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Homeopathy and the Legal Question: An Historical Perspective

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.

But medicine should come from an entirely different place in the social organism. Since the Greeks, it has always been identified with eros, or love. Plato and Aristotle both affirmed that the medical relationship was an “iatrification of philia”, or friendship. (Later, this was to be extended into Christian charity.) Love needs the condition of a complete freedom in order to unfold.  Power needs to be continually restrained.  And just as love is corrupted by power, so is freedom constricted by fear. It is only within the autonomous and self-regulated cultural/spiritual sphere that the baneful influence of power and fear can be counteracted by the medical equation of freedom and love. To attempt to heal the sick is not a privilege—-at least not a privilege the State can confer—-it is a responsibility that only the individual can enter into freely, or not at all.

There are those who puff themselves as being practical.

They forswear the theoretical, preferring action to ideation.  But they do this at their peril.  This age, like no other, calls for a conscious participation in social life, and the best part of this participation is cognitive. To do without thinking is to court disaster; to do with insight and knowledge is what is here called conscious participation. No one who respects the times in which we live will ever disparage an historical analysis, for history is how the West came to consciousness in the first place. The two are inextricably linked in thought. And, as I have attempted to chronicle above, albeit axiomatically, this history points inexorably to the elaboration of three separate areas of social interaction. Unless this fundamental characteristic of the modern social organism is fully acknowledged, compromise will be taken for victory, equivocation for truth.

The tripartite social organism has developed quite naturally out of the depths of historical evolution; and, in order to safeguard their separate autonomy, it is impossible to exaggerate the distinguishing features of each of the three spheres. In the cultural/spiritual sphere, for instance, the chief feature is liberal pluralism. In religion, this manifests today as a medley of paths to the Spirit; in art, as a tutti-frutti miscellany of styles, tastes and -isms; and in science, just to name relativity, quantum physics and string theory is to make the same point in terms of knowledge. Everywhere, a wonderful plurality of expression. The terms—-art, science and religion—-refer today to a multiplicity of activity. Sadly, in medicine, liberal pluralism is still not the case—-to heal the sick and disabled is restricted by law to a single modality (allopathy).  Medicine has thus become an unhealthy holdout against the general direction of social evolution. Unlike religion, art and science, medicine is still taken as a singular noun.

The concern of this essay has been the role that government should, or should not, play within the social organism as a whole and in medicine in particular.  I have taken the detour through history in order to both set the stage for the discussion and to illustrate the seriousness of the issues involved.  There is an increasing awareness among the disenfranchised and the public that medicine should finally become a plural noun. This awareness has been identified as the alternative, complementary, integrative and holistic medical movement (terms that only make sense now given the present allopathic medical monopoly). Various strategies have been broached, and some fairly tentative efforts have been made in the direction of the eventual ‘pluralization’ of medicine. Some have been undertaken with at least a tacit understanding of the evolutionary forces at work, while others have been more of a knee-jerk reaction to an unhealthy situation.  A quick survey yields the following:

1) Separate Licensure

It should be clear from the previous discussion that a separate license for any ‘alternative’ therapy—- homeopathic or otherwise—-only increases the web of entanglement between the political/rights sphere (government) and the cultural/spiritual sphere (medicine). If the concept of licensure is inappropriate, unjustified and deleterious in the case of a single license (allopathic), the situation cannot be made any better by adding yet another, and then another. I already made the case that the public is not served by this; nor, paradoxically, is the profession.  Medical licensing laws only serve to distort and impair healthy social relations. A prime example of this is the Byzantine nature of state agencies in general (and the DOE in particular). But adding insult to injury, the halls and chambers of state and federal buildings everywhere are simply crawling with the maneuvers and the outright manipulations of a veritable legion of lobbyists. Surely this cannot be the State’s intention but is only made so by dozens of competing ‘special interests’—-a concept that should have no place in a realm where rights-awareness should advance.

Every profession thinks of itself as the last word in healing. Certainly allopathic medicine believes this and has had this belief encoded into law for almost 100 years. But homeopathy, which began 200 years ago with the work of Samuel Hahnemann, also believes that it has the last word on the subject. That is its vanity. And just as allopathic medicine now claims the legal prerogative to impose its vanity on the public, so homeopathy would wish to do the same. As an exercise in social thinking, though, imagine the following: let’s say that homeopathy was able to somehow convince the State that it had a ‘compelling interest’ to license homeopathy. It would then be in a position—-vis-a-vis competing unlicensed alternatives—-similar to that enjoyed by allopathic medicine today.  Like allopathic medicine, it could lord it over the less legally fortunate. But, to continue the exercise, image that in say 30 or 40 years someone with a genius comparable to Hahnemann’s were to devise an equally significant medical system, neither allopathic nor homeopathic. Their contribution to the healing of humanity would immediately be considered felonious—-outside of state mandates—-and could then be attacked, this time from two sources: from allopathy and from homeopathy. So much for equity!

To repeat but once again: medical licensing laws are at odds with the social evolution of humanity. But perhaps the most egregious assault on this evolution comes not from the licensed allopathic profession. It comes from the licensed naturopathic profession. Given the full spectrum of disease possibilities, the parameters of allopathic medicine are fairly narrow. On the other hand, naturopathic medicine would claim to be nearly all things to all people. A licensed naturopathic practice would preclude at least half-a-dozen other therapies.  So much for pluralism!

2) Legal Umbrellas

The concept of a legal umbrella means that someone practices a non-licensed modality, say homeopathy, under a podiatry license or a psychology license or a chiropractic license. These kinds of practices are problematical, to say the least, as the modality in question (say homeopathy) usually lies far outside the ‘scope of practice’ of the license.  While it probably would not be construed as practicing medicine without a license, which is a criminal offense, I believe the legal consequences would still entail a ‘cease and desist’ order, as well as the likely loss of the license.

A more pervasive use of a legal umbrella occurs when a licensed allopath (MD) practices homeopathy in part or in whole. In addition to also lying outside the ‘scope of practice’ of their allopathic license, this constitutes a kind of institutionalized fraud. The public expects one thing, and is misled and given something else. It’s a double fraud—of the State and of the public. Only in states that have passed CAM legislation can this practice be legally sanctioned. But it still could be considered a public fraud in that the licensed allopathic practitioner may have little or no real training in homeopathy.

There are some situations where a legal umbrella works more ethically and up-front.  In Arizona, for instance, a ‘registered’ homeopath may work with an allopath who has obtained a special license. And nurse practitioners and physician assistants in almost every state enjoy similar privileges.  Leaving aside the second class status of these umbrellas, they completely ignore the social consequences of licensing laws already catalogued above.

3) Civil Disobedience

This refers to the vast majority of those practicing alternative therapies today, including homeopathy.  They exist somehow ‘under the radar’ as it were.  They don’t make claims, nor advertise their services in the mainstream. But this kind of civil disobedience is not what Thoreau had in mind when he wrote his famous essay of the same title—-an essay, by the way, that inspired Gandhi and that went a long way to overthrowing an empire. And, of course, Martin Luther King tapped into the same source in order to lead the civil rights movement of the 50’s and 60’s.  Thoreau had in mind this more visible, active civil disobedience, and not the hidden practices of most unlicensed prescribers today, which is a form of passive disobedience. The only way that civil disobedience could work successfully in this country would be if a sufficiently large and vocal population of licensed prescribers would willingly and quite publicly hand their licenses back to the State (in a deed reminiscent of the German, Martin Luther), and then continued to practice openly anyway. This would have a huge consciousness-raising impact. Again, this could only occur if there were a sufficient number of people in the licensed community who understood the philosophical, historical and moral issues at stake. Within the unlicensed community, the comparable numbers are lacking for such a tactic to have any significant impact. Hence, passive disobedience for now.

4) Health Freedom Movement

This title is a bit of a misnomer. The Health Freedom Movement, which began in Minnesota and now includes California and Rhode Island, is really an effort to de-criminalize the unlicensed practice of alternative therapies. In some cases, it establishes specific exemptions (Minn.), while in others (CA) it is much more carte blanche—-but in no case can it be considered a ‘freedom movement’. For one thing, there is the question of language. None of the unlicensed therapies under health freedom legislation can use the term “medicine”, nor take the designation “physician”, nor even purport to treat and to cure real diseases.  What homeopathy is then left with after its ‘medicine’ and its ‘treatment’ has been stripped away is anyone’s guess. Therapy under health freedom legislation becomes an ambiguous word game, a verbal sleight of hand.

The first act of any tyranny is the appropriation of language. Medical licensing laws, as I have suggested throughout this essay, are a kind of cultural tyranny. There are those within the movement, however, who are OK working within these language restrictions (although one can’t help wondering what Hahnemann would have thought of this), but they do so by admitting an untruthfulness into their practice. Homeopathy IS medicine. And the term, “physician”, which comes from a Greek word, physikos, meaning  nature-knowledge, designates someone who under-stands and works with natural methods. Shall this designation be reserved for the licensed allopath only?

Even the use of the term “freedom” in the title of the legislation is misleading. No less an authority than Abraham Lincoln has claimed that freedom is an all-or-nothing proposition in his famous ‘A Nation Divided’ speech.  You cannot claim that freedom applies to some (in this case, the unlicensed) and not to others (the licensed). Only if freedom is enjoyed equally by all—-allopaths and homeopaths alike—-is the term used accurately. Otherwise, a great liberty with language, tantamount to obfuscation, has been indulged.

No one should be working within the legislative/rights field who is motivated solely by self-interest. But this is exactly what motivated the movement for health freedom: the unlicensed wanted some piece of the pie, so the expedient became the terminus. This is understandable given that the proposition itself contained a contradiction. Is it reasonable to suppose that real freedom can be obtained in a sphere where regulations rule? A legislative effort on behalf of freedom is already a kind of capitulation to the ‘benevolence of the despot’.  At best, it is a capitulation to a power that can have no legitimate interest in the affairs of culture and spirit.

On the other hand, the so-called Health Freedom Movement has, in fact, de-criminalized the practice of alternative therapies in the states mentioned above, and that is no small achievement. Aside from being language-challenged, the unlicensed practitioner in those states can now practice openly, and without fear; and, obviously, this is a double boon in that more health care options are available to the public. For now, the benefits far out-weight the disadvantages. The Health Freedom Movement has introduced an element of chaos into the whole field of health care in this country, and that in itself may offer the hope that a whole new cosmos of health-care possibilities will be available to a wider public in the very near future.

5) Registration

Registration is a legal hybrid. Unlike Health Freedom, it says that the unlicensed must register with the state in order to continue to practice legally, yet no safeguards are provided to the public or to the practitioner; that is, they are denied a board of their peers, having instead only a state agency to answer to. This situation has all the disadvantages of licensure, none of the advantages. As there are no public or professional safeguards, it is unclear why the state would even want to bother to register a plethora of newer therapies in the first place —-except for sheer, dogged meddlesome-ness. As for the practitioners, it is unclear how they would be protected from prosecution. It is assumed that simply by hiding out in the labyrinth of a state bureaucracy, legal anonymity would be assured.

6) Constitutional Amendment

Dr. Benjamin Rush, a signer of the Declaration of Independence, was the first to recommend an amendment to the U. S. Constitution prohibiting the federal government from the establishment of a specific medical discipline. The idea of an amendment pertaining to health care is not at all preposterous. In fact, amendments of far less importance to rights and freedoms have been suggested in every decade since the 18th Century, and sometimes even ratified. Although medicine is regulated at the state level, such an amendment to the U. S. Constitution could send a message to all the states. When the First Amendment was ratified in 1791, there were states that had their own state-sponsored religions. That eventually changed, subsequent to the 14th Amendment, and the freedom of religion was established within each individual state constitution. While the idea—-freedom of medicine—-would work best at the state level, an amendment to the federal constitution protecting health freedom could act as an incentive to the states, similar to the First Amendment in respect to religion. Such an amendment could read: “Congress shall make no law respecting an establishment of medicine, or prohibiting the free exercise thereof”. Obviously, a federal initiative would not in any way preclude the simultaneous adoption of state amendments prohibiting the establishment of medicine, an idea that could grow regionally at first. The only drawback would be the state-by-state effort involved in making it a fully national priority.

Constitutional amendments are qualitatively different from statutory law. First, they supercede statutory law; second, they always deal with substantive constitutional issues; third, they are almost impossible to overturn; and, fourth, they usually describe fundamental rights and liberties while at the same time forbidding any governmental intrusion into these rights and liberties. Obviously, a constitutional amendment, either at the state or federal level, would be the bulls-eye approach to health freedom.

7) Judicial Challenge

States do not have rights. They do not have the right to regulate medicine. The concept of rights pertains to single individuals only. They are called “human rights” precisely for that reason. Furthermore, they are called “inalienable” in that they can never be given by the State; nor can they be taken away by the State. On the other hand, States have powers—-powers that are delegated to the State by the people and that are fully enumerated within their separate constitutions. In the federal constitution of the United States, for instance, all that is not an enumerated power is left to the (52) states to determine, or it is left entirely “to the people”. When the expression, ‘state’s rights’, is used today, it is only to differentiate the powers that states have from those possessed by the federal government. Nothing more can be meant by this expression. Only individual citizens have rights, which they may sometimes relinquish to the State, voluntarily or (tragically) involuntarily.

With few exceptions, case law has proved over and over again that state medical licensing laws have withstood a constitutional challenge to their legitimacy in federal district courts. (One very notable exception, already mentioned, was the huge wave of anti-monopolistic sentiment that swept through this country in the 1840’s.) Federal courts have consistently capitulated to what they call the ‘sovereignty of the state’. Regardless of the Ninth and Tenth Amendments, and regardless of the clear violation of due process and equal protection, courts have voted in favor of the state’s ‘right’ to regulate medicine, even though this term, ‘state’s rights’, is a counterfeit of the concept of human rights.

Because of this history, some people have taken a jaundiced view of any attempt to challenge once again state medical licensing laws at the level of a federal court (or even within the state legislature itself). They would despair of applying the direct approach. I am not very familiar with the previous attempts to overturn medical licensure, nor do I know how the arguments were typically framed. I do know that times change; that what was unripe once is not always so; and that today there are serious concerns being voiced inside and outside the medical establishment—-not the least of which are the escalating costs. And it is not hard to see the connection between the inflationary nature of medical care in this country and the monopoly of a single license. That case could easily be made. Pundits, taking advantage of the American proclivity to see no further than the dollar sign, usually point to funding issues as to a kind of sacred cow. But how medicine is funded is subsidiary to who provides the care in the first place. Therefore, I would couch the argument in more constitutional terms, trusting that, by now, the concepts of rights and freedoms have taken firmer hold of the American psyche. In this case, it is the right of the public to seek the care of their choice, and the subsequent freedom of the practitioner to meet those who are ill openly and honestly.

8) Certification

While I have been making the case, both conceptually and historically, for the de-regulation of medicine—-similar to what has already occurred in art, science and religion—-I acknowledge that those who are in need of medical care want and deserve to have full confidence in the treatment of their choice. Under the present licensure system, however, not only are they not given that choice, they are not really guaranteed that confidence. Witness the rash of malpractice litigation! Regardless of licensure, courts all-too-often end up determining competency as if by default. Just as the State is not in a position to judge art, science or religion, the State is likewise not in a position to judge, or to secure the merits of medicine, especially in a modern, pluralistic society. Therefore, simultaneous to de-regulation would be the self-regulation of the various professions of medicine from within themselves. Instead of the present licensure system, competence and expertise would be guaranteed by way of professional certification. Thus, a certified allopath, a certified homeopath, a certified naturopath, et cetera. Who better to qualify a multiplicity of practitioners then the individual professions themselves?

Board certification is not a foreign concept. Over and above licensure, the public has long accepted certification as an affirmation of confidence. Just as art, science and religion take care of their own without the burden of licensing laws, so would medicine through professional certification. (That organized religions do not always appear to certify their own—-witness a history of embezzlement and sexual abuse—-only proves an earlier point. That is, professions can only certify themselves and nothing else, but fraud and tort laws are there to protect the public from abuses lying outside the conduct pertaining to the specific professions.) If, on the other hand, John Q. Public wants to see an uncertified practitioner, that would be entirely up to him. Neither the State, nor the certifying professions, should have any interest in what Mr. Public decides to do for himself by way of health care. States are not formed to protect citizens from themselves. States, at least in the West, have been given absolutely no custodial function except as guardians of the “self-evident” and “inalienable rights” of “the People”. These include, among others, the right to sometimes make unwise, sometimes even dangerous decisions.

The difference between certification and licensure is crucial. The one is the free unfolding of mutual understanding, while the other is a political/legal arrangement. The former accurately affirms a level of competency, while the later, by restricting the whole, encourages dishonesty. Within the self-governing cultural/spiritual life (now including medicine), real relations may develop which respect human destiny issues, and that allow for the affirmation and maturation of individual conscience. Non-governmental certification stays within its proper sphere, while licensure is an unhealthy abdication of culture and conscience to the State. It is ironic that the word ‘license’ has this dual meaning (from the Latin) both of permission and of liberty. What kind of liberty is it, then, that must be made compulsory by law?

9) Active Resistance:

Let me be perfectly clear: I am not suggesting that active resistance, armed or otherwise, is a viable alternative to the present situation. I am thinking here of those who, for religious or philosophical reasons, have consciously taken a stand against some aspects of State-mandated medicine. They may be opposed to the transfusion of blood, or to the compulsory vaccination of children, or to the genetic manipulation of life, or to any number of other things. There are other, safer strategies in dealing with these issues (cataloged above), but I don’t think this approach can be totally ignored in any survey of the social/legal question. I am simply bringing this up so as to highlight the gravity of the problem: when faced with a situation that one finds intolerable to conscience, what is the best response?

One of the great fallacies of contemporary science is the connecting of all soul activity entirely to the nervous system. Certainly sensing and ideation are quite understandably connected to the nerve/sense system, but feelings and willing are not. As the nerve/sense system is the bearer of thinking, so the rhythmic/circulatory system forms the bodily basis for the life of feelings. One may articulate feelings cognitively, but their actual life is bound up with the rhythms established by the heart and lungs.  And the will, as the source of movement, is properly ascribed to the metabolic/limb system. Every time we will to do something, some activity in the world, and it is not just a thought, metabolic activity is accelerated. Not so with thinking and feeling. Or, at least, not to the same degree.

Human physical life—-as the bearer of thinking, feeling and willing—-is organized into nerve/sense system, rhythmic system and metabolic/limb system. Health is the harmonious working-together of these three quite different functions within the body. Disease, on the other hand, is the loss of a cohesive independence of these systems, and where what was appropriate to one becomes the source of infirmity in another.  Thus, the whole person suffers. Even before the actual clinical diagnosis can be made, illness must be viewed as the usurping of the whole by a part.

Today, human beings want to see mirrored in their social institutions a picture of their own tri-fold nature.  They no longer want the monolithic pictures of yesterday but desire something that is more in keeping with their present needs. The tri-fold social organism is such a picture. It is what has emerged from out of the darkness of the historical evolution of the last two to three hundred years.

That the human physical body is capable of being disordered functionally is indisputable. That the social organism—-that is, human communal life in its entirety—-can be likewise disordered by activities appropriate to one area usurping another, is a fact not sufficiently recognized today.  And just as there is no centralization in the individual organism—-where each of the psychophysical functions contributes equally to the whole—-so, too, in a healthy social organism, three quite distinct activities must be similarly organized. The crucial difference, though, is that in the tri-fold social organism, these separate members must be consciously elaborated.

The modern economic sphere, superficially called “capitalistic”, has gone a long way in propitiating the physical needs of a vast majority of people.  That there are still many without adequate food, shelter and clothing is deplorable, but the cause(s) for this usually lies outside the economy itself.  Admittedly, there are those who use their favored position within the economic circuit to their own advantage, but this is an unhealthy distortion of the economic sphere per se.  The raison d’etre of the economic sphere is the timely meeting of the physical needs of people, and it is a sad fact that it has yet to fully come into its own, just as it has yet to fully eliminate the extraneous—the profiteers—from its compass.

For the most part, the cultural/spiritual sphere has attained a relative autonomy within the social organism.  A glaring exception, of course, is medicine. Where freedom is the sine qua non of all cultural/spiritual activity, what rules in medicine is anything but freedom.  In a threefold sense, the archetypal definition of a medical licensing law would be a cultural abuse of law for economic gain.

The political/rights sphere, the middle sphere between cultural activity and the economy, is analogous to the rhythmical system in the human organism. It is an exact analog to the heart, which is the bearer of the life of feelings. In this case, it is the feelings stirred by a sensitivity to equity issues. This sensitivity, this rights- consciousness, is like a new bud on the tree of human social life, barely two to three hundred years old, and barely dealing yet with all the issues of race and gender!

Rights-awareness, as I have maintained throughout, is at the heart of the social organism. But this heart is being continually corrupted today by forces raying into it from two directions, from the economy and from culture, each incursion seeking to gain legal advantages over others. And just as heart disease is the number one cause of death in this country, so the heart of the social organism is threatened by illegitimate influences that have trespassed their own proper sphere. Rights-consciousness is being sacrificed when the economy and culture are allowed to intrude into this middle sphere. Similar to bodily life, this is the threefold definition of a disordered social life: the usurping of one social function by another. In medicine, this is called “the license”. Those who would want to appropriate the law but once again (this time, for homeopathy) would do well to consider the long-term social consequences. And to those who would hold that the status quo is implacable—-that we are forced to work within the present (decadent) system—-again, consider well: the entire cultural/spiritual life of humanity has, by now, become thoroughly ‘sclerotized’ by this very status quo.

Cultural/spiritualßàrights-consciousnessßàthe economy

(If, in all of the above, it appears that the political/rights sphere is considerably reduced in size in the threefold social organism, it is only because we are so used to government being so terribly entangled in activities that are of no real concern to rights-consciousness. But there are many areas where it could do more. Besides removing land and labor from the economic circuit mentioned before, the rights sphere is charged with the printing of money. And what the circulation of blood is to the physical body, so money is to the social body. The rights sphere should be there to prevent the congestion and hemorrhaging of money in any one area. One way to facilitate this would be by printing money that would reflect its actual tri-fold use—-as purchase, loan and gift. Rather than the arbitrary fluctuations of inflation and deflation that we experience today, money could be consciously made to grow ‘younger’ or ‘older’ depending on which area of the social organism it was being used in. Art, science, religion, education and medicine cannot really be ‘purchased’, nor even ‘consumed’ in an economic sense. Technically speaking, all money that flows to the cultural/spiritual sphere goes there as gift, and it should be printed to reflect this quality. It is interesting to note that, unlike purchase money and loan money, gift money actually gives the greatest ‘return’ on its investment.)

*                  *                   *

Samuel Hahnemann lived just at the close of a wonderful chapter in the cultural/spiritual life of humanity—-German Idealism. Leaving aside all the wonderful, almost incomparable music that was composed at that time, cultural life had reached a certain apotheosis. Just to name Goethe, Schiller, Schelling, Hegel, Lessing, Fichte, Herder, Heine, Novalis and von Humboldt is to begin to get a sense for what was stirring in Central Europe in the 17th, 18th and the beginning of the 19th Centuries. Human beings had begun to grasp the Spirit in pure ideas, and the cup of art and science overflowed with practical insights into the nature of man and the world. To exaggerate in order to make the point: one could call Goethe (with his ‘primal phenomenon’) the Hahnemann of natural science, just as one could call Hahnemann the Goethe of medicine. And what Hegel’s The Phenomenology of the Spirit did for history, and von Humboldt’s Limits of State Action did for political science, Hahnemann’s Organon of the Rational Healing Art did for medicine, Everywhere, an exuberance of spiritual striving! One would have thought a Golden Age had arrived…

Alas! Just one hundred years later—-fascism and the Third Reich!

And then, later, further ignominy: an Iron Curtain was to run through the center of it!

*                  *                   *

Over two centuries ago, in a colonial backwater, a clarion call for freedom rang out in the eloquent prose of the Declaration of Independence and in the first ten amendments to the US Constitution, the Bill of Rights. Born in self-righteous indignation, freedom became the demand of a people seeking their direction, not from outside, but from within themselves. The United States of America for most of 200 years has been a beacon of democracy abroad and a haven of liberty at home. (For the most part; there are still troubling exceptions.)

Having risen to the surface from out of the depths of the social history of mankind, freedom has now become the watchword for all human cultural-striving. And that is just the point: a prescient intuition tells us that freedom is intimately connected to what is most human in us—-that our very humanity depends upon it—-and that to settle for anything less is to revert back to the nursery of the theocratic past. This is why it is sought so vigorously and defended so jealously for without it we feel that we are not yet fully human adults, capable of making independent judgements about our experiences in the world. And just as we expect this for ourselves, we should grant it to others. If the two documents just mentioned above are to be taken seriously, then the concepts of rights and of freedom should be esteemed and valued above the law; more, they should be held above the State itself. They are connected today to what may be called  ‘The Universal Human’.

Every age is an age of transition, and today is no exception. In every age, something momentous always hangs in the balance, for what was once gained may easily be lost, and what was once considered precious may slip through the fingers like sand. The bell of liberty rings today at the edge of an abyss. May hands and heart and head give ear to it!

@ Robert Stewart
Point Lookout, New York
2004