University of Virginia Library

Section 34.

Criminal law, like all other disciplines, must ask under what conditions and when we are entitled to say "we know." The answer is far from being perennially identical, though it might have been expected that the conviction of knowledge would be ever united with identical conditions. The strange and significant difference is determined by the question whether the verdict, "we know," will or will not have practical consequences. When we discuss some question like the place of a certain battle, the temperature of the moon, or the appearance of a certain animal in the Pliocene, we first assume that there is a true answer; reasons for and against will appear, the former increase in number, and suddenly we discover in some book the assurance that, "We know the fact." That assurance passes into so and so many other books; and if it is untrue, no essential harm can be done.

But when science is trying to determine the quality of some substance, the therapeutic efficiency of some poison, the possibilities of some medium of communication, the applicability of some great national economic principle like free trade, then it takes much more time to announce, "We know that this is so and not otherwise." In this case one sees clearly that tremendous consequences follow on the practical interpretation of "we know," and therefore there is in these cases quite a different taxation of knowledge from that in cases where the practical consequences are comparatively negligible.

Our work is obviously one of concrete practical consequences. It contains, moreover, conditions that make imperfect knowledge equivalent to complete ignorance, for in delivering sentence every "no" may each time mean, "We know that he has not done it" or again, "We know that it is not altogether certain that he has done it." Our knowledge in such cases is limited to the recognition of the confusion of the subject, and knowledge in its widest sense is the consciousness of some definite content; in this case, confusion. Here, as everywhere, knowledge is not identical with truth; knowledge is only subjective truth. Whoever knows, has reasons for considering things true and none against so considering them. Here, he is entitled to assume that all who recognize his knowledge will justify it. But, when even everybody justifies his knowledge, it can be justified only in its immediacy; to-morrow the whole affair may look different. For this reason we criminalists assert much less than other investigators that we seek the truth; if we presume to such an assertion, we should not have the institutions of equity, revision, and, in criminal procedure, retrial. Our knowledge, when named modestly, is only the innermost conviction that some matter is so and so according to human capacity, and "such and such a condition of things." Parenthetically, we agree that "such and such a condition of things" may alter with every instant and we declare ourselves ready to study the matter anew if the conditions change. We demand material, but relative truth.

One of the acutest thinkers, J. R. von Mayer, the discoverer of the working principle of "conservation of energy," says, "the most important, if not the only rule for real natural science is this: Always to believe that it is our task to know the phenomena before we seek explanation of higher causes. If a fact is once known in all its aspects, it is thereby explained and the duty of science fulfilled." The author did not have us dry-souled lawyers in mind when he made this assertion, but we who modestly seek to subordinate our discipline to that of the correct one of natural science, must take this doctrine absolutely to heart. Every crime we study is a fact, and once we know it in all its aspects and have accounted for every little detail, we have explained it and have done our duty.

But the word explain does not lead us very far. It is mainly a matter of reducing the mass of the inexplicable to a minimum and the whole to its simplest terms. If only we succeed in this reduction! In most cases we substitute for one well-known term, not

another still better one, but a strange one which may mean different things to different people. So again, we explain one event by means of another more difficult one. It is unfortunate that we lawyers are more than all others inclined to make unnecessary explanations, because our criminal law has accustomed us to silly definitions which rarely bring us closer to the issue and which supply us only with a lot of words difficult to understand instead of easily comprehensible ones. Hence we reach explanations both impossible and hard to make, explanations which we ourselves are often unwilling to believe. And again we try to explain and to define events which otherwise would have been understood by everybody and which become doubtful and uncertain because of the attempt. The matter becomes especially difficult when we feel ourselves unsure, or when we have discovered or expect contradiction. Then we try to convince ourselves that we know something, although at the beginning we were clearly enough aware that we knew nothing. We must not forget that our knowledge can attain only to ideas of things. It consists alone in the perception of the relation and agreement, or in the incompatibility and contradiction of some of our ideas. Our task lies exactly in the explication of these impressions, and the more thoroughly that is done the greater and more certain is the result. But we must never trust our own impressions merely. "When the theologian, who deals with the supersensible, has said all that, from his point of view, he can say, when the jurist, who represents those fundamental laws which are the result of social experience, has considered all reasons from his own point of view, the final authority in certain cases must be the physician who is engaged in studying the life of the body."

I get this from Maudsley,[1] and it leads us to keep in mind that our knowledge is very one-sided and limited, and that an event is known only when all have spoken who possess especial knowledge of its type. Hence, every criminalist is required to found his knowledge upon that of the largest possible number of experts and not to judge or discuss any matter which requires especial information without having first consulted an expert with regard to it. Only the sham knows everything; the trained man understands how little the mind of any individual may grasp, and how many must coöperate in order to explain the very simplest things.

The complexity of the matter lies in the essence of the concept

"to be." We use the word "to be" to indicate the intent of all perceived and perceivable. " `To be' and `to know' are identical in so far as they have identical content, and the content may be known?"[2]