sufficiently outside the norm of the society you live in”. What’s insane in Brazil might be normal in Iceland. As stated here, this had to do with behaviors NOT caused by chemical or hormonal problems in the brain.

    Since, in our society, murder, rape, etc. are sufficiently outside our norms of behavior, people who perform such behaviors are, by definition, insane. IMO, that’s not a valid reason for excusing them from prison, it’s a second reason to put them in prison.

  20. #20 |  B Mac | 

    ‘One can go on saying “one day we’ll find an organic cause” forever, and that’s not a claim that we will ever likely falsify.’

    But this is a USEFUL claim because you can sometimes actually find organic causes, then devise drugs and treatments for them. The claim that the treatments help people can be falsified.

  21. #21 |  Stormy Dragon | 

    Unless one is going to reject materialism and posit that the mind is the result of some supernatural process, all human behavior most ultimately be the result of the physical state of the brain.

  22. #22 |  Lefty | 

    @ 21


  23. #23 |  sheenyglass | 

    @11, I think you’ve hit the nail on the head. I’m not a mental health professional, but my understanding of mental illness is that it is a dysfunctional thought pattern that causes suffering. Acting upon thoughts which are produced by this pattern is behavior, but to argue that they are one and the same is eradicating the line between thought and action. Which is precisely the problem with profligate involuntary commitment; the illness is treated as being indistinguishable from the harmful behavior because it creates a risk of that behavior occurring.

  24. #24 |  Leon Wolfeson | 

    Jason; You’re saying we shouldn’t use general anesthetics, since we don’t understand their mechanism of action.

  25. #25 |  Jason Kuznicki | 


    I do not reject materialism. I am however saying that very few forms of behavior can be attributed with anything like a 1:1 correspondence to physical states of the brain.

    For example, sometimes a person behaves psychotically, and it is later discovered that he had a tumor in his brain. But others with tumors don’t act similarly, and most psychotics don’t have tumors or any organic defect at all.

    The materialist hypothesis hasn’t been falsified, but we have nothing like a plausible chain of causality here.


    Your analogy is flawed. It’s not a question of “using” or “not using” mental illness as a category of analysis. You are still free to use it, as long as you accept — for now in most respects, and probably for always in some — this will be a metaphor, not a literal assertion.

    That said, if a patient wants to go to a doctor and receive drugs from him, I will not object. I favor drug legalization and medical freedom, even if some of the ways that people will use drugs will inevitably be disturbing or misguided by my lights, and even if only some ways of using drugs will strike me as wise.

  26. #26 |  David | 

    Awesome! Great Post!