Homeopathy and the Legal Question: An Historical Perspective

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Homeopathy and the Legal Question: An Historical Perspec

History is not so much a spectacle of significant events and dates, as it is a witness to an evolution of consciousness.  And all the outrageous misadventures of history give further evidence to conflicts between established institutions and the inexorable changes that have occurred in human consciousness over time.  Even the adjective, “outrageous”, already betrays a bias that has been created within this very evolution.

One of the chief characteristics of contemporary humanity is what can be called—-the Social Question.  Never before has the relation of one human being to another acquired such complexity, nor demanded such conscious participation. Even in the not-so-distant past, relations were more instinctively determined, and the individual was entirely subsumed by the group, the tribe, the people.   All was bound by blood.  One was merely a member of a religion, a trade, a family.

Today, this is no longer true.  Each of us today assumes at least the posture if not the cachet of individuality.  Simply as a matter of course, we affirm our own unique pedigree.  It is not a criticism but a characterization to say that modern humanity has become increasingly ego-identified. This is especially true in the English-speaking West where a self-absorbed feeling of entitlement has become almost a way of life.  Not only has this contributed to the peril of the global eco-system, it has sometimes put a strain on the existing systems of governance.

Thus, the Social Question…

How are we to find ourselves within the social organism so that all our capacities have an opportunity to develop freely? And how are we to relate so as not to intrude on these same developmental needs in others?  Is a community of individuals an oxymoron? What kinds of social institutions would best serve the growing needs of an increasingly self-conscious humanity?  In a society where each claims the freedom of an independent conscience, what, if any, should be the legal constraints?

As we shall see, all these questions have an obvious relationship to the practice of medicine in general and of homeopathy specifically.

When Samuel Hahnemann in the 1800’s wanted to justify his Theory of Chronic Diseases intellectually, he began by tracing his argument back historically. Similarly, it will serve our purpose—-to understand the present legal situation of homeopathy—to begin with a very broadly painted picture of the historical development of Western Society.

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Actually, whether you look east or west, north or south, all ancient societies begin as theocracies in one form or another.  Whether the deity was male or female, one or many, imminent or transcendent, all social intercourse was entirely mediated by the religious life of the people. Art, custom, justice, education, handicraft, agriculture and commerce—-all was one theocratic amalgam. Everything came out of the priest-craft aristocracy or the Temple Wisdom. Everything was dictated from above. When to plant and when to harvest; what to do and whom to marry; even birth and death was but a validation of the spiritual life of the community. This way of seeing human experience within the physical world prevailed for thousands upon untold thousands of years.  As it was often said: from the very beginning.

A dramatic change in human consciousness begins to appear first with the Greeks and, later, becomes codified by the Romans: the concept of the citizen begins to emerge for the first time in human history.  Nothing like this had ever occurred before. Simply by being a member of the polis, or state, one had rights distinct from, and independent of, any personal or tribal relationship to the deity. Just at this time, a separate sphere of activity begins to emerge from out of the womb of an ancient theocracy. Thus, two separate spheres come to develop with two (sometimes divergent) sets of laws—-the laws of God and the man-made laws that would eventually come from out of all the senates, parliaments, and congresses throughout the Western World. Needless to say, the complete separation and conscious elaboration of these two separate spheres of social activity—-cultural and political—-continues to this day, each having its own distinctly different sets of values.

Then, beginning in the 16th Century with Dutch mercantilism and gaining tremendous momentum in the 19th and 20th Centuries in all countries of the West, but yet another sphere of human social activity begins to liberate itself from the other two: the economic sphere. One has to be clear about the special qualities that pertain within the cultural/spiritual life (which began in theocracy), and those that dominate within the life of human rights established by law, to appreciate that here, too, quite new human faculties have begun to evolve. And on a scale unmatched in unbridled vigor and pervasiveness to anything that had come before!  Simply stated, the pristine economic circuit includes the production, distribution and consumption of goods.  The milieu in which this activity occurs is one in which neither the cultural/spiritual life nor the State—- unless this circuit transgresses human rights—-can have any healthy interest. Of course, hundreds of abuses could be cited where those working within the economic sphere have colluded with those working within the political/rights sphere for certain unjustified concessions but, again, these are socially unhealthy aberrations.

It is important to realize that the historical de-velopment cited above has been organic—-in the Hegelian sense—-and on-going. That is, the West has been altogether set on a course, however obstructed and maligned, of tri-folding the social organism: 1) a freely active culture/spiritual life, 2) a realm in which human rights are elaborated and protected, and 3) an associative-economic realm that meets the needs of all consumers. Granted, this history has been hugely disruptive at times. A case in point was the French Revolution where liberte‘, equalite‘ and fraternite’ nevertheless pointed in the right direction. The difficulty, as always, is in making the process as conscious as possible.  A start can be made by simply articulating the different features of each.  And since the cultural/spiritual sphere is the oldest, it makes sense to begin here:

1) Cultural/Spiritual Sphere: While this particular area of social activity began by being thoroughly embedded in the prevailing theocracy, it is obviously no longer limited to religion alone.  Indeed, one could say that today the principle feature of all cultural/spiritual activity is educational.  This includes religion but it also includes art, science and medicine—-they all have this in common: the up-liftment or recovery of the individual from the purely natural state. Hence, religion functions as a kind of education in ethics; art, in beauty; science, in truth; and (disease being a natural consequence of certain behavioral forces) medicine, in hygiene.  And while the oldest doctorate is a Doctor of Divinity, there are now doctorates in education as well as in art, science and medicine.  The very title of ‘doctor’ points, then, to the educational, spiritual nature of each.

Now in order for art, science, religion, medicine and education to achieve their highest, they must be pursued in unmitigated freedom from all arbitrary constraints from both the State and from the economy. The entire cultural/spiritual life is to be completely excepted from the democratic process. You cannot vote for beauty, truth, goodness, health or even schooling. In the same way, these cannot even be purchased as there is never any guarantee you are getting what you paid for and their intrinsic worth can only be determined on a case by case basis and is, in fact, priceless to the individual concerned. You can only provide for equal access to each but nothing else that pertains to the political/rights sphere, nor to the economy, should intrude into this domain. A state-art, a state-science, a state-religion, a state-medicine and/or a state-education is a three-folding absurdity. None of these activities can be ordered, nor compelled, nor mandated by the State, nor even fairly recompensed financially, as the chief motivation for each is always the love of the deed itself. Thus, cultural/spiritual life should develop in absolute autonomy from the following two spheres—

2) Political/Rights Sphere: Unlike the above, where individual capacities are both encouraged and nurtured, where competition is both healthy and appropriate, here parity reigns.  Within the political/rights sphere, all differences as to race, gender, age, belief, talent, intelligence, physical ability and/or economic status dissolves into a single concept—-the human being. Again, this concept has not been easily attained. Women only got the vote within the last one hundred years, and African-Americans have faced innumerable and, quite frankly, unspeakable assaults to their humanity for well over three hundred years.  But, by now, the concept of equality before the law has become, at least, fully enshrined in the constitutions of most countries of the Western World. Within the United States Constitution, very specific powers as they relate to the federal government are enumerated.  Otherwise, all rights and freedoms are left entirely to the people as spelled out in both the Eighth and Ninth Amendments. (More on this later.)

Besides egalitarianism, the modern rights sphere is charged with other duties. Just as liberty is the milieu in which cultural/spiritual activity is best pursued, so the corollary watchword within the sphere of rights-awareness is responsible oversight. There is still much confusion in this regard, especially between special interest (which should be anathema to this sphere) and the “promotion of the general welfare”. For instance, labor and land are still classified as economic categories in most political science textbooks. Not so. Within a properly functioning threefold social organism, these belong to the administration of the rights sphere.  Unfortunately, a very feeble attempt at safeguarding the dignity of human labor has been attempted with the (terribly inadequate) minimum wage, and an equally insufficient attempt at stewardship by way of the administration of land trusts.

3) Economic Sphere: Perhaps the economic sphere needs no introduction today, so boundless is its compass. Whether conscious or unconscious, everyone, everywhere, is taken up hourly within its orbit.  Yet, being the most recently elaborated field of human activity, it is also the one to which the least critical scrutiny has been directed. That is, thinking has not kept pace with doing. An instance of this is the often-cited basis for exchange—-the rationale given on which all market forces are said to hinge—-supply and demand.  But this hackneyed, seesaw formula distorts reality, falsifies values, and casts an anti-social, competitive cloud over the whole affair.  There is really only human need.  No transaction would ever occur if the producers (supply) had not a need (demand) of their own.  Each term in this so-called formula is thus linked by need. It is injurious to the commonwealth to ruthlessly pit one against the other.  Again, the third term in the slogan quoted above—-liberte’, equalite’ and fraternite’—-points to where needs may be satisfied. Only in fraternal associations of both producers and consumers can the economic sphere be taken beyond Darwinian antagonism.

The same conclusions could be drawn from all the jejune gibberish written about globalization as a kind of economic ‘manifest destiny’.  No one doubts that today’s economy is transnational; that the all-embracing components of the economic circuit—-production and consumption—-are border-less; and that it is, in fact, a world economy. If any conclusions can be drawn from this, it is that Adam Smith’s The Wealth of Nations has been utterly superceded by the nature of economic activity itself.  With whom does a global economy compete?  Humanity as a whole should become the benificiary of a world economy. Unfortunately, multi-national corporations have jumped into the breach left by nation-states and are now manipulating markets on a global scale. But this is, as suggested earlier, an economic aberration.

Thus, three spheres exist where once a theocratic monolith ruled.  And while each of these three spheres of human activity—-which now distinguishes Western Civilization—-requires the development of quite different social capacities, the three-folding of the social organism does not in any way imply utopianism, nor is it a disguised form of an ancient caste system.  It simply acknowledges the reality that we move within qualitatively different spheres of social interaction all the time. The cultural/spiritual field is, of course, more narrowly defined (though its fruits are not). The consciousness of rights and of law and of economic exchange is universal.  And while the health of each determines the health of the whole, it is crucial that these three spheres become increasing differentiated as what is appropriate to one is always a source of infirmity to another. Three qualities, then, must come to characterize each sphere: complete freedom within the realm of the cultural/spiritual life; transparent democratic institutions within the area of rights-awareness; and fraternal associations of producers and consumers determining economic exchange.

“The whole trend of the evolutionary force of modern mankind is in the direction of this three-folding of the social organism. As long as social life could be guided in all its essentials by the instinctive forces at work….there was no urgent tendency towards this definite membering into three functions. Basically, there were always these three, but in a still dim, unconscious social life they worked together as one. Our modern age demands of man that he now place himself consciously into the social organism.”

Rudolf Steiner

“…..{that} religion is a man’s private affair expresses what is a right perception, but in a one-sided way.  In a healthy society, all of {cultural}/spiritual life must, in this sense, be a private affair as far as the State and economic life are concerned.”

Rudolf Steine

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The above musings are not without meaning.  I have not entirely lost the subject—-that is, the relationship of medicine to the law—-but I have attempted, with a few quick strokes, to set the problem within an historical context. The present socio-political climate did not spring ready-made from the mind of God, nor were licensing laws created by some divine fiat.  They are a function of views determined by an historical process stretching back centuries if not a millennium. Too often

legal questions are viewed within too narrow a perspective.  This is especially true when the question has an impact on cultural/spiritual activity. The temporarily expedient compromise is often gained by an abdication of fundamental principles just in those who should be working unabashedly for ideals. And an artist, scientist, teacher, preacher or physician without ideals is “as sounding brass, or a tinkling cymbal.”

The only physician to sign the Declaration of Independence, Benjamin Rush, before he decided to become a physician, had considered becoming a minister. Interestingly, in the late 1700’s, a person was required to have a license to be a minister but no license was required to be a physician. What is significant in this—license or not for minister or physician—-is that this has been reversed only within the last 200 years!

The history of the West has seen the gradual and often bloody uncoupling of all cultural/spiritual activity from a religion (Roman Catholicism) that had worked in close if not virtual union with the State. In art, this began with the Renaissance (Michelangelo being animated as much by a burgeoning humanism as by anything else); and in science, Galileo represents one of the first test cases (Giordano Bruno having previously lost his). But for more than a millennium, the Church/State alliance (a fading relic of the old theocracy) felt it had a proprietary interest in the spiritual welfare of its (European) citizenry, and religion was thus prescribed by law. Any deviation was punishable by torture and death. Analogous to the arguments used to justify medical licensing today, it was held that the ordinary citizen was incapable of treading the thorny path to salvation alone without the solicitous if despotic hand of the Church/State.  After all, it was the Church/State that had been appointed by God as the sole arbiter of religious conscience. After centuries of fierce protest, the State has now conceded to the individual the right if not the capacity of independent religious judgement.   Now there is a plurality of paths to the Spirit!

(As a consequence of a liberated religious consciousness born in the history cited above, it is likely that many homeopaths today no longer adhere to Roman Catholicism, nor to any of the religions of Abraham, orthodox or otherwise. This resistance to state-institutionalized religion has had many spin-offs not limited to the individual alone. Two examples, besides the secularization of science mentioned before, are the concepts of the avant-garde in art and of non-sectarian schooling.  And an interesting article, nay book, could be written to show the influence of the Protestant Revolution on the Declaration of Independence and the U S Constitution of the late 1700’s. The Enlightenment may have furnished the language to the latter, but Protestantism lent the spirit.)

Now there will be those who will object to linking religion and medicine in the same rubric (although, originally, they were linked).  But it is an exact analogy: through licensing laws, allopathic medicine has now become what Roman Catholicism was not so very long ago—-that the state-mandated medicine of today has replaced the state-mandated religion of yesterday.  It could be argued that they are not comparable institutions. That one is a matter of faith and the other of knowledge. That one is a belief in the spiritual-beyond, while the other deals with practical issues of life and death in the here and now.  But this is to beg the issue.  To a 12th, 13th or 14th Century cleric, real life pertained to the soul, not to the body, and death was but a gateway to eternal life. Quite serious concerns indeed! We need not scoff at such a conception—-the future will likely do as much to what we presently deem important. “Just imagine, in the 21st Century, there were laws pertaining to every square inch of human corporeality!  Compared with one’s immortal soul and to the prospect of eternal damnation, why would anyone have thought it important to the State what therapy one chose to treat physical illnesses?” This witless irony of history highlights with a kind of poignancy the dualism of materialistic thought: while in the past it was one’s immortal soul that was circumscribed by law, today it is merely that which is most ephemeral, the physical body!

Just as it was true for a State-mandated religion, the present unholy conjunction of medicine with the State is now a thoroughly outdated construct. It is not in keeping with the historical demands of humanity. In all matters of individual conscience, the State can have no legitimate interest. Medical licensing laws are a cultural/spiritual anachronism.

Today, of course, medicine is still thoroughly latched to the State. In the United States, the actual regulation of medicine is left to the individual states to decide, and in every state, licensure is a fait accompli.  But this was not always so. And, as suggested earlier, has been reversed before.

Early in the 19th Century, licensure developed in tandem to the establishment of state medical societies. By 1841, however, a general anti-monopolistic movement, fired by the Jacksonian Democrats, swept through the country and, by 1849, all medical licensing laws, in every state but one, had been repealed. The main argument for deregulation was constitutional: whether the state legislature had the right to give to any single profession a monopoly on medical care. A healthy instinct for rights was in evidence here.

Unfortunately, there was a regressive backlash and by the end of the 19th Century there was a return to licensure. This time, three separate licensing boards were established: allopathic, homeopathic and eclectic.  Ironically, these newer restrictive statues were enacted only after the allopaths and the homeopaths, always bitter enemies before, had suddenly closed ranks and together petitioned the state legislators to solidify their positions, by way of licensing laws, against the up-start chiropractors, osteopaths and Christian Scientists. Once again, power and privilege makes for strange bedfellows! By 1917, during the administration of Woodrow Wilson, further erosions to democratic, egalitarian principles occurred, leading to the statewide establishment of only one license: the allopathic. The homeopaths had been finally outmaneuvered.

History is not always a straight line forward.  Sometimes one step ahead is followed by two steps back. Sometimes what is achieved once becomes unraveled later.  Sometimes what history shows is a stumbling towards clarity in issues that have only just surfaced in the social life of humanity.

At least three things can be said about the history of medical licensing laws cited above:

1)That it has invariable been the professions themselves that have agitated for these laws and never the public, the so-called medical consumer. This makes sense as the individual consumer lacks the politically concentrated lobbying power of the professional organization.  Once enacted, though, the public is then made to believe that it was all done on their behalf, for their own good—-that is, licensing laws were passed to protect the unwary from the unscrupulous and the incompetent. Besides the outright hypocrisy to this ploy—-that it is always the profession itself that seeks, through licensing, protection from outside competition—-a barely concealed social cynicism lies at the core of it. This is the belief that the ordinary citizen is too credulous, too ill informed and too distracted to make intelligent medical choices on their own. It is time to overcome this prejudice for the simple reason that government cannot, nor should not, even attempt to protect anyone from an unreasonable judgement. This is a relic of the (theocratic) past. No government today contains any constitutional mandate to protect its citizens from themselves. To believe otherwise is to invalidate the very premise of modern government. (Furthermore, consumers are already sufficiently protected by way of the judiciary in every case that can be named, medical or otherwise. There are whole libraries devoted to fraud and torte law.)

2) That, in spite of the self-serving, paternalistic arguments for licensure given by the (allopathic) profession, and the casting of government into the role of pater familias, licensing laws always have the tendency to recoil back on the perpetrators themselves.  That is, by prohibiting what they would seem to proffer—-the art and science of healing—-they end up stultifying the mind and imagination of the clinician. No other art or science is similarly burdened. It would be absurd to expect of any other art or science to thrive in an atmosphere of legal restrictions and fixed routines. Yet this is just what is expected of the licensed medical profession. This situation is ironically expressed in allopathic medicine where the licensed prescriber often becomes legally (sic) subservient to the pathologist and pharmacologist for ‘the what’ of disease and ‘the how’ of treatment.  But this would be true of any system latched legally onto the State: medicine then becomes no more than what is required of it by the circuitous route of statutory law; it becomes, in legal parlance, “standard medical practice”. Eventually, this would become as true for homeopathy as it is presently true for allopathic medicine. Licensing laws turn medical sapiens into medical fungens.

3) That it is of the nature of law to first mandate standards of homogeneity and then to police for any transgressors of this established order. Allopathic medicine has used the law in this way to suppress the practice of homeopathy for generations.  At the pole of power and privilege, it has prevailed against all competition. But one could ask: What if this history had gone the other way?  What if the tides of fortune had flowed differently and homeopathy had become the dominant sect?  What if homeopathy had be given the legal tools to enforce its own will, having then the opportunity to suppress all those it perceived as dissenters of similitude? One should not be naïve about this: homeopathic medicine would have been as ruthlessly intolerant to its competition, politically and economically, as any group latched legally onto the State. To think otherwise is disingenuous. There is an old adage (attributed to Lord Acton), as true in medicine as anywhere else, about the nature of power and corruption.

A license is defined in law as “a personal privilege to be exercised under restrictions which exist at the time license is granted and such as may thereafter by reasonably imposed.” The State has claimed in subsequent case law, that nobody has a “vested right” to practice medicine. It is a privilege granted, on provisional bases, by the State. The word, privilege, means ‘private law’—-that is, a law that applies to one or some but not to all.  The dictionary gives the further definition as “an advantage possessed by one person alone or by a minority [over others].” But this is tantamount to the establishment of a professional aristocracy.  A doctor endorsed by government exhibits all the markings of an advantaged class. One would have thought the French Revolution had done away with that! Medical licensing as a legalized privilege is contrary to the egalitarian nature of modern Western society; it is antithetical to democracy itself. How can a State, which grants privileges to selected individuals or groups, still claim to represent equity interests? Equal protection? Even-handed justice? Or even the will of the whole?

And how are all these medical statutes defended in the first place? By the now infamous “general welfare” clause of the U.S. Constitution! But, apart from prolonged epidemics, sanitation concerns and the environment, in what sense ever is the treatment of human illness to be considered part of the public welfare? Only by taking the population of a given area economically! That is, by thinking of people as so much “human resource” that contributes doubly to keeping the wheels of commerce spinning. (This is an example of judgments appropriate to economic matters inserting themselves into the realms of both culture and rights.) Certainly everyone wishes those who are ill a speedy recovery, but this wish cannot become public policy for the simple reason that illness, like death, sets us apart from others—-entirely privatizes us—-makes of us what we were not before.  With every illness, big or small, we begin to step out of secular, public space and into—-for lack of a better word—-a sacred space.

Not only is a legalized privilege at odds with democratic ideals, it is at odds with the real unfoldment of compassion and trust. Privilege always divides and isolates. If there is a meeting of hearts and minds, it is in spite of, never because of, the abstract arrangements of law. Perhaps the alienation so often felt in the contemporary clinical situation is not so much the result of a sterile technique alone, but may lie much deeper, like some primal fault in the bedrock of fellow feeling: that which would be made whole is split and splintered by privilege.

Current medical law is described as both prescriptive and proscriptive; it is intended to establish and to prohibit at the same time. But this kind of prophylactic law, as it is called, is a testament to the amount of fear still embedded in society; or, better said, to the amount of fear still injected into society by the politically powerful.  Power always means power over someone or something.  The scepter is never brandished in vain.  A periodic show of force is calculated to deter even the most flagrant recidivist.  The “general welfare” seems to necessitate, from the State’s point of view, the coupling of power with fear.

About the author

Robert Stewart

Robert Stewart RSHom (NA) CCH

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