Topic I. METHOD.
Section I. (a) General Considerations.
SOCRATES, dealing in the Meno with the teachability of virtue,
sends for one of Meno's slaves, to prove by him the possibility of
absolutely certain a priori knowledge. The slave is to determine the
length of a rectangle, the contents of which is twice that of one
measuring two feet; but he is to have no previous knowledge of the
matter, and is not to be directly coached by Socrates. He is to
discover the answer for himself. Actually the slave first gives out
an incorrect answer. He answers that the length of a rectangle
having twice the area of the one mentioned is four feet, thinking
that the length doubles with the area. Thereupon Socrates triumphantly
points out to Meno that the slave does as a matter of
fact not yet quite know the truth under consideration, but that he
really thinks he knows it; and then Socrates, in his own Socratic
way, leads the slave to the correct solution. This very significant
procedure of the philosopher is cited by
Guggenheim[1] as an
illustration of the essence of a priori knowledge, and when we properly
consider what we have to do with a witness who has to relate
any fact, we may see in the Socratic method the simplest example
of our task. We must never forget that the majority of mankind
dealing with any subject whatever always believe that they know and
repeat the truth, and even when they say doubtfully: "I believe.—
It seems to me," there is, in this tentativeness, more meant than
meets the ear. When anybody says: "I believe that—" it merely
means that he intends to insure himself against the event of being
contradicted by better informed persons; but he certainly has not
the doubt his expression indicates. When, however, the report of
some bare fact is in question ("It rained," "It was 9 o'clock,"
"His beard was brown," or "It was 8 o'clock,") it does not matter
to the narrator, and if he imparts
such facts with
the introduction,
"I believe," then he was really uncertain. The matter becomes
important only where the issue involves partly-concealed observations,
conclusions and judgments. In such cases another factor
enters—conceit; what the witness asserts he is fairly certain of
just because he asserts it, and all the "I believes," "Perhapses,"
and "It seemeds," are merely insurance against all accidents.
Generally statements are made without such reservations and,
even if the matter is not long certain, with full assurance. What
thus holds of the daily life, holds also, and more intensely, of
court-witnesses, particularly in crucial matters. Anybody experienced
in their conduct comes to be absolutely convinced that witnesses
do not know what they know. A series of assertions are made
with utter certainty. Yet when these are successively subjected to
closer examinations, tested for their ground and source, only a very
small portion can be retained unaltered. Of course, one may here
overshoot the mark. It often happens, even in the routine of daily
life, that a man may be made to feel shaky in his most absolute
convictions, by means of an energetic attack and searching questions.
Conscientious and sanguine people are particularly easy subjects
of such doubts. Somebody narrates an event; questioning begins
as to the indubitability of the fact, as to the exclusion of possible
deception; the narrator becomes uncertain, he recalls that, because
of a lively imagination, he has already believed himself to have
seen things otherwise than they actually were, and finally he admits
that the matter might probably have been different. During trials
this is still more frequent. The circumstance of being in court of
itself excites most people; the consciousness that one's statement is,
or may be, of great significance increases the excitement; and the
authoritative character of the official subdues very many people
to conform their opinions to his. What wonder then, that however
much a man may be convinced of the correctness of his evidence,
he may yet fail in the face of the doubting judge to know anything
certainly?
Now one of the most difficult tasks of the criminalist is to hit,
in just such cases, upon the truth; neither to accept the testimony
blindly and uncritically; nor to render the witness, who otherwise
is telling the truth, vacillating and doubtful. But it is still more
difficult to lead the witness, who is not intentionally falsifying, but
has merely observed incorrectly or has made false conclusions, to a
statement of the truth as Socrates leads the slave in the Meno.
It is as modern as it is comfortable to assert that this is not the
judge's business—that the witness is to depose, his evidence is to
be accepted, and the judge is to judge. Yet it is supposed before
everything else that the duty of the court is to establish the material
truth—that the formal truth is insufficient. Moreover, if we notice
false observations and let them by, then, under certain circumstance,
we are minus one important piece
of evidence
proand
con,
and the whole case may be turned topsy turvy. At the very least
a basis of development in the presentation of evidence is so excluded.
We shall, then, proceed in the Socratic fashion. But, inasmuch as
we are not concerned with mathematics, and are hence more badly
placed in the matter of proof, we shall have to proceed more cautiously
and with less certainty, than when the question is merely
one of the area of a square. On the one hand we know only in the
rarest cases that we are not ourselves mistaken, so that we must
not, without anything further, lead another to agree with us; on
the other hand we must beware of perverting the witness from his
possibly sound opinions. It is not desirable to speak of suggestion
in this matter, since, if I believe that the other fellow knows a matter
better than I and conform to his opinion, there is as yet no suggestion.
And this pure form of change of opinion and of openness to
conviction is commonest among us. Whoever is able to correct
the witness's apparently false conceptions and to lead him to discover
his error of his own accord and then to speak the truth—
whoever can do this and yet does not go too far, deducing from the
facts nothing that does not actually follow from them—that man
is a master among us.
[[1]]
M. Guggenheim: Die Lehre vom
aprioristischen Wissen. Berlin 1885.
Section 2. (b) The Method of Natural
Science.[1]
If now we ask how we are to plan our work, what method we are
to follow, we must agree that to establish scientifically the principles
of our discipline alone is not sufficient. If we are to make progress,
the daily routine also must be scientifically administered. Every
sentence, every investigation, every official act must satisfy the same
demand as that made of the entire juristic science. In this way only
can we rise above the mere workaday world of manual labor, with
its sense-dulling disgust, its vexatious monotony, and its frightful
menace against law and justice. While jurists merely studied the
language of dead laws, expounding them with effort unceasing, and,
one may complain, propounding more, we must have despaired of
ever being scientific. And this because law as a science painfully
sought justification in deduction from long obsolete norms and in
the explanation of texts. To jurisprudence was left only the empty
shell, and a man like
Ihering
[2] spoke of a "circus for
dialectico-acrobatic tricks."
Yet the scientific quality is right to hand. We need only to take
hold of the method, that for nearly a century has shown itself to
us the most helpful. Since Warnkönig
(1819)[3] told us, "Jurisprudence
must become a natural science," men have rung changes upon
this battle cry (cf. Spitzer[4]).
And even if, because misunderstood,
it led in some directions wrongly, it does seem as if a genuinely
scientific direction might be given to our doctrines and their application.
We know very well that we may not hurry. Wherever people
delayed in establishing the right thing and then suddenly tried for
it, they went in their haste too far. This is apparent not only in
the situations of life; it is visible, in the very recent hasty conclusions
of the Lombrosists, in their very good, but inadequate observations,
and unjustified and strained inferences. We are not to figure the
scientific method from these.[5] It
is for us to gather facts and to
study them. The drawing of inferences we may leave to our more
fortunate successors. But in the daily routine we may vary this
procedure a little. We draw
there particularinferences from correct
and simple observations. "From facts to ideas," says
Öttingen.[6]
"The world has for several millenniums tried to subdue matter to
preconceptions and the world has failed. Now the procedure is
reversed." "From facts to ideas"—there lies our road, let us
for once observe the facts of life without prejudice, without maxims
built on preconceptions; let us establish them, strip them of all
alien character. Then finally, when we find nothing more in the
least doubtful, we may theorize about them, and draw inferences,
modestly and with caution.
Every fundamental investigation must first of all establish the
nature of its subject matter. This is the maxim of a book, "Über
die Dummheit"
[7] (1886),
one of the wisest ever written. The same
axiomatic proposition must dominate every legal task, but especially
every task of criminal law. It is possible to read thousands upon
thousands of testimonies and to make again this identical, fatiguing,
contrary observation: The two, witness and judge, have not defined
the nature of this subject; they have not determined what they
wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been
established, the one did not know and the other did not tell him.
But the blame for this defective formulation does not rest with the
witness—formulation was the other man's business.
When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[8] I
believe, has for our purpose
defined it best. It consists in trying to keep constant the complex
of conditions demonstrated to be necessary for the realization of a
given effect. It consists in varying these conditions, in isolating one
from the other in a numerically determinable order, and finally,
in establishing the accompanying changes with regard to the effect,
in a quantified or countable order.
I can not here say anything further to show that this is the sole
correct method of establishing the necessary principles of our science.
The aim is only to test the practicality of this method in the routine
of a criminal case, and to see if it is not, indeed, the only one by
which to attain complete and indubitable results. If it is, it must
be of use not only during the whole trial—not
only in the testing
of collected evidence, but also in the testing of every individual
portion thereof, analyzed into its component elements.
Let us first consider the whole trial.
The effect is here the evidence of A's
guilt. The complex conditions
for its establishment are the collective instruments in getting
evidence; the individual conditions are to be established by means
of the individual sources of evidence—testimony of witnesses,
examination of the premises, obduction, protocol, etc.
The constantification of conditions now consists in
standardizing
the present instance, thus: Whenever similar circumstances are
given, i. e.: the same instruments of evidence are present, the evidence
of guilt is established. Now the accompanying changes with
regard to the effect, i. e.: proof of guilt through evidence, have to
be tested—therefore the individual conditions—i.e.: the individual
sources of evidence have to be established and their values
to be determined and
varied. Finally, the
accompanying change in
effect (conviction by evidence) is to be tested. The last procedure
requires discussion; the rest is self evident. In our business isolation
is comparatively easy, inasmuch as any individual statement, any
visual impression, any effect, etc., may be abstracted without difficulty.
Much harder is the determination of its value. If, however,
we clearly recognize that it is necessary to express the exact value
of each particular source of evidence, and that the task is only to
determine comparative valuation, the possibility of such a thing, in
at least a sufficiently close degree of certainty, must be granted.
The valuation must be made in respect of two things—(1) its
reliability (subjective and relative); (2) its
significance (objective and
absolute). On the one hand, the value of the evidence itself must
be tested according to the appraisement of the person who presents
it and of the conditions under which he is important; on the other,
what influence evidence accepted as reliable can exercise upon the
effect, considered in and for itself. So then,
when a testimony is
being considered, it must first be determined whether the witness
was able and willing to speak the truth, and further, what the importance
of the testimony may be in terms of the changes it may
cause in the
organization of the case.
Of greatest importance and most difficult is the variation of
conditions and the establishment of the changes thereby generated,
with regard to the effect,—i. e.: the critical
interpretation of the
material in hand. Applied to a case, the problem presents itself
in this wise: I consider each detail of evidence by itself and cleared
of all others, and I vary it as often as it is objectively possible to do
so. Thus I suppose that each statement of the witness might be a
lie, entirely or in part; it might be incorrect observation, false
inference, etc.—and then I ask myself: Does the evidence of guilt,
the establishment of an especial trial, now remain just? If not, is
it just under other and related possible circumstances? Am I in
possession of these circumstances? If now the degree of apparent
truth is so far tested that these variations may enter and the accusation
still remain just, the defendant is convicted: but only under
these circumstances.
The same procedure here required for the conduct of a complete
trial, is to be followed also, in miniature, in the production
of particulars of evidence. Let us again construe an instance.
The
effect now is the establishment of the
objective correctness
of some particular point (made by statements of witnesses, looks,
etc.). The
complex of conditions consists in the
collection of these
influences which might render doubtful the correctness—i. e.,
dishonesty of witnesses, defective examination of locality, unreliability
of the object, ignorance of experts, etc. It is necessary
to know clearly which of these influences might be potent in the
case in hand, and to what degree. The
standardization consists,
also this time, in the comparison of the conditions of the present
case with those of other cases. The
variation,
again, consists in the
abstraction from the evidence of those details which might possibly
be incorrect, thus correcting it, from various points of view, and
finally, in observing the
effect as it defines
itself under this variety
of formulation.
This procedure, adopted in the preparation and judgment of
each new piece of evidence, excludes error as far as our means
conceivably permit. Only one thing more is needful—a narrow and
minute research into that order of succession which is of
indispensable importance in every natural science. "Of all truths
concerning natural phenomena, those which deal with the order of
succession are for us the most important. Upon a knowledge of
them is grounded every intelligent anticipation of the future" (J.
S. Mill).[9] The
oversight of this doctrine is the largest cause of our
failures. We must, in the determination of evidence, cleave to it.
Whenever the question of influence upon the "
effect" is raised, the
problem of order is found invariably the most important. Mistakes
and impossibilities are in the main discovered only when the examination
of the order of succession has been undertaken.
In short: We have confined ourselves long enough to the mere
study of our legal canons. We now set out upon an exact consideration
of their material. To do this, obviously demands a retreat to
the starting-point and a beginning we ought to have made long ago;
but natural sciences, on which we model ourselves, have had to do
the identical thing and are now at it openly and honestly. Ancient
medicine looked first of all for the universal panacea and boiled
theriac; contemporary medicine dissects, uses the microscope, and
experiments, recognizes no panacea, accepts barely a few specifics.
Modern medicine has seen the mistake. But we lawyers boil our
theriac even nowadays and regard the most important study, the
study of reality, with arrogance.
[[1]]
Cf. H. Gross's Archiv VI, 328 and VIII, 84.
[[2]]
R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.
[[3]]
Warnkonig. Versuch einer Begründung des Rechtes. Bonn 1819.
[[4]]
H. Spitzer: Über das Verhältnis der Philosophie zu den
organischen
Naturwissenschaften. Leipzig 1883.
[[5]]
Cf. Gross's Archiv VIII 89.
[[6]]
A. v. Öttingen: Moralstatistik. Erlangen 1882.
[[7]]
Erdmann Über die Dummheit. 1886.
[[8]]
Ebbinghaus: Über das Gedächtniss. Leipzig 1885.
[[9]]
J. S. Mill: System of Logic.