Book Reviews
The Insanity Defense. By Abraham S. Goldstein. New Haven, Connecticut
and London, England: Yale University Press. 1967. Pp. vii, 289. $6.00 (hard-
bound); $1.95 (paper).
This book was suggested, the author advises, by Chief Judge
David L. Bazelon of the District of Columbia Circuit. Professor
Goldstein acknowledges in his preface indebtedness to the learned
judge, undoubtedly the most famous of the current judicial craftsmen
of law and practice respecting the “mentally ill”. The book professes
to owe other debts also, both financial and intellectual: support
by the Foundations’ Fund for Research in Psychiatry; a grant from
the National Institute of Mental Health; a Guggenheim Fellowship;
the “intellectual support” of the faculty and students at Yale Law
School; and the efforts of several research assistants. The product
is a valuable, well-researched, perceptive and analytical study of
the insanity defense. The more one studies it, the more impressed
one becomes with the depth and breadth of thought and analysis that
have gone into it.
A close study of the book persuades the reader that the author
is one of our most knowledgeable students in the working of the
current bureaucratized, “therapeutic” system of criminal law. The
present situation is known to many, but few scholars other than
Professors Szasz, 1 Arens 2 and Blumberg 3 have dared to bring the
is
more provoking questions
nevertheless very judicious in tone and, under the circumstances,
extraordinarily circumspect in the judgments made. In fact, the
book enjoys these qualities in such full measure that it really is
rather difficult to review.
into public discussion. The book
Anyone who has read Professor Graham Parker’s A Field Guide
to Book Reviewing,4 knows how the job is to be done, 5 or at least
has fair warning of eleven common approaches which should be
avoided. A typical reviewer, “the nit-picker extraordinary,” “wants
everyone to know that he has read the book but he certainly does
1Thomas S. Szasz, Law, Liberty, and Psychiatry, (New York, 1963);
Psychiatric Justice, (New York, 1965).
2Arens, Due Process and the Rights of the Mentally Ill, (1964), 13 Cath.
U. L. Rev. 1.
3 A. Blumberg, Criminal Justice, (Chicago, 1967).
4 (1967), 20 J. Leg. Ed. 169.
McGILL LAW JOURNAL
[Vol. 14
not intend to stick his neck out and make any value judgments on
the contents.”6 The Reader’s Digest variety of review, on the other
hand, is of value only to the reader who never reads books. With
Professor Parker’s map as our guide, it should now be possible to
avoid such worthless methods.
is about the
justly commences
The Goldstein book
the discussion with
insanity defense. Though
discussion of the question of criminal responsibility has long been
dominated by arguments concerning the respective merits of the
M’Naghten, and Durham” rules and various refinements of each,
Professor Goldstein
the
assertion that “the insanity defense… arises too rarely to deserve
a place at the center of the stage.”9 In the future it is highly likely
that the “more elastic the concept of mental illness becomes and the
greater the faith of the public in the medical approach to deviant
behavior,”‘.0 just so much less frequently will the defense be asserted
by persons accused of crime. Nevertheless, the relationship between
psychiatry and law is of ever increasing importance in the adminis-
tration of criminal justice. One reason is precisely the increasing
“faith of the public” in psychiatry. Apart from the rare voluntary
assertion of the insanity defense, the accused also confronts the
“helping” professions when his competence to stand trial is brought
into question,” when he pleads guilty (as happens in about 90 per
cent of cases) and the question is raised by the court, when the
defense is asserted by the tribunal over defendant’s objection, and
and significant 12 – parts
in other situations. The most interesting –
5 For an example of how a book review perhaps ought to be written, see
Bishop, Review of Packard, The Naked Society, (1964), 74 Yale L. J. 193.
6Parker, loc. cit., at p. 1173.
7 M’Naghten’s Case, (1843), 10 Cl. & F. 200, 8 E. R. 7,18.
SDurham v. United States, (1954), 214 F. 2d 862 (D.C. Cir.).
9P. 23. See also pp. 167, 188. “[T]he most conspicuous fact about [the
defense of] insanity is its last-ditch quality.” P. 143.
‘Op. 23.
“”Though
its function [a finding of incompetence
to
remove from the trial process persons who cannot understand the nature of
the proceedings against them until such time as their competency is restored
[“that time may never come”], it is in practical effect a civil commitment.”
P. 179. This is obvious, but it is pointed out only very rarely.
to stand trial] is
12While the author concludes that the “new rules which appeared on the
scene in the 1950’s represented a flight from law,” he also suggests that it
“is unreasonable to assume that any legal standard, operating within the
existing framework of ‘blame’ and a jury system, can affect the situation
[rate of acquittals by reason of insanity] very much.” P. 95. The great dispute
about the Durham, M’Naghten and other rules is therefore much ado about
almost nothing. This reviewer agrees with both assessments.
No. 4]
BOOK REVIEWS
of the book, therefore, are not those dealing with the technicalities
of the rules concerning the insanity defense as such, although they
are handled brilliantly. 13 Turning immediately to more important
and suggestive matter, let us examine Professor Goldstein’s discussion
of “release” and related questions such as the justifiability of
indefinite, often life-long, detention of “guiltless”, but “irresponsible”,
persons.
I
Over a century ago, in 1843, Daniel M’Naghten shot and killed
Sir Robert Peel’s secretary. Six weeks later M’Naghten was tried
before Lord Chief Justice Tindal, assisted by Justices Williams
and Coleridge, with Albert, the Prince Consort, present as observer.
No fewer than nine physicians and surgeons were called, seven by
the defense and two by the court, and all agreed that M’Naghten
was insane. “There was no contradictory medical testimony in the
manner of the ‘battle of experts’ which has plagued most subsequent
insanity trials.” Neither was the Solicitor General particularly
“overzealous”. The Lord Chief Justice came very close to directing
the jury to return a verdict of not guilty, on the ground of insanity;
such a verdict was returned forthwith and M’Naghten’s body was
remitted to appropriate authority, “to be confined during Her
Majesty’s Pleasure.”‘ 14 By directing this verdict, the court doubtless
saved M’Naghten from the gallows.
Professor Goldstein’s book explores the rule laid down in that
ancient decision, the demands for “reform” of the rule, and con-
temporary implications. What Professor Goldstein does not tell
us is, what actually happened to M’Naghten? The fact is, he was
involuntarily hospitalized and incarcerated for the remaining twenty-
two years of his life, in Bethlehem Hospital from 1843 until 1864,
then in the newly-opened Broadmoor Institution for the Criminally
Insane. What Professor Goldstein does tell us, and what is usually
glossed over or ignored, is that it is still accepted practice to impose
involuntary “hospitalization”, often for life, upon persons acquitted
on the ground of insanity.” The author observes:
13 Pp. 45-96.
14R. v. M’Naughton, (14),
4 How. St. Tr. N.S. 847, at pp. 924-26; A.
Morris, Criminal Insanity, (1968), 43 Wash. L. Rev. 583, at p. 593; Diamond,
Isaac Ray and the Trial of Daniel M’Naghten, (1956), 112 Am. J. Psychiat.
651, at pp. 654, 655, 656; Szasz, Book Review, National Review, March 12,
1968, p. 247.
15 See, for example, p. 146.
McGILL LAW JOURNAL
[Vol. 14
The power to detain indefinitely is unquestionably the most important
issue associated with the insanity defense. Yet it has received remarkably
little consideration. 16
The prevailing psychiatric and judicial opinion appears to be that
the detention is “therapeutic” (if “punitive” it would of course have
to be of delimited term). Since punishment is not involved, but only
a rehabilitative effort by society, there is supposedly no need to
fear excesses or abuses from a medical disposition.
Moreover, the very fact of indeterminacy is regarded as an incentive to
patients to improve more quickly so that they can be released sooner.17
There are several practical and theoretical defects in the prevailing
theory. First of all, the desired situation avowedly is “that the
patient will receive good medical treatment… followed up with
continuing solicitude for his freedom, and.., release… as soon as
his welfare and that of the community allow.” 18 The fact is, however,
that such a patient generally does not receive good medical treat-
ment. 19 Thus, there are “cases in which a patient is placed in a
ward housing 1,000 patients and which provides two psychiatrists
for their care and treatment.”‘ 20 There is, moreover, all too frequently
little if any solicitude for the inmate’s freedom and the securing
of a release in the face of opposition on the part of the hospital
administration is akin to the labors of a Tantalus or Sisyphus.21 Was
not this situation predictable? Thoughtful students of human nature
would expect that the designation of compulsory restrictions on
liberty under the name of “treatment” would in actual practice
16 p. 154.
17Pp. 154-55. Compare Boslow and Kohlmeyer, The Maryland Defective
Delinquent Law: An Eight Year Follow-Up, (1963), 120 Am. J. Psychiat.
118, at p. 121:
many patients… are unable to acknowledge any disturbance or need for
change in their behavior. The idea of an indeterminate sentence quickly
jolts some of these out of their complacency, and they become amenable
for treatment. Thus it is a powerful motivating force for change.
‘sReport of the Association of the Bar of the City of New York, Mental
Illness and Due Process, (Ithaca, N.Y., 1962), p. 243.
19 See, e.g., Cullen v. Grove Press, Irc., (1967), 276 F. Supp. 727 (S.D.N.Y.).
20Arens, The Durham Rule in Action, (1967), 1 Law and Soc. Rev. 41, at
p. 55. See also Usdin, in The Clinical Evaluation of the Dangerousness of the
Mentally Ill, ed. by J. Rappeport,
(Springfield, Ill., 1967), p. 63; Solomon,
The American Psychiatric Association in Relation to American Psychiatry,
(1-958), 115 Am. J. Psychiat. 1, at p. 7; N. Ridenour, Mental Health in the
United States, (Cambridge, Mass., 1961), p. 134.
2 1 See, e.g., Beaver, The “Mentally Ill” and the Law: Sisyphus and Zeus,
[1968] Utah L. Rev. 1.
No. 4]
BOOK REVIEWS
increase rather than decrease the risks of unjust punishments and
worse. The evidence accumulates that the much lauded “treatment”
has all too frequently turned out to be nothing but warehousing
at best. Thus, in 1966, the Court of Appeals for the District of
Columbia declared
in St.
Elizabeths Hospital by virtue of an acquittal on the ground of
insanity, have a “right to treatment.122 But in Professor Arens’
inimitable phrase:
that persons automatically
immured
The decision… provides no indication as to whether St. Elizabeths physicians
will succeed in establishing the adequacy of their treatment facilities by
testifying that what they administer
is “environmental” or “milieu”
therapy, i.e.,… that the privilege of breathing in the air of St. Elizabeths
Hospital is treatment enough. 23
An idea as to the answer to be given this question appears in a later
case, where the same court observes:
Under some circumstances custodial care, standing alone, is a form of
therapy for some conditions; the terms… such as “environmental therapy”
or “milieu therapy” are simply psychiatric descriptions of a form of
treatment consisting of custody in an appropriate… atmosphere from which
departure is not permitted. 24
In another recent case in the District, 25 one Alexander was civilly
committed because he had a “history of antisocial behavior,” although
“the psychiatrists … were reluctant [!] to label [his]
illness a
psychosis, or in fact to attempt to fit it specifically into any…
[class] … of mental illness recognized by the American Psychiatric
Association… “,26 The psychiatric “reluctance” should not, however,
upset the court because:
[T]reatment will be available.., at St. Elizabeths. The staff psychiatrist
from St. Elizabeths testified that the hospital offered custodial care and
a controlled environment, and that this would include “treatment, guidance,
and therapy.”27
All of this language-corrupting rationalization ignores the fact,
which should be obvious to any lay citizen, and which apparently
enjoys the support of some responsible psychiatric opinion, including
perhaps most non-institutional psychiatrists, that “the treatment of
many psychiatric disorders can best be accomplished outside of a
22 Rouse v. Cameron, (1966), 373 F. 2d 451 (D.C. Cir.); see also same case,
(1967), 387 F. 2d 241 (D.C.Cir.).
2 3 Arens, The Durham Rule in Action, loc. cit., at p. 57, n. 38.
24 Collins v. Cameron, (1967), 377 F. 2d 945, at p. 947 (D.C. Cir.).
25 1n re Alexander, (1967), 372 F. 2d 925 (D.C. Circ.).
26 Ibid., at p. 927.
27 Ibid., at p. 928.
McGILL LAW JOURNAL
[Vol. 14
hospital,” while release should in any case be “as rapid as possible
to prevent the debilitating effects of institutionalization.” 28
The best solution would, of course, be to “cure” the inmate and
release him. Apparently, however, society produces neither the wit
nor the will to accomplish his rehabilitation and release. The talk
about “therapeutics” would seem to boil down to “aspirin” -a
soporific for the modern, gentle, “liberal” men and women of the
Twentieth Century; they want to gratify their altruistic impulses
by sparing life and avoiding condemnation, but they do not want
their consciences assailed by knowledge of what transpires behind
institutions. In the case of Daniel
the walls of the “helping”
M’Naghten, it is arguable –
at least subjectively –
that a more
generous “treatment” of the assassin would have been to hang him.2
1
II
Professor Goldstein makes a brilliant analysis 30 of the difficulty
posed when a person is acquitted on the ground of insanity and is
detained indefinitely – often far in excess of the term of punishment
which would have ensued if he had been convicted and sentenced –
even though he cannot be “treated” at all by virtue of current
limitations of the psychiatric art and/or deficiencies in societal
resources. 31 Such an untreatable inmate will be unable to satisfy
2
8 Letter, Dr. R. Prince to Prof. R. Arens, quoted in Arens, The Durham
Rule in Action, loc. cit., at p. 57, n. 38. In accord is the testimony of Dr. Bunge,
referred to in Rouse V. Cameron, (1967), 387 F. 2d 241, at p. 246 (D.C. Cir.)
(dissenting opinion of Danaher, J.): “Dr. Bunge felt further hospitalization
would ‘stifle his [Rouse’s] future development.”‘ See ‘also Rappeport, Lassen and
Gruenwald, Evaluation of Hospital Patients Who Had Sanity Hearings, in
Rappeport, op. cit., 81, at p. 91:
Finally, there is the tendency of the hospital to look upon a poor adjustment
as an indicator of a poor extra-hospital adjustment. That this may not
be so is exemplified by those patients who eloped after being remanded.
For them it might have been that the hospital environment was, so to
speak, ego dystonic while the community at large, or at least avoidance
of being hospitalized, was “integrating”.
20 But see Albert Camus’ magnificent essay, Reflections on the Guillotine,
in Resistance, Rebellion, and Death, (New York, 1960), p. 131.
30 pp. 154 et seq.
31 Good recent examples include Rouse V. Cameron, (1967), 387 F. 2d 241
(D.C. Cir.); Overholser v. Lynch, (1961), 288 F. 2d 388 (D.C. Cir.), rev’d sub
nomine United States v. Lynch, (1962), 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed. 2d
211, discussed in Arens, Due Process and the Rights of the Mentally Ill, loc. cit.,
and in T. Szasz, Psychiatric Justice, ch. 7. Cf. In re Gault, (1967), 387 U.S.
1, at p. 29 (Arizona: six years as juvenile vs. two months if adult); Brisco
V. United States, (1965), 246 F. Supp. 818
(1966), 368
F. 2d 214 (3d Cir.) (six year commitnment under Youth Correction Act when
(D. Del.), aff’d
No. 4]
BOOK REVIEWS
any objective criterion for release. If sanity is the key, it will be
impossible (Goldstein says “difficult”) to say he has been restored.
The author does not spell out why, but it is obvious. A jury or judge
has found him insane, a conclusive adjudication has ensued and
his condition has not improved –
it has almost certainly worsened.
Such an inmate therefore cannot reasonably be pronounced sane
by administrative fiat. If danger is the key, the same danger present
when the jury (or judge) considered the matter will usually continue
in the case of the “untreatable” patient. If the insanity defense is
expanded to include psychopaths, alcoholics and addicts, although
they may be quite capable of functioning in society, they may also
be less curable than other categories of inmates. The conclusion of
Professor Goldstein seems inescapable:
Broadening the insanity defense may… not be the humane gesture many
reformers have in mind. Instead, it may become a device for luring offenders
to forego the relative security of a sentence of limited duration for a
potentially unlimited one. 32
In fact, it appeared for a time that it was not a question of “luring”,
but of coercing, when the insanity defense was allowed to be inter-
posed over the violent objection of defendants desiring to plead
guilty to minor misdemeanor charges. 33
Detention beyond the term fixed in the Criminal Code, which
presumably embodies society’s political and legislative judgment as
to the requirements of prevailing notions, be they vengeance, deter-
rence, rehabilitation, or a mixture of these, “can be justified only
if such detention will serve the patient’s welfare or that of society.” 34
Some scholars, including this reviewer, would question whether
either basis justifies such continued detention. When the penal term
expires, the basis for interference by the state should end. If the
individual remains an imminent threat to the lives of others, or if
he otherwise satisfies the ridiculously broad and amorphous standards
maximum penalty for substantive offense six months); New York v. Follette,
(Weinfeld, J.) (five year detention under
(1966), 254 F. Supp. 887 (S.D.N.Y.)
N.Y. Correction Law when maximum term 2% years under N.Y. Penal Law).
32 p. 155.
33 See Overholser v. Lynch, (1961), 288 F. 2d 388
(D.C. Cir.). But such
“coercion” is not apparently permitted today in the District of Columbia, under
the interpretation of United States v. Lynch, (1962), 369 U.S. 705, 82 S.Ct.
1063, 8 L.Ed. 2d 211, just adopted in advance sheets received by this reviewer
March 11, 1968: Cameron V. Mullen, (1967), 387 F. 2d 193 (D.C. Cir.); Rouse
v. Cameron, (1967), 387 F. 2d 241 (D.C. Cir.). Professor Goldstein reports
at p. 109 that “the trend of the cases is that the defense may not be raised
over defendant’s objection.” It is to be hoped that the author is correct.
34p. 156.
McGILL LAW JOURNAL
[Vol. 14
for civil commitment prevailing in most jurisdictions, 35 he can be
civilly committed. In the words of Morris and Howard:
Power over a criminal’s life should not be taken in excess of that which
would be taken were his reform not considered as one of our purposes.
Let the maximum of his punishment be never greater than that which
justice.8 6
would be justified by other aims of our system of criminal
Thus, some scholars would not concede –
as Professor Goldstein
does –
that detention beyond the limits fixed by the Penal Code
can be “justified” by any consideration, let alone the “welfare” of
the patient or the “welfare” of society.
The author continues, however, very ably to urge that continued
detention does involve “serious questions”, 37 even given the premises
stated. First of all, he suggests that the “model upon which the
law builds”38 (what he means is, the mental hospital bureaucracy,
not “law”9) is “the stereotypical madman of public imagination”
who “must be restrained at all costs.” The stereotype, of course,
totally corrupts the typical actuality. Sixty-five per cent of such
persons are offenders against property, “at worst burglars. ’40
Indeed, Frederick Lynch, 41 to mention one specific example, was
merely the utteror of two $50.00 bad checks. Some such persons
should be released, Goldstein argues, even if one could confidently
predict that they would commit similar offenses
in the future.
The “cost and consequences of indefinite detention” and the fact
that “insurance… may be available to mitigate the loss ‘ ‘ 42 should
be weighed in the scales.
Even as to the “untreatable man of violence,” serious questions
intrude. How certain are the predictions? Although the author does
not raise the point, at least one statistical study by psychiatrists
reveals that psychiatrists are less successful than judges in this
35 Professor Goldstein recognizes this difficulty. E.g., p. 160.
36N. Morris and C. Howard, Studies in Criminal Law, (London, 1964), pp.
175-176 (their emphasis). See also N. Morris, Impediments to Penal Reform,
(1966), 33 U. Chi. L. Rev. 627, at pp. 638 et seq.
37 P. 157.
38 p. 156.
39 See, e.g., Judge Burger’s concurring opinion in Blocker v. United States,
(1961), 288 F. 2d 853, at pp. 857-62 (D.C. Cir.), and his dissenting opinion in
Campbell v. United States, (1962), 307 F. 2d 597, at pp. 603 and 608 (D.C. Cir.).
See also Mimis V. United States, (1967), 375 F. 2d 135, at pp. 141-42, n. 6
(5th Cir.).
40 pp. 156, 157.
41See Overholser v. Lynch, (1961), 288 F. 2d 388
(D.C. Cir.), and other
discussions of the Lynch case cited at note 31, supra.
42 P. 157.
No. 4]
BOOK REVIEWS
respect. 43 The author poses other pertinent questions, for example,
“will he be successful… ? Will the police intervene?” The patient’s
“freedom”, moreover, must be weighed in “moral” and also in
“pragmatic” terms. “For example, should his economic contribution
during each day he is not likely to be violent be weighed against the
harm he may do on the days when he will be?”‘ 44 Indeed, it is
conceivable that events after release may effectuate his “cure” in
ways unanticipated by his therapists, if any, who after all are not
omniscient. Professor Goldstein concludes this discussion with three
admirable sentences:
A system of indefinite detention tries to act “as if” it
is possible to
eliminate risk, to give the appearance of scientific precision to judgments
which are all too human and too fallible. The unhappy fact is that a system
of indefinite detention can be justified only if we are confident we can
achieve cure or predict the degree and frequency of danger. Until we do so,
such a system invites the timid, the punitive, or the unconcerned to sacrifice
individual liberty at the altar of security. 45
There are two proposals for determination of the mental condition
of an accused found not guilty by reason of insanity: (1) termination
of detention upon expiration of the maximum possible sentence for
the crime with which defendant had been charged, with an option
in the State to bring civil commitment proceedings (which it would
have in any case); and
(2) regarding defendant as “acquitted”
when the jury verdict or finding of insanity at time of crime is
made, but with a duty in the State to initiate civil commitment
proceedings.
Both proposals are built on the assumption that the civil commitment process
has developed standards which would protect the rights of the patient
and rescue the issue from the ambiguity found on the criminal side.
The assumption is “only partly warranted.” At present, “the
special virtue of civil commitment lies more in its procedure than
its substance.” 46 Certainly the “substantive” rights reduce to invisi-
bility under civil commitment statutes which permit involuntary
hospitalization of a person who, while not a danger to others or
even to himself, is “in need of care or treatment in a mental hospital,
and because of his illness, lacks sufficient insight to make application
therefor.” 47 One readily agrees with the author that there is little,
43 See Rappeport et al., loc. cit., at pp. 88, 89.
44 P. 157 (emphasis in original).
45 p. 159.
46 p. 160.
47 A Draft Act Governing Hospitalization of the Mentally Ill, sec. 6, Public
Health Service Publ. No. 51
(Federal Security Agency, 1951). See also the
valuable resumes of state legislation in The Mentally Disabled and the Law,
McGILL LAW JOURNAL
[Vol. 14
if any, “special virtue” in the “substance” of that provision. Does
the “procedure” stand in better case?
in Seattle, Washington, as
The “procedures” which Professor Goldstein considers have
“special virtue” are ephemeral on paper and non-existent, typically,
in actual practice. 48 Let us examine, very briefly, the efficient civil
commitment “procedure”
it actually
operates. 49 The allegedly mentally ill person is taken to the psychiatric
ward (fifth floor) of King County Hospital for detention and treat-
ment pending hearing. The hospital attendants take notes on the
conduct of the person, which are admissible at the hearing, but
no actual psychiatric examination is made until that all-important
moment. The hearing is held in a room adjacent to the psychiatric
ward. The presiding judge has instructed the hospital staff not
to administer sedation if at all possible within 24 hours of the hearing,
and 90 per cent of the persons brought before the court are not
drugged. (Hence ten per cent are insensible.) A record of medication
given the patient and in fact a complete dossier, including hearsay
observations of the nursing staff and others, is put before the court.
The psychiatric examination itself is conducted at the hearing by
two psychiatrists
(in practice, always the same two). They are
paid $12.00 per case and conduct virtually all the examinations
because “they specialize in quick diagnosis.” The diagnoses have
got to be “quick” because court is held only once a week (on Tuesday
morning) 5 and 8 to 12 cases are handled at each hearing.r1 The
psychiatric examination is “joint” and consists of reading the dossier,
listening to the witness or witnesses who initiated the proceeding,
and conducting a brief verbal exchange with the allegedly “mentally
ill” person. After this interchange, the subject is led away and the
psychiatrists render their opinion. Most of the subjects are found
commitable 52 and are on their way to Western State Hospital by
1:00 P.M. the same day.
4
ed. by Lindman and McIntyre, (Chicago and London, 1961), which also reprints
the draft Act at pp. 397 et seq.
8See, e.g., Beaver, loc. cit.; Cohen, The Function of the Attorney and the
Commitment of the Mentally I1,
(1966), 44 Texas L. Rev. 424; Kutner, The
Illusion of Due Process in Commitment Proceedings, (1963), 57 Nw. U. L.
Rev. 383.
4 9 Based on interviews and attendance at hearings by Mr. Richard Fallon
in 1967 and by Mr. Donald A. Mallett in 1967-68, both third-year law students
at University of Washington School of Law at the time of their respective
studies.
5OFormerly the hearings were held twice a week.
51At one hearing attended by Mr. Mallett, twelve cases were heard.
52At the last hearing attended by Mr. Mallett, 11 of the 12 subjects were
found “mentally ill”; no case took more than 15 minutes.
No. 4]
BOOK REVIEWS
This outrageous “procedure” is apparently relatively enlightened
by contrast to the practice prevailing in certain other jurisdictions. 53
Indeed, the patient is frequently denied opportunity to appear at
the hearing at all on account of the asserted “medical” and “thera-
peutic” requirements of the patient’s “well-being”. 4 The therapeutic
ideal is that the proceedings should be informal, “congenial”, and
contention-avoiding. There is no conflict between the social aspi-
rations of the collectivity and the interests of the individual patient:
initiated at the request of… responsible
[P]roceedings
individuals… The patient is then examined by one or two doctors…
If the doctors feel that the appearance of the patient in court may be
detrimental to his health, this appearance may be waived in many states.
In fact, court approval is usually given as a matter of routine on the
basis of the considered opinions of properly qualified physicians. 55
In this situation, the psychiatric experts, the court, the hospital
custodians and, in the criminal context, the prosecutor, all represent
the State. To use Professor Goldstein’s words:
[should be]
In an effort to patch and mend the tearing social fabric, the state is
playing an increasingly paternal role, trying to help as many as possible
to realize their expectations and to soothe and heal those who cannot.56
Given this situation, the insanity defense is desirable, he continues,
because it serves, in its “emphasis on whether an offender is sick
or bad,” in “reinforcinq the sense of obligation or responsibility.”5 7
This is highly debatable; the idea that “the concept of ‘blame’ may
be necessary” to “the almost forgotten drama of individual respon-
53 See, e.g., Hackin v. Arizona, (1967), 88 S.Ct. 325, at p. 331 (Douglas, J.,
(Texas: “by one report 66 seconds are
dissenting upon dismissal of appeal)
given to a case, the lawyer usually not even knowing his client and earning
a nice fee for passive participation”); Kutner, lc. cit., at p. 385. (Illinois:
“examinations are made on an assembly-line basis, often being completed in
two or three minutes, and never taking more than ten minutes”); J. Robitscher,
Pursuit of Agreement Psychiatry and the Law, (Philadelphia and Toronto, 1966),
p. 127 (1.6 minutes per commitment “sometimes cutting off the patient in the
middle of a sentence”); Comment, Liberty and Required Mental Health Treatment,
(1966), 114 U. Pa. L. Rev. 1067, at p. 1069 (5 minutes).
54 See, e.g., Arco v. Ciccone, (1966), 859 F. 2d 796, at p. 798 (8th Cir.)
(“from the nature of the situation, whether the defendant shall be called upon …
to testify at the hearing is necessarily a matter for the discretion of the court”).
55L. Linn, A Handbook of Hospital Psychiatry, (New York, 1955), p. 422
(emphasis added). Compare Professor Goldstein at p. 36: “Behavior which
is … nonconforming may make a man seem mentally ill to… psychiatrists
who are inexperienced or unsophisticated or simply intolerant.” (Emphasis
added.)
56 P. 224.
57 Ibid.
McGILL LAW JOURNAL
[Vol. 14
sibility” 5
with it.
is well-taken, but the insanity defense has little to do
Two possible systems of criminal justice can be supposed. One
involves objective rules, equal application of constitutional and other
principles, impartial and assiduous ascertainment of fact questions
in an adversary setting, due process, the trial of crimes instead of
men-
in short, the “rule of law”. The other system of criminal
justice is the inquisitorial, administrative, bureaucratic monstrosity
which our society has actually institutionalized. Professor Goldstein’s
point of view seems in some (but not all) parts of the book to be
that of the rule-enforcer, seeking the efficient system “which will
enable us to move the individual toward conformity or to a reasonable
non-conformity.” 59 The dangers of paternalism are recognized, but
the conception of the state as helpful protector seems to have the
author’s approval. Another viewpoint is that of the individual,
victimized and robbed of the opportunity to defend himself against
an opponent, the state, which has neither the decency nor the moral
strength to acknowledge the conflict of interest.
III
Another difficulty with indeterminate detention, however benign
may be its purpose, is “the ease with which it may become the
instrument for abuse of power by those who refuse to accept the
insanity defense as dispositive of the issue of blame and punish-
ment… “60 Presumably the author is here very elliptically suggesting
the possibility that sadistic or otherwise abusive mental hospital
supervisors and attendants may exist. There is substantial evidence
that this is the case; if persuaded, Professor Goldstein ought to
state the fact directly without beating around the bush. 01 A punitive
attitude was evinced by the then Superintendent of St. Elizabeths
Hospital, one of the largest mental
institutions, Dr. Winfred
Overholser, when he testified: “We try to see to it that a verdict
58 Ibid.
69 Ibid.
GoP. 155. See also p. 186 (“punishment may be found in the hospital as well
as in the prison”).
keeping patients “in
(pp. 27-28) :
61 The author does mention the punishment routines which are useful
in
line” in the day-to-day administration of mental hospitals
Suspension of privileges, ridicule, corporal punishment, isolation, electro-
shock treatment, assignment to bad wards or unpleasant jobs all served as
effective punishments … “For most patients the threat of being put on
the shock list had an instant effect in bringing their conduct into line.”
No. 4]
BOOK REVIEWS
of not guilty by reason of insanity is not a reward.”6 2 An attorney
witness has sworn that he has a client who served time in road
gangs in the South of the United States and asserted “dead seriously
that he would rather serve a year in any of them than six months”
in St. Elizabeths0 3
Perhaps more significant than any physical brutality on the
part of attendants and other hospital personnel,
is the general
dehumanizing and hopeless atmosphere of the total institution, which
is apparently well depicted by Frederick Wiseman’s film, The
Titicut Follies, filmed in Massachusetts’ Bridgewater State Hospital
for the Criminally Insane.64 The description of the film by District
Judge Mansfield, who viewed it in determining whether its showing
in New York City should be enjoined 5 upon the motion for pre-
liminary injuction of four Massachusetts Correction Officers,
is
graphic:
I am satisfied that the picture does not knowingly or recklessly falsify or
misrepresent… conditions or the conduct of the plaintiffs… [A] chronicle
of it must to some extent be gruesome and depressing in character, and
in this case the picture fulfills such anticipation. The loudly vocal antics,
haunting stares and grim behavior of many immates, are photographed
against the starkly depressing background of a bare, prison-type hospital.
The film shows detailed closeups of such episodes as… the explosive reaction
of an inmate to repeated taunting by Correction Officers about his failure
to keep his cell clean; … and the unhappy protests of a young, articulate
schizophrenic to the effect that after one and a half years as an inmate
he is being driven insane by the surroundings and by the poor treatment
or lack of treatment by the staff.
The foregoing scenes may well create an impression of hopelessness
and inadequacy, an insensitivity on the part of both Correction Officers
and staff doctors toward inmates under their care, a failure to accord
to the inmates the minimum dignity due to human beings, and an atmosphere
62 Hearings on Constitutional Rights of the Mentally Ill Before the Subcomm.
on Constitutional Rights of the Senate Comm. on the Judiciary, 87th Cong.,
1st Sess., 19 at p. 36 (1961).
63Ibid., at p. 659. See also, e.g., A. Deutsch, The Shame of the States, (New
York, 1948), pp. 44, 58, 81-82, 86 and passim; E. Goffman, Asylums, 2nd ed.,
(Chicago, 1962), pp. 17-18, 21, 27-28, 33, 41, 150, 155, 385 and passim; Redding
V. State, (1957), 165 Neb. 307, 85 N.W. 2d 647, at p. 650; Cong. Rec. (daily
ed.), Sept. 17, 1965, pp. A 5271-3 (for the situation in New York).
04 See Coles’ review of the film, The New Republic, January 20, 1968, at
pp. 18, 28-30.
05Apparenly showing of the film has been enjoined in the Commonwealth
of Massachusetts. Ibid., at p. 28.
McGILL LAW JOURNAL
[Vol. 14
of stygian purgatory where they are relegated
waiting for death. 6 6
to the slow process of
Is it not obvious that the “rehabilitative” justification for inde-
terminate incarceration is rankest hypocrisy, mockery and language-
debauching? This is the case if the situation in Massachusetts, New
York and the District, three of the assertedly most “enlightened”
jurisdictions in the United States, typifies the situation in hospitals
elsewhere. In the context of the insanity defense, the jurors may
be led to believe that the question is whether defendant “is to be
condemned as a criminal or regarded compassionately as insane.”
Actually, as Professor Goldstein justly observes, “the consequences
of condemnation and compassion may not be so very different …
One can in fact go further than that: “Perhaps one who prefers
confinement in an institution for the criminally insane to imprison-
ment in a regular penitentiary really is deranged. ‘ 68
IV
Professor Goldstein advises us that “mental hospitals do not
want [sic] to receive ‘criminal’ types, principally because psychiatry
is usually unable to treat them… “69 But elsewhere he observes
that “the psychiatric literature… urg[es]
the expansion of the
insanity defense, so that more offenders might be brought into the
mental hospitals;” 7
in any case, “the ‘helping’ professions tend to
think they can help even when they cannot…”71 The author also
suggests that the psychiatric literature has ignored the “gnawing
66Cullen v. Grove Press, Inc., (1967), 276 F. Supp. 727, at p. 730 (S.D.N.Y.).
This reviewer has excised some of the more graphic material to be found in
the original.
[T]here has never been anything like it in the world, and I want to forget
it, force it never to have been, for fear of cursing my country, the mother
who gave me birth …
V. Tarsis, Ward 7, trans. by Katya Brown, (London and Glasgow, 1965), p. 157.
67P. 3.
68State v. Dodd, (1967), 70 Wash. Adv. Dec. 2d 491, at p. 492, 424 P. 2d
302, at p. 303 (dictum). Since psychiatrists are better acquainted with the
situation than any one else, the continued “psychiatric… deep hostility…
to the imposition of criminal liability” (p. 102) seems curious, to say the least.
69 P. 215. It is a very fine point, but it is psychiatrists, not “psychiatry”,
who attempt to treat men, and it is the personnel of the mental hospitals,
not mental hospitals, who have desires in the matter. The personification of
organizations and institutions is an increasing phenomenon in
the language-
usage of our time. There is probably at least one example within the four
corners of this book review.
70 p. 159.
71 P. 223.
No. 4]
BOOK REVIEWS
[sic] question of what should be done with those who cannot be
treated successfully.” Finally, he concludes that it is “difficult to
avoid the impression” – he apparently would avoid it if he could 72
that “psychiatrists, and mental health professionals generally,
–
are so anxious to treat the curable ones that they are willing to
sacrifice the incurable by promising society greater protection from
them than may be necessary.”73
There is some evidence that institutional psychiatrists indeed do
want to keep the institutions filled to the brim. For example, Professor
Arens reports:
this
Whatever misgivings may arise on
score vis-a-vis government
psychiatrists are fully matched by similar misgivings vis-a-vis significant
numbers of private psychiatrists engaged in legal-psychiatric work and
observed in the District of Columbia. The interviewing of private psychiatrists
in the nation’s capital to determine their attitudes toward the insanity
defense conducted by project staff members between 1959 and 19.60
revealed a startling frequency in “custodial” and punitive orientation.
Observation of such psychiatrists in court-work further revealed an equally
startling appearance of indifference to the fate of the defendant… There
were, of course, conspicuous exceptions. 7 4
When millions of dollars are spent in the quest for “mental
health”, psychiatrists and kindred “helping” professionals will
naturally discover substantial numbers of “mentally sick” persons.
Courts –
or at least many of them – will tend over the long run
not to call “impartial” experts to testify and will tend not to appoint
“experts” to ascertain incompetency to stand trial, who too frequently
diagnose the subject as free of mental illness. 75 Such a psychiatrist
will tend not to be as popular as colleagues who generally find
prospective “patients” incompetent when the issue is raised by
persons of power and importance in society. No less a personage
than the incumbent Superintendent of St. Elizabeths Hospital, Dr.
Dale Cameron, has testified that “only 50% of the patients…
hospitalized required hospitalization in a mental institution… 176
Does inability to treat have anything to do with incarceration? Too
often, it is believed, the question of treatability is regarded as utterly
irrelevant. Thus, Dr. Duval has observed:
72 P. 159. Professor Goldstein is obviously a very decent, gentle, albeit open-
eyed, human being.
73 p. 159.
74Arens, The Durham Rule in Action, loc. cit., at p. 79, n. 85.
75 See A. Blumberg, op. cit., p. 149: “The disciplines of probation and psy-
chiatry become the willing handmaidens of the court organization, for individual
careers are too often wholly dependent upon the wielders of judicial power.”
76 Quoted in Lake v. Cameron, (1966), 864 F. 2d 657, at p. 660, n. 9 (D.C. Cir.).
McGILL LAW JOURNAL
[Vol. 14
We know that the rate of discharge of patients from public mental hospitals
is easily manipulated and controlled and in some places is not directly
related to the quantity or quality of symptoms still seen in patients
affected…
[W]hy do only seventy-three of 104 patients who ask for court hearings
get them? Answers to these questions might be revealing. 77
The salient reason for acceptance or release of patients appears
to be the vested interest, or the supposed interest, of the particular
hospital as an institution and of the “helping” profession in question.
This is how Dr. Rappeport and his colleagues put the matter:
leader
in
this particular hospital
the superintendent was a
The vested interests of the hospital and profession must also be considered.
At
the
treatment of alcoholism and the hospital had an established treatment
program. We would assume that this factor greatly influenced the hospital’s
reluctance to release an alcoholic when they still believed him to be ill.78
The other side of the coin of institutional interest is the extra-
hospital pressure, widely varying from inmate to inmate, for or
against his continued detention.”0 For example, in the field of civil
commitment, detention is “undesirable where the patient occupies
an important public position, e.g. director of [a] company… ,”8
Professor Goldstein also recognizes that “‘mental disease’ is as
much a social concept as a psychiatric one” and that “its content
is affected by the ends for which the diagnosis is being made.’ ‘ 1
77 Rappeport, op. cit., at p. 94. There are, of course, yet other anti-release
considerations, for example, the possible –
liability
of the releasing psychiatrist for negligence. See, e.g., Underwood V. United
States, (1966), 356 F. 2d 92, at p. 98 (5th Cir.).
albeit highly unlikely –
78 Rappeport, et al., loc. cit., at pp. 90-91.
Doctors and nurses were run off their feet: it was the traditionally busy
season in all mental hospitals. Thousands of new patients were admitted in
the days preceding the October Celebrations. They were the restless and
undesirable elements in the city, whose presence threatened the holiday
mood –
people who might infiltrate the parade for instance, and shout
“Down with Communism !”
Tarsis, op. cit., at p. 151.
79 Samdelov was a well-known bibliographer. Like several other patients, he
had been committed by his relations who needed his “living space” (in view
of the acute housing-shortage, this was not an uncommon practice).
Tarsis, op. cit., at p. 17.
S D. Henderson and R. Gillespie, A Text-Book of Psychiatry, 8th ed., (London,
1956), p. 682. See also Szasz, Commitment of the Mentally Ill: “Treatment”
or Social Restraint, (1957), 125 J. Nerv. & Ment. Disease 293.
s P. 85. Is not this highly analogous to the situation which had developed in
National Socialist Germany by about 1940?
In the field of crime prevention the judge no longer merely administers
justice. His… activity approaches that of an administrative official. He
No. 4]
BOOK REVIEWS
In brief, decision of the detention question tends to become a matter
of social, political and economic power weighed together with the
institutional demands, and has little to do with “scientific” diagnosis
or other assessment of the individual “patient” as an autonomous
human being.
The “current ideology”8 2 involves not only “the struggle…
to
civilize the social appetite for retribution and deterrence,” 83 but
also the idea that “public mental hospitals, as instrumentalities of
the state, may reasonably be expected to send patients back to the
community as soon as their condition warrants … “84 Clearly, when
theory and ideology are applied to real life, there are only two
alternatives: one is to modify the ideology to make it more compatible
with actual experience; the other is to attempt to force reality to
fit the ideology. The authoritarian mentality follows the latter
course. When a prevailing conception also embodies a long-term,
world-historical idea of the desirable, as well as the historically
inevitable, scheme of social organization, the effort to mold society
to fit the preconception, and concomitant measures to overcome
resistance to it, call for such massive deployment of organization
and social energies that the result is in fact an authoritarian autocracy
totalitarianism. “Totalitarian rule is the claim transformed into
–
political action that the world and social life are changeable without
limit.” 85
no longer looks for justice alone, but also acts in accordance with expediency.
Judge and administrator, judiciary and police, often meet.., in the pursuit
of identical objectives.
T. Maunz, quoted in C. Friedrich and Z. Brzezinski, Totalitarian Dictatorship
& Autocracy, 2nd ed., (New York and London, 1965), p. 215 (emphasis added).
82 P. 158.
83 Ibid.
84 Overholser, in Hearings, note 62 supra, at p. 21. This ideology, that the
interests of individual and state never diverge, is not Professor Goldstein’s:
the state’s interest in every aspect of the
“[I]n… the European experience…
trial has often led to oppression.” P. 138.
85 H. Buchheim, Totalitdre Herrschaft – Wesen und Merkmale, (1962), p. 24,
quoted in C. Friedrich and Z. Brzezinski, op. cit., p. 16. Professor Goldstein
observes: “Perhaps when there are experts who do know… what really ’causes’
the matter can be given over entirely to them…” P. 91. The author
crime …
probably does not expect such a situation to develop in the foreseeable future;
if it does, he will undoubtedly want to reconsider the proposal. His very percep-
tive discussion of the jury, which he calls “the traditional embodiment of com-
munity morality” (ibid.), makes this clear.
McGILL LAW JOURNAL
[Vol. 14
V
Professor Szasz scores the Goldstein book for its “irresolute stand
on the moral issues of this subject,” 6 and indeed cites one of the
arguments in the book as “nonsense”:
[E]liminating the insanity defense would remove from the criminal law
and the public conscience the vitally important distinction between illness
and evil, or would tuck it away in an administrative process.8 7
Is this really “nonsense”? Even if it is, this is not necessarily Pro-
fessor Goldstein’s position; in lawyerlike and scholarly fashion he
has marshalled arguments (this is only the third in a series) against
abolition of the insanity defense. If very many people agree with
the position, moreover, it is an argument which a thorough legal
scholar should take into account.
The complaint that the author –
like most, perhaps too many,
of us lawyers –
is difficult to pin down, is well taken. One sym-
pathizes with Professor Szasz. In the words of Albert Camus: “The
logic of the rebel is to… insist on plain language so as not to
increase the universal falsehood… “8 The difficulty lies not in
what the author has written, which is difficult to fault because it
is very thorough and there is something there for everyone, but
because of what he has not written.
Professor Goldstein is an extraordinarily knowledgeable scholar.
He knows that the insanity defense in practice is only a tiny corner
of the great social trend of our time to dehumanize “deviants” 89 by
application of “a species of administrative law, shifting the defendant
from a criminal process to a civil-medical one which explicitly
incorporates elements of preventive detention.”90 He knows, moreover,
that “the ‘liberal’ position” has embodied the unrealistic and false
“tacit assumption.., that a paternal state can put him [the deviant]
right by psychotherapy or by judicious social planning, if only the
‘helping’ professions are provided with the resources to do the
86 National Review, March 12, 1968, p. 247. See also Szasz, Book Review,
(1968), 48 B.U.L. Rev. 151. Interestingly, Professor Diamond finds a correlative
statement in the book (p. 224) “outrageous”. Diamond, Book Review, (1968),
56 Cal. L. Rev. 920, at p. 922. With the emotional Diamond review one should
contrast the brilliant effort of the Baroness of Abinger. Wootton, Book Review,
(1968), 77 Yale L.J. 1019.
87 P. 223.
88 The Rebel, trans. by Bower, Vintage paper ed., (New York, 1956), p. 285.
89 “[T]he phrase ‘mental disease’ has begun to look less and less medical,
more and more normative…” P. 89.
00 p. 20.
No. 4]
BOOK REVIEWS
job.” 9′ He is well aware that the mental health ideology “has
unquestionably captured the imagination of the reformers and has
been propagated almost as a faith.” 92 He even adverts to the extent
to which public attitudes about the subject have been formed by
propaganda (“Americans have become sensitized”). 93 This reviewer
thus formed the strong impression that Goldstein is quite sympathetic
to the Szasz position.
Perhaps Professor Goldstein simply chose to write on this occasion
about a rather more circumscribed subject and in a judicious, circum-
spect tone which would not offend his friends in the “helping”
professions, or even perhaps some of his colleagues at Yale Law
School. 94 Conceivably Professor Goldstein merely shares the common
and growing American fear of being called “controversial”. But if
he were ever to turn his vast talents to a systematic exposition
of the “moral” questions Szasz wants him to explore, we might
find ourselves confronted one day with a true classic. Professor
Szasz would consider –
there are some of us who would be tempted
to agree with him –
that Goldstein has a duty to develop his
knowledge in another book, perhaps one entitled The Therap~eutic
State. But Professor Dershowitz has similar knowledge. So has
Professor Chayet. They have not written that book either, for
whatever reason; at least it has not yet come to this reviewer’s
attention. It is in any case impossible to force a man to undertake
such a creative task; the impulse can only be generated from within.
One can no more drive a Goldstein to write that book than one could
coerce a Beethoven to compose the Diabelli Variations.
Why does one write a scholarly book or article? There are many
to advance knowledge, legal scholarship and
possible answers: (1)
91 P. 14. The author is also cognizant that psychiatry can hardly yet be desig-
nated a “science”: “[P]sychiatrists’ diagnoses …
reflect the.., value system,
and the tenets of differing schools of psychiatry… What is psychosis to one
may be neurosis to another…” P. 134.
92 P. 14. On a narrower front, “elimination of M’Naghten and willingness to
adopt one of the newer rules, has been treated as a test of liberal faith.” P. 47.
93 P. 13. Cf. pp. 21.1-212. See also pp. 20-21:
At the very time when the “mental health” message is winning its place in
the popular culture, psychiatrists and other behavioral scientists are ques-
tioning the faith… The message of mental health continues to be propa-
gated from public platforms by persons who know full well that the message
no longer quite fits the facts.
Perhaps it is fortunate that laymen, at least as jurors, remain “remarkably
unwilling to recognize mental illness.” P. 42.
94 Compare E. Rostow, The Sovereign Prerogative, (New Haven and London,
1962), p. xv, with Kurland, Review of C. Black, The Occasions of Justice, (1965),
32 U. Chi. L. Rev. 386, at p. 390, n. 11, and Kurland, Foreword to the Supreme
Court 1963 Term, (1964), 78 Harv. L. Rev. 143, at p. 145, n. 13.
McGILL LAW JOURNAL
[Vol. 14
analysis; (2) to provoke thought and incite legislative or other action
to
or inaction; (3) to seek the Truth and to state the Truth; (4)
to provoke other scholars,
work magic and perform with art; (5)
debate with them and keep them “honest”; (6) to make a historical
(7) to stimulate the cross-fertilization of disciplines and
record;
to foster the
growth in diverse fields of scholarly inquiry;
continuing liberal education and the growth of understanding and
personal qualities of the author and his readership; (9) to enhance
the prestige of the author, his employing institution and his pub-
to evoke foundation, governmental and other grants;
lisher; (10)
(11) to earn a profit for the publisher and royalties for the author;
(12) to be read; (13) to publish or perish; (14) to survive spiritually;
to achieve immortality. Doubtless other reasons exist.
and
Some of these functions are conceivably, even probably, inconsistent,,,
but some one or more of them must be in the head of the legal
scholar –
or purported scholar – when he puts pen to ink.
(15)
(8)
There is very highly respected scholarly opinion that: “Love
for an object of study is pleasant but for a long time has not been
considered helpful to analytical work.” 90 On the other hand, as
Delacroix remarked with profundity: “For realism not to be a word
devoid of sense, all must have the same minds and the same way
of conceiving things.197 It is not only unnecessary, but impossible,
for academic works to be purely imitative (as Camus asserts they
95 Some of these functions are certainly inconsistent with what this reviewer
has heard glorified as the “building block” theory of scholarship, under which
each contribution to the literature must “build upon” or “advance beyond” what
has gone before. Under this view Thomas Szasz does not “fit in”. This is a
progress-extolling, Hegelian view. For every Georg Hegel there should be a
Jacob Burckhardt (see especially the opening chapter of Weltgeschichtlicho
Betrachtungen), but the “building block” ideologues exclude our Burckhardts
from their systems by definition.
96Meltzer, Review of Ross, The Government As a Source of Union Power,
(1965), 33 U. Chi. L. Rev. 166, at p. 174. Professor Goldstein thus observes that,
while the voluminous literature about the insanity defense has achieved “a
remarkable degree of consensus” that the existing rules are inadequate: “Un-
fortunately the literature has been so polemical that it has not provided the raw
materials for [judicious] appraisal of claim and counterclaim.” Pp. 4-5. Perhaps
the author conceives that the evangelists of the “faith” have found reaction in
Professor Szasz, while Professor Goldstein stands –
in
the middle ground.
or purports to stand –
97 Quoted in A. Camus, The Rebel, p. 270, n. 8. It must be very comforting
to be a member of a faculty or other aggregation of
(and “reinforcing”)
persons where the views (and “values”) of every member are a mirror of
the views (and “values”) of every other. The beauty and value of each
man must be perfectly obvious to all of the rest since each man sees in every
is questionable, however, whether
colleague only a reflection of himself. It
No. 4]
BOOK REVIEWS
are9S) ; neither is there any living man who can be certain of his
own perfect objectivity. In the words of Albert Camus:
Real mastery consists in refuting the prejudices of the time, initially the
deepest and most malignant of them, which would reduce man, after his
deliverance from excess, to a barren wisdom. 99
Thomas Szasz should not attack Goldstein for writing “nonsense”
–
at least not this particular “nonsense”. We scholars who regard
ourselves as “hardheaded” offend enough of our colleagues without
discerning error where it cannot fairly be found –
especially when
the victim may be far more sympathetic to the critic than the
critic imagines. On the other hand, Professor Goldstein should not
have slighted Szasz’ magnificent contribution to the literature. 00
There should be room enough and more in academia for both types
of scholar. The efforts of each man are far too significant to approve
their going their several routes like two ships passing in the night.
Thomas Szasz writes with a view to immortality; the impact of
his work will be diffused in the minds of men for decades or centuries
hence, if at all. In any case, his writings will stand as documentation
that at least one man profoundly understood the dehumanizing,
collectivizing tendencies of our time. His work most certainly will
not persuade, say, B.F. Skinner. Abraham Goldstein, on the other
hand, writes with a view to the present and to persuade the reigning
elite; and he may do it.101 The impact of his book will be in the
nearer future, and on a less ambitious scale. Nevertheless, it will
be read by lawyers, judges, psychiatrists and others for a long time
to come –
a consummation which this exceedingly fine work richly
merits.
James E. BEAVE*
such a faculty or other group will grow in stature; since each man already
knows it all and thinks exactly like every other, each one reinforcing all the
rest, the result may be inbred, static and smug.
98 Ibid., at p. 271.
09 Ibid., at p. 300.
10 In a rather careful review of 44 close-typed pages of footnotes, this re-
viewer was able to uncover only four references to work by Szasz: p. 247, n. 29;
p. 253, n. 7; p. 268, n. 21; and p. 273, n. 2. Szasz’ contributions would appear
slighted. Yet Professor Goldstein is of much too lofty stature to be influenced
by ad hominen diatribes, e.g., Weihofen, Review of Szasz, Psychiatric Justice,
(1966), 19 J. Leg. Ed. 117 and Diamond, Review of Szasz, Law, Liberty, and
Psychiatry, (1964), 52 Calif. L. Rev. 899. There is not one calumnious aspersion
in
to report
“inconsistency” in other scholars. An example is to be found, however, at pp.
100-101.
in fact, the author seems hesitant even
the entire book;
101 See Time, March 22, 1968, p. 53.
* B.A. Wesleyan, 1952; J.D. Chicago, 1958. Associate Professor of Law, Uni-
versity of Washington School of Law.
McGILL LAW JOURNAL
[Vol. 14
Index Gagnon. Edited by Louis-Philippe Gagnon. Montreal: privately
published. 1966. Pp. iii, 928. ($135.00).
Practitioners, professors and students alike have long deplored
the paucity of legal research aids for Quebec materials. It is one
thing to have the assurance that most, if not all, significant cases
are reported in the many Quebec publications, but quite another
thing to locate one of these judgments or, worse still, to find other,
later, authorities which either support or reject the holding of the
first case. Prof. Brierley, in his useful Bibliographical Guide to
Canadian Legal Materials,’ has put the matter this way:
“Reporting”, as T.K. Ramsay wrote in 1865, “is perhaps the most valuable
portion of legal literature. ‘ 2 But volumes of reports constitute simply a
number of documents arranged according to the accident of time –
by
the month and by the year. The accessibility to the contents of reports
is therefore an important aspect of legal research. The usefulness of
reporting is obviously impaired if there are no reference works which
in the
classify, at regular intervals, the subject matters as contained
reports…
The Index Gagnon does not purport to classify the jurisprudential
materials which it contains according to subject matter so that one
can find, by subject heading, the cases which one seeks; however,
having the names of one or more cases in an area, one can readily
determine whether those cases have subsequently been cited in later
Quebec reports.3
Let it be said immediately that the work is an important, even
an invaluable, tool to the practitioner, to whom time is measured
in dollars, and to the academician, to whom total thoroughness is
essential. The work has its limitations though, for it represents thirty
years of part-time work in arduous detail by a single man, and one
suspects that more hands on a full-time basis would have been most
helpful to the author, Louis-Philippe Gagnon, who now sits on the
Provincial Court of the Province of Quebec.
Other citators exist in Canada, the United States and the United
Kingdom but, needless to say, none of these covers the Quebec reports.
At one time, the current Index of Cases Judicially Noticed in
Canadian Reports 4 purported to deal with the judgments reported
12nd ed., (Montreal, 1968), p. 200.
2 Digested Index to Reported Cases in Lower Canada, (Quebec, 1865), p. v.
3 That is, reports published subsequent to 1923. The citator has not included
all volumes of all the reports. See the list and discussion of this fact infra at
p. 780.
4 Edited by Leonard G. Wrinch in 3 volumes, (Toronto, 1946), to which there
have since been two permanent supplements (the first, covering the material
from 1946 to 1952, edited by Wrinch, was published in Toronto in 1953; the
No. 4]
BOOK REVIEWS
in all the Canadian provinces 5 but this is no longer the case. The
only significant Quebec citator was Mathieu’s Table Alphabdtique des
Causes de la Province de Qu6bec 6 which has the obvious defect, in
1969, of only covering those reports published up to 1899. The other
Quebec citators are not as thorough as Mathieu and cover short
periods of time. 7
Any citator has several built-in defects. Obviously, by the nature
of the work, it is useless to the researcher who has nothing more
than a subject heading under which he hopes to find cases. It also
has the deficiency of not drawing to the reader’s attention any
judgment which cites no authorities. To some, though, its most tire-
some characteristic is its thoroughness, for a case which has been
cited very many times will have what seems to the researcher in
a hurry an interminable list of citations. One can only reply to this
statement that this aspect of the citator is, in reality, its most positive
feature –
the reader is secure that he has found all the citations
of his original authority. There are ways, however, of making the
researcher’s job easier. The first is the inclusion, next to each citation,
of some indication whether the citation merely refers to the original
case, follows or reverses it or affects it in some other of the numerous
ways a citation can affect the original decision.” The American
Shepard citators, with their high degree of efficiency and expertise,
employ the second (the only citator to do so, to the reviewer’s
knowledge); namely, the occasional dismantling of the myriad
citations of a judgment dealing with several issues into groups of
citations dealing with each of the issues individually. The Index
Gagnon does not help its user in either way. On the other hand,
the Index does make a partial contribution in this area by indicating,
where it is possible to do so, the page of the original judgment to
which reference is made in later citations. While this method does
second, covering the materials from 1953 to 1957, edited by Wrinch – who died
before its publication –
and Georgina M. Broad, was published in Toronto in
1958) and a looseleaf supplement, which is kept up to date.
5 In its earliest edition of the same title, by E.R. Cameron, the then Registrar
of the Supreme Court of Canada, (Toronto, 1912).
It was represented as
“Being a list of Canadian cases dealt with in judgments reported in the official
reports of the provincial courts and the Supreme and Exchequer Courts of
Canada, as well as of the Judicial Committee of the Privy Council, from the
earliest time down to the end of the year 1910 together with a statement of
the manner in which each case is judicially noticed.”
62 vol., (Montreal, 1901-1902).
They are set out in tabular form in Brierley, op. cit., p. 213.
8The Winch work, for example, lists 30 ways; the Shepard United States
Supreme Court Citator lists 10.
McGILL LAW JOURNAL
[Vol. 14
assist the reader in finding citations to a particular issue (discussed
at the page subsequently cited), it does not necessarily lead him
to all the later references to that issue.
The Index Gagnon’s most positive quality is its layout. Printed
in a comfortable (and large) style of type on heavy white paper
with space on each page and enclosed in a large sturdy binder from
which pages are easily removed for photocopying, it has a most
pleasing aspect. In addition, unlike the Shepard system, one may
make use of the volume with only the name of the plaintiff in hand.0
Also, because of the method which Gagnon used to compile the work,
one can find out if any case from any jurisdiction has been referred
to in a Quebec case. Thus, one finds numerous American, English
and Canadian authorities throughout the work.
The most obvious limitation of the work is the span of the material
covered in it. In the first place, the volume only covers materials
cited in those reports issued up to and including the end of 1965.
(This defect will be remedied as soon as the author is in a position
to publish his second edition. One would hope that, thereafter, the
readership assured, the additions to the Index would be on at least
an annual basis). Second, none of the reporting systems has been
canvassed in its entirety, not even the most important ones, as the
list which follows indicates.
Years and
Name of Series
Court of King’s (Queen’s) Bench ………………………
Superior Court ……………………………………………………..
Revue du Barreau ……………………………………………….
………………………………………….
Rapports de Pratique
Revue L6gale …………………………………………………………
Revue de Jurisprudence ……………………………………….
Supreme Court of Canada ……………………………………
Exchequer Court of Canada
Miscellaneous other series are covered in some incomplete way, generally
only by the odd few volumes here and there.
Notwithstanding this limitation, the Index does cover some 364
volumes of case reports and law reviews, 10 generally in the most
Volumes Covered
[1965]
[1965]
(1965) 25
[1965]
[1965]
(1939) 45
[1965]
[1965]
(1928) 44 –
(1926) 64 –
1 –
(1941)
(1926) 29 –
–
[1947]
(1928) 34 –
(1921) 62 –
–
[1923]
………………………………..
9 The Shepard system requires one to have the citation of the case –
it is
organized by series of report and one looks to the volume and page reference in
the citator which corresponds to the reporting system where the original case
is found.
Most citators employ the system of the Index Gagnon and some even go
so far as to classify the cases under the name of the defendant as well as the
plaintiff.
‘OActually, the law reviews are barely touched. Only the Revue du Barreau
the University
and 12 volumes of the Canadian Bar Review are included;
reviews are all omitted.
No. 4]
BOOK REVIEWS
important period of time from the point of view of the practitioner,
above all: about 30-40 years extending almost to date. Furthermore,
the author states that:
Cette liste se projettera dans l’avenir comme dans le pass6, dans certains
cas, chaque ann6e.11
From the point of view of accuracy, the work has much to be
said for it. Although the reviewer has not made a spot check, he
has put the Index to much use in the course of his work and has
come across few mistakes. The author has freely admitted in con-
versation that there are many errors which have come to his attention
and which he plans to correct in his next edition but one suspects
that when these are weighed against the amount of material in the
Index, they are but a small percentage. Interestingly, the work itself
corrects many errors of citation in the reports and thus may occasion-
ally serve as a method of locating cases which one cannot otherwise
find because of a false citation.
$135 –
Despite the usefulness of the Index Gagnon, there can be no
doubt that its price –
is a deterrent to many potential
purchasers. There cannot either be any doubt but that the same
work could have been published more cheaply, and that without
losing its effectiveness. The quality of the paper, the size of type
used (which unquestionably accounts for the large dimensions and
the number of pages), the amount of white space and the sturdiness of
the binder are all very pleasing qualities, but not necessarily qualities
for which one would be willing to pay, if one had had the choice.
Unfortunately, perhaps, the author has made that choice, at the cost,
no doubt, to himself, of many purchasers and, to his subscribers, of
more frequent editions (perhaps on a quarterly or at least annual
basis) which would keep the legal profession of this province right
up to date.
On balance, the Index Gagnon remains a very great asset to
Quebec legal researchers. It can, however, be improved, primarily
by the extension of the materials covered both forward and back in
time, at least in the major series of reports and law reviews (which
are not covered at all). In fact, as the years slip by, a second edition
of the work will become absolutely essential if it is to retain its
market at all.
Ronald I. COHEN
l1 p. iii.
* Editor-in-Chief, McGill Law Journal.
Some Thoughts on the Arms Race,
Disarmament and Inspection
A Propos: Disarmament Inspection Under Soviet Law. By Harold J. Berman
and Peter B. Maggs. Dobbs Ferry, New York: Oceana Publications Inc. 1967.
Pp. vii, 154. ($7.50)
Try to imagine yourself in the privacy of your home enjoying the
thrills of a professional hockey game on your TV screen, or tasting
the pleasures of a licit or illicit embrace, when –
there
is a knock on the door. Upon opening the door, you are confronted
with three unknown faces, one black, one Asiatic and one white.
In uncertain English they proceed to inform you that they are
members of the international disarmament inspectorate and have
come to search your house for hidden weapons. The scene may
today appear incredible, almost too Orwellian to be true, but it is
quite within the realm of possibility should agreement one day be
reached on “general and complete” disarmament.
suddenly –
The danger of such invasions of our privacy is, however, far from
immediate. The road to end the arms race through a comprehensive
disarmament with ubiquitous international inspection is a very long
one, and as of now only a short distance has been covered.
Since the end of World War II, many official and private proposals
have been made for general and complete disarmament and all the
major states have, on numerous occasions, expressed their support
for ending the global arms race. In the same period, governments
and private experts have advanced a number of less ambitious
recommendations encompassing a wide range of steps aimed at
curbing this or that dimension of the arms race. Accomplishments
to date only remotely reflect the effort expended on planning
measures of arms limitation and the world is nowhere near the
professed ultimate goal of general and complete disarmament.
The catalogue of arms control agreements concluded during the
past two decades is anything but encouraging. It was only in 1959
that the first effective step toward controlling the arms race was
taken with the signing of the Antarctic Treaty. Though not primarily
a disarmament agreement, the Treaty prohibits all military activities
on the continent and specifically bans the testing and stationing of
nuclear weapons in the region. It should be mentioned, however,
that no contracting power, including the Soviet Union and the
United States, was, prior to the signing of the Treaty, engaged in
No. 4]
BOOK REVIEWS
any of the activities now banned by it. In other words, the acceptance
of the Treaty did not affect the current arms race.
Of far greater immediate relevance was the Moscow Limited
Test Ban Treaty of 1963, which terminated, for the signatory
parties, all nuclear tests in the atmosphere, under water and in
outer space. The Moscow Treaty does not, however, cover nuclear
weapons tests underground and, since its conclusion, both the Soviet
Union and the United States have carried out numerous such tests,
including some in or near the megaton range. Although more than
100 countries have adhered to this Treaty, two out of the present five
nuclear states are still outside its ambit – France and the People’s
Republic of China –
and they continue testing in the environments
prohibited by the Treaty.
With the signing of the Outer Space Treaty on January 27, 1967,
another dimension of the arms race was partially closed. Parties to
the Treaty have agreed “not to place in orbit around the Earth
any objects carrying nuclear weapons or any other kinds of weapons
of mass destruction, install such weapons on celestial bodies, or
station such weapons in outer space in any other manner.” (Art.
IV, para. 1). Following the precedent of the Antarctic Treaty, the
Outer Space Treaty also bans the establishment of military bases,
installations and fortifications, the testing of any type of weapons
and the conduct of military maneuvers on celestial bodies. (Art. IV,
para. 2). It is worth noting, again, that, as far as it is known, these
prohibitions did not affect any existing or presently planned military
activities in outer space; the agreed ban, as in the case of Antarctica,
is future-oriented. Predictably, the Treaty contains no provisions
aimed at outlawing or reducing current military uses of outer space
such as the employment of artificial satellites for reconnaissance,
targeting and communications. Indeed, not long before the conclusion
of this Treaty the government of the United States decided to
proceed with the development of the so-called Manned Orbiting
Laboratory (MOL), an experimental spacecraft designed to carry
up to ten astronauts in terrestrial orbit for several weeks for the
purpose of investigating the military usefulness of man in outer
space. The work on this project was not terminated following the
entry into force of the Outer Space Treaty (October 10, 1967) and
there are strong indications that the planned Soviet orbital space
stations may have the same objectives as the American MOL.
In Mexico City on February 14 of the same year, 14 Latin
American countries signed the Treaty for the Prohibition of Nuclear
Weapons in Latin America (Treaty of Tlatelolco). This regional
arms control agreement, designed primarily as a protection against
McGILL LAW JOURNAL
[VCol. 14
the present nuclear powers, has not been signed by any of them.
The United States did, however, on April 1, 1968, sign Protocol II
to the Treaty, which calls upon the states possessing nuclear weapons
to respect the regime of denuclearization in Latin America, not to
contribute to violations of the basic provisions of the Treaty, and
not to use or threaten to use nuclear weapons against nations parties
to the Treaty.’ The Treaty of Tlatelolco,
in common with the
Antarctic Treaty and Outer Space Treaty, did not result in any
degree of disarmament nor did its provisions impose any immediate
restraints upon the existing military activities of the world’s principal
powers. Its main objective is the prevention of future nuclearization
of Latin America.
The latest in this series of modest measures to control the arms
race is the Treaty on Non-proliferation of Nuclear Weapons which
was opened for signature on July 1, 1968 in Washington, London
and Moscow.2 The Treaty will enter into force when ratified by the
three depositary states –
the United States, the United Kingdom
and the Soviet Union –
and forty other signatory states. As of
February 25, 1969, the Treaty had been signed by 87 nations, but
ratified by only nine, including the United Kingdom.3 The basic
purpose of the Non-proliferation Treaty is to prevent the spread
of nuclear weapons and other nuclear explosive devices to the
nations which did not possess them at the time of the signing of
the Treaty. The Treaty not only forbids transfers of nuclear weapons
to non-nuclear states but it also reinforces the prohibition by barring
the latter from receiving such weapons from any source, from
manufacturing or otherwise acquiring them, and from seeking or
receiving any assistance in their manufacture. Since these under-
takings, accompanied by international inspection, present a serious
limitation on the sovereignty of non-nuclear signatories, the nuclear
powers have, under the Treaty, assumed the obligation to assist the
peaceful nuclear development of non-nuclear weapon states at the
lowest possible cost and on a non-discriminatory basis. In addition, all
parties to the Treaty have undertaken to pursue negotiations, in
good faith, first, on effective measures relating to cessation of the
nuclear arms race at an early date and to nuclear disarmament
and, second, on a treaty on general and complete disarmament under
strict and effective international control (Article VI). However, this
is more an expression of intent than a firm obligation; the Treaty
itself contains no explicit commitment on the part of nuclear powers
158 Dep’t State Bull. 555 (April 29, 1968).
2 For text of the Treaty, see 59. Dep’t State Bull. 9 (July 1, 1968).
3 New York Times, Feb. 26, 1969, p. 1, col. 7.
No. 4]
BOOK REVIEWS
either to stop the manufacture of nuclear weapons or to start
reducing their stockpiles.
though not all –
The above survey clearly illustrates that, even with the imple-
mentation of the Non-proliferation Treaty, the sum total of arms
control measures agreed upon by states will remain extremely limited,
far from the acknowledged target of general and complete disarma-
ment. The extent of progress to date can best be appraised by
summarizing the arms limitation obligations assumed by virtue
of treaties already in force by some –
of the
principal military powers. As of March 1, 1969, these obligations
are: (1) not to carry out nuclear tests in the atmosphere, in the
oceans, or in outer space; (2) not to place weapons of mass destruction
in orbit around the earth, on the moon or any other celestial body,
anywhere else in outer space, or in Antarctica; (3) not to conduct in
Antarctica any activities of a military nature, such as the establish-
ment of military bases, the carrying out of military maneuvers, or the
testing of any kind of weapons. It will be readily noted that these
obligations impose no serious limitations on either the traditional
fields of arms competition (ground, sea and air armaments) or the
modern strategic nuclear-space weapons. 4 The catalogue of arms
control measures which, in the opinion of many knowledgeable
observers, urgently require agreement is far longer than the list
of accomplishments. Such a catalogue would include, in addition
to a comprehensive nuclear test ban, a cut-off on the production of
fissionable materials for weapons; the halting of the strategic missile
arms race (embracing both offensive and defensive missiles) ; a ban
on the production and use of chemical and bacteriological weapons;
demilitarization of the ocean floor and subsoil; the curbing of the
further militarization of outer space in the vicinity of our planet,
and, of course, a gradual reduction in conventional forces.
Although they pay frequent lip-service to the goal of disarmament,
few governments practise what they preach. Military budgets of
most nations, especially those of the United States and the Soviet
Union, are steadily increasing rather than decreasing. Furthermore,
a number of underdeveloped states have joined the arms race –
a
luxury they can ill afford –
thus compounding the already complex
problem of arms control. Whereas the global military expenditures
for 1962 were estimated at approximately $120 billion, the estimate
the Non-proliferation Treaty, upon
4 But even these obligations can be done away with, under the Moscow Treaty
and
three months notice whenever a
contraeting party decides that extraordinary events related to the subject
matter of these treaties have jeopardized its “supreme interests.” Moscow Treaty,
Article IV; Non-proliferation Treaty, Article X.
McGILL LAW JOURNAL
[Vol. 14
for 1967 has risen to 182 billion. 5 Preliminary data for 1968 indicate
a continued upswing. In the two decades since the end of World
War II, the United States alone has spent about, a trillion dollars
on defence, and its military budget in 1967 equalled the total GNP
of all of Latin America.0 The futility and wastefulness of the arms
race were aptly described by former President L. B. Johnson in his
last message to the 18-Nation Committee on Disarmament when
he remarked: “Resources continue to be diverted from critical human
needs to the acquisition of armaments and the maintenance of
military establishments that in themselves feed fears and create
insecurity among nations.” ft While the nuclear powers have succeeded
in accumulating the equivalent of thirty thousand pounds of TNT
for every man, woman and child in the world, they have somehow
forgotten to make available thirty thousand pounds of food or
medicines, or of clothes or books for every needy person in the world.
One of the great obstacles to any major arms reduction or arms
control scheme has been the problem of inspection, namely, the
effective verification of compliance by all the parties with the agreed
disarmament measures. For many years now the Soviet Union has
been claiming that the West wants inspection without disarmament,
while the Western states have been accusing the Soviets of wanting
disarmament without inspection. The only area where these powers
have thus far been able to agree on an effective inspection system
is in the demilitarized Antarctic. Somewhat weaker
inspection
procedures have been incorporated in the Space Treaty; however,
these procedures apply only to activities conducted on celestial bodies
(which lie in the indefinite future) and not to activities in the
“void” of outer space. The international safeguards provided in the
Non-proliferation Treaty, contrary to the wishes of many states,
apply neither to the military nor to the peaceful nuclear facilities
of the nuclear-weapon states; the obligation to submit to international
inspection under this Treaty is limited to the signatories not possess-
ing nuclear weapons. To complete the picture, it should also be
mentioned that the principal reason given for the absence of
agreement on a total nuclear test ban is the inability of the two super-
powers to find mutually acceptable methods of verification. 7
5 The New Republic, Feb. 22, 1969, p. 22, quoting from the 1968 annual
report of the U.S. Arms Control and Disarmament Agency.
6 Rusk, The Political Future of the Family of Man, 57 Dep’t State Bull.
735, at p. 738 (December 4, 1967).
Ca 59 Dep’t of State Bull. 137, at p. 138 (August 5, 1968).
7 For a recent statement on the outlook for a comprehensive test ban, see
Foster, U.S. Proposes Worldwide Seismic Investigation of Underground Nuclear
Explosions, 60 Dep’t State Bull. 58 (January 20, 1969).
No. 4]
BOOK REVIEWS
While it is quite probable that the inspection issue has on occasion
been used to delay agreement on various disarmament proposals,
there can be no doubt that a regime of adequate inspection is
absolutely vital to any major disarmament scheme. Even the most
ardent advocates of disarmament agree on that point. Yet there
are tremendous difficulties in devising an inspection system which
will provide satisfactory safeguards against clandestine violations
of the agreed arms control measures and, ‘at the same time, prove
acceptable to all the negotiating parties.
The current arms race has brought about a number of develop-
ments which greatly aggravate the task of implementing a viable
system of detection. Take, for example, achievements in the efforts
to reduce the size of certain lethal instruments of violence. The
weapons arsenal of both superpowers today includes many nuclear
projectiles capable of being fired from standard artillery pieces.
It has been reported that there are even nuclear weapons capable
of being carried and fired by a single infantryman. To conceal these
weapons would obviously present no great difficulty. Admittedly,
two or three such projectiles could not destroy a large city or a
major military unit, but a sufficient quantity of hidden small nuclear
explosives could, in conditions of disarmament, conceivably be the
margin of victory in an otherwise conventionally fought war.
recent developments
One should also take into account
in
bacteriological and chemical weapons which are increasingly regarded
by experts as potentially more dangerous than nuclear weapons. s
Both the Soviet and Western proposals for general and complete
disarmament agree that the BC weapons should be subject
to
international control. But the problem of devising a reasonably
effective system of safeguards to insure against their concealment,
secret manufacture and use appears virtually insurmountable. First,
several nations have already accumulated biological and chemical
weapons in sufficient amounts to annihilate all living beings on the
earth many times over.9 Even a minute portion of this arsenal that
8 See, e.g., U.N. General Assembly resolution 2454 (A) (XXIII) of December
20, 1968, on the “Question of General and Complete Disarmament.” The
resolution expressed concern over the potential threat to mankind posed by
the development and possible use of chemical and bacteriological weapons.
) For some years now the defence establishments of major powers have
been channeling growing amounts of funds into the development of BC weapons.
While the exact expenditures are kept secret, a recent congressional testimony
revealed that the U.S. military services were spending around $350 million
annually on chemical and biological warfare. New York Times, March 5,
1969, p. 1, col. 6.
McGILL LAW JOURNAL
[Vol. 14
in non-military
has escaped detection could provide the violator-state with a winning
margin against its adversary. Second, to further compound the
problem, the potential user of BC weapons would have at its disposal
many effective delivery systems, including the proverbial “man with
a briefcase” packing enough toxic bacteria to wipe out every in-
habitant of Moscow or New York. Third, BC weapons could easily be
manufactured
laboratories and other
facilities normally not associated with arms production. To cope
with this possibility, it has been suggested that an effective inspection
system would have to provide for “registration of scientific personnel,
accounting of materials, fiscal controls, and visits to conceivable
production and testing facilities.” 10 But even these measures might
not guarantee adequate protection against government-inspired or
private cheating. Massive intelligence activity, “internationalization
of the microbiological profession”, and “awards for disclosure of
military preparations contrary to international agreement” would
possibly have to be made part of the effort.”
research
Then there is the related vexing problem of how to control
modern nuclear-space technology that can, with minor modifications,
serve both military and non-military purposes. In a statement relating
to the Latin-American Denuclearization Treaty, the U.S. government
called attention to the “fact that the technology of making nuclear
explosive devices for peaceful purposes is indistinguishable from the
technology of making nuclear weapons and the fact that nuclear
weapons and nuclear explosive devices for peaceful purposes are both
capable of releasing nuclear energy in an uncontrolled manner and
have the common group characteristics of large amounts of energy
generated instantaneously from a compact source.” 12 Space techno-
logy presents comparable difficulties. There is, for example, the
problem of preventing the conversion of non-military space projects
into military projects. To assure compliance with the disarmament
agreement, a U.S. arms control study group has proposed that the
space powers use a single international launch site and that shipment
of rocket materials toward any other destinatian be treated as a
probable treaty violation.’3
10 C.-G. Hed~n, The Infectious Dust Cloud, in Unless Peace Comes, ed. by
N. Calder, (New York, 1968), 147, at p. 102.
“Ibid., at p. 163.
12 58 Dep’t State Bull. 555, at p. 556 (April 29, 1968).
3 Hawkes, Public Will Be Unwilling to Buy Costly Arms Inslyection System,
15 Missiles & Rockets 22 (July 1, 1964). The study group was set up at the
Jet Propulsion Laboratory to advise NASA and other concerned U.S. government
agencies. For an official American view on the verification measures to assure
compliance with proposed freeze of strategic nuclear delivery vehicles, see the
No. 4]
BOOK REVIEWS
Thus, it is fairly certain that the cost of a full-scale international
arms control inspection system which would provide states with a
reasonable degree of protection against clandestine violations of a
comprehensive disarmament agreement might easily rival in cost
the present defence establishments.
When nations decide to seriously begin negotiations leading to
the setting-up of an inspection system within a major arms reduction
plan, they will of necessity have to examine not only their defence
establishments but also the whole legal, political and social structure
of each participating country. The book by Professors Berman and
Maggs on Disarmament Inspection Under Soviet Law represents a
pioneering effort in that direction. 14 Their work illustrates what
international arms inspectors could and could not do under conditions
existing at the time of writing. The original contribution of the book
is divided, like ancient Gaul, into three parts. The first and the
shortest part provides the reader with information regarding certain
basic aspects of Soviet legal and political milieus of particular
importance to arms inspection. The second part of the volume,
entitled “Privileges and Immunities of the Inspectorate”, canvasses
the relevant Soviet regulations applicable to foreigners and Soviet
citizens. Not surprisingly, the writers conclude that the immunities
and privileges essential to the inspectors would have to be significant-
ly greater than those currently enjoyed in the USSR by foreign
diplomats, let alone Soviet nationals.
The third and most interesting part of the book focuses upon
the variety of legal problems which would likely be encountered by
arms inspectors in the performance of their functions on Soviet
territory. The range of problems discussed in this part can best be
illustrated by quoting from the authors’ own introduction: “would
Soviet law compel the [Soviet] official [suspected of possessing
to answer
information relevant to the purpose of inspection]
questions? What are the penalties under Soviet law for refusal to
answer? Could the inspectors go to the official’s house and tear it
apart to find secret documents? Could they give him a lie detector
test, or question him at night under a bright light? … Could the
inspectors dig up a graveyard to find out if atomic weapons are
hidden under it? … Suppose they [inspectors] accidentally came
statement by Ambassador Clare H. Timberlake in 51 Dep’t State Bull. 413
(September 21, 1964).
14 Almost a decade earlier, Professor Louis Henkin published a comparable
study on the problems that would be encountered by international inspectors
under American law. Arms Control and Inspection in American Law, (New
York, 1958).
McGILL LAW JOURNAL
[Vol. 14
across classified information having no bearing on arms control
or disarmament: could they divulge such information without violat-
ing Soviet criminal law?” 15
The Berman-Maggs analysis stimulates speculation about the
practical problems that would face the Soviet Union and the United
States should these countries, in the foreseeable future, agree on a
major disarmament program which would involve a significant degree
of on-site verification. There can be no doubt that today the USSR
would find it immeasurably easier than the United States both to
adapt its laws and to secure the acquiescence of its citizens to the
requirements of international inspection. Soviet citizens are accustom-
ed
to a comprehensive, virtually all-embracing, governmental
surveillance and to the absolute primacy of the Union’s interests over
any individual interest or right. No matter what the Soviet consti-
tution or Soviet statutes prescribe, the fact remains that in the
USSR –
as was to an important extent the case in pre-revolutionary
Russia –
the right to privacy is not a guaranteed freedom, Article
128 of the Soviet Constitution notwithstanding. Ironically, with the
progressive democratization of Soviet life, the task of an international
arms inspection on Soviet territory may become more onerous.
There are many indications, despite occasional setbacks, that the
Soviet Union is gradually developing greater respect for the rights
of its citizens, including respect for the sanctity of the person and
his private home. By the time a major arms inspection program is
agreed upon, the Soviet citizen, like his American counterpart, may
come to regard his home as a castle and refuse to have it invaded
by any intruder, national or international.
to arms inspection
The authors of this book have wisely incorporated
in their
volume the full text of, or excerpts from, sixteen legal documents of
direct relevance
in the Soviet Union. The
documentation is a most helpful addition to the original contribution;
however, it would be unjust to the authors to convey the impression
that their work can be of interest only to those concerned with
disarmament. As Professors Berman and Maggs rightly emphasize,
“a study of the problems of inspection under Soviet law has both
practical and theoretical value, because it brings into a focus the
entire Soviet system of rules and procedures applicable to foreign
presence in Soviet territory.” 16 It follows that any student of the
political and legal system of the USSR will profit from this excellent
yet compact study.
: P. vi.
16 p. vii.
No. 4]
BOOK REVIEWS
What are the future prospects for a meaningful disarmament
agreement? All indications point to the conclusion that there will
be no major changes in the attitudes of states until revulsion against
the arms race and against international violence becomes an integral
part of our ethical and moral standards and the advocacy of such
violence comes to be regarded as a common crime, not unlike the
advocacy of armed robbery. Nor will a system of arms inspection,
no matter how comprehensive and how ingeniously organized, ever
be foolproof unless there first exists a climate of mutual understand-
ing and respect, and a widespread desire for disarmament among
both the ordinary citizens and a significant segment of the elite
of the superpowers. Only when these conditions are achieved will
the prospects for a truly disarmed world look encouraging. Hence,
what is urgently needed are statesmen with vision, whose essential
dedication is not to the aggrandizement of their national communities
but rather to the whole family of mankind. These qualities are
patently absent in most contemporary men of politics.
Postscript
Since the completion of this review, the President of the United
to begin
States, on March 14, 1969, announced his decision
deployment of the “Safeguard” (formerly “Sentinel”) anti-ballistic
missile (ABM) system. If carried out, the President’s decision is
bound to have far-reaching effects on the future course both of the
arms race and disarmament negotiations, as well as on the viability
of existing arms control agreements.
Given the present questionable efficacy of the ABMs and the
unquestioned superiority of offensive strategic weapons over the
defensive ones, the Safeguard program is likely to precipitate another
massive escalation in the nuclear arms race, matching if not exceeding
the ICBM competition of the late fifties and the early sixties.
As the New York Times noted, a major reason for the President’s
action was “the installation of 67 ABMs around Moscow, weapons
the Pentagon recognizes as already obsolete. The planned American
response involves more than 700 antimissile missiles and, through
the use of MIRV multiple warheads, a probable fivefold increase
in offensive delivery vehicles from 1,700 to more than 8,000.” 17
There can be no doubt that both sides will renew their efforts to
the anti-ballistic
perfect offensive weapons which will provide
defences with little or no time for interception. In pursuit of this
17 March 17, 1969, p. 34, col. 2.
McGILL LAW JOURNAL
[Vol. 14
goal, it is also conceivable that increasing attention will be given by
the military to the possibilities of using outer space for offensive
purposes, e.g., for stationing in orbit weapons of mass destruction.
Such measures would, in turn, call for the deployment of anti-
satellite satellites, and so on ad absurdum.
These developments cannot but adversely affect the prospects
for disarmament, despite the assurances voiced by the ABM advocates
that the existence of an anti-missile system would make disarmament
negotiations easier by improving the stability in relations between
the two superpowers. If the installation of the ABM defences
were part of an agreed arms control plan, carefully prepared by
the Soviet Union and the United States, such a step might indeed
eventually lead to some measures of arms reduction. But under the
present conditions of uncontrolled arms race, the most likely outcome
of the Safeguard decision will be to increase the distrust between
these two adversaries, and also between them and the rest of the
international community. Furthermore, as past experience demon-
strates, once a substantial investment has been made in a new
weapon system –
and the cost of the Safeguard could be anywhere
it is here to stay. In all the history
from $7 billion to $400 billion –
of disarmament negotiations, not a single weapon system has been
eliminated from the arsenal of major states as a result of such
negotiations. The deployment of the ABM network will inevitably
complicate the already complex arms control talks and therefore make
agreement that much more difficult.
Of particular concern is the potential effect of the Safeguard
decision on disarmament agreements already in force or about to
enter into force. A new round in the arms race involving strategic
nuclear weapons might place the Moscow Test Ban Treaty and the
Outer Space Treaty in jeopardy. On the one hand, the necessity to
test the anti-ballistic missiles in the medium where they are supposed
to operate, i.e., at high altitudes, could spell the end of the test ban;
on the other hand, the urge to develop ABM-immune spaceborne
weapons (e.g., “bombs in orbit”) could result in the violation of the
specific prohibitions contained in the Outer Space Treaty. However,
it is the still inoperative Non-proliferation Treaty that may become
the first casualty of the Safeguard. A number of states have been
induced into signing the Treaty only after receving assurances from
the principal nuclear powers that they will in good faith pursue
negotiations leading to nuclear disarmament. To underscore the
seriousness of their promise, the United States and the USSR agreed,
on July 1, 1969, to begin discussions in the near future on the
limitation and reduction of both offensive strategic nuclear weapons
No. 4]
BOOK REVIEWS
delivery systems and systems of defence against ballistic missiles.
The talks were, however, indefinitely postponed as a result of the
Soviet intervention in Czechoslovakia. Many states, especially po-
tential nuclear-weapons states, which have so far been reluctant to
sign or ratify the treaty, can be expected to be even more reluctant
to do so now that the two superpowers seem to be further escalating
the nuclear arms race.
Should the Soviet Union and the United States proceed with the
deployment of the ABM installations, the world community may have
lost the last chance to revert the trend in the nuclear arms race.
Fortunately, as neither side appears at this time to be irrevocably
committed to this course, there is still a glimmer of hope that they
could be persuaded to refrain from further expanding their overkill
capabilities. Particular responsibility for bringing about such a
change falls upon states participating in the 18-Nation Committee
on Disarmament, of which Canada is a member. They should without
delay or equivocation remind the two superpowers of their freely
given promise to urgently enter into bilateral negotiations on the
limitation and reduction or armaments, including the ABM weapons.
The response to this reminder by the United States and the USSR
will provide a critical test of how these countries view their obli-
gations towards international agreements and towards the main-
tenance of peace and security in the world community.
Ivan A. VLAsic*
* Professor, Faculty of Law, McGill University.
