CRIMINAL PSYCHOLOGY.
INTRODUCTION.
OF all disciplines necessary to the criminal justice in addition to
the knowledge of law, the most important are those derived from
psychology. For such sciences teach him to know the type of man
it is his business to deal with. Now psychological sciences appear
in various forms. There is a native psychology, a keenness of vision
given in the march of experience, to a few fortunate persons, who
see rightly without having learned the laws which determine the
course of events, or without being even conscious of them. Of this
native psychological power many men show traces, but very few
indeed are possessed of as much as criminalists intrinsically require.
In the colleges and pre-professional schools we jurists may acquire
a little scientific psychology as a "philosophical propaedeutic," but
we all know how insufficient it is and how little of it endures in the
business of life. And we had rather not reckon up the number of
criminalists who, seeing this insufficiency, pursue serious psychological
investigations.
One especial psychological discipline which was apparently created
for our sake is the psychology of law, the development of which,
in Germany, Volkmar[1] recounts.
This science afterward developed,
through the instrumentality of
Metzger[2] and
Platner,[3] as criminal
psychology. From the medical point of view especially, Choulant's
collection of the latter's, "Quaestiones," is still valuable. Criminal
psychology was developed further by
[4]Hoffbauer,
Grohmann,[5]
Heinroth,
[6]
[7]Sehaumann,
[8]Münch,
[9]Eckartshausen, and others. In
Kant's time the subject was a bone of contention between faculties,
Kant representing in the quarrel the philosophic, Metzger, Hoffbauer,
and Fries,
[10] the
medical faculties. Later legal psychology was simply
absorbed by psychiatry, and thereby completely subsumed among the
medical disciplines, in spite of the fact that
Regnault,
[11] still later,
attempted to recover it for philosophy, as is pointed out in
Friedreich's
[12]
well-known text-book (cf. moreover V.
Wilbrand's
[13] text-book).
Nowadays, criminal psychology, as represented by
Kraus,
[14]
Krafft-Ebing,
[15]
Maudsley,
[16]
Holtzendorff,
[17]
Lombroso,
[18] and others has become
a branch of criminal anthropology. It is valued as the doctrine
of motives in crime, or, according to Liszt, as the investigation of the
psychophysical condition of the criminal. It is thus only a part of the
subject indicated by its
name.
[19] How utterly criminal psychology has
become incorporated in criminal anthropology is demonstrated by the
works of
Näcke,
[20]
Kurella,
[21]
Bleuler,
[22]
Dallemagne,
[23]
Marro,
[24]
Ellis,
[25]
Baer,
[26]
Koch,
[27]
Maschka,
[28]
Thomson,
[29]
Ferri,
[30]
Bonfigli,
[31]
Corre,
[32] etc.
Literally, criminal psychology should be that form of psychology
used in dealing with crime; not merely, the psychopathology of
criminals, the natural history of the criminal mind. But taken even
literally, this is not all the psychology required by the criminalist.
No doubt crime is an objective thing. Cain would actually have
slaughtered Abel even if at the time Adam and Eve were already
dead. But for us each crime exists only as we perceive it,—as we
learn to know it through all those media established for us in criminal
procedure. But these media are based upon sense-perception, upon
the perception of the judge and his assistants, i. e.: upon witnesses,
accused, and experts. Such perceptions must be psychologically
validated. The knowledge of the principles of this validation
demands again a special department of general psychology—even
such a pragmatic applied psychology as will deal with all states of
mind that might possibly be involved in the determination and judgment
of crime. It is the aim of this book to present such a psychology.
"If we were gods," writes Plato in the Symposium, "there would
be no philosophy"—and if our senses were truer and our sense
keener, we should need no psychology. As it is we must strive hard
to determine certainly how we see and think; we must understand
these processes according to valid laws organized into a system—
otherwise we remain the shuttlecocks of sense, misunderstanding and
accident. We must know how all of us,—we ourselves, witnesses,
experts, and accused, observe and perceive; we must know how
they think,—and how they demonstrate; we must take into
account how variously mankind infer and perceive, what mistakes
and illusions may ensue; how people recall and bear in mind; how
everything varies with age, sex, nature, and cultivation. We must
also see clearly what series of influences can prevail to change all
those things which would have been different under normal conditions.
Indeed, the largest place in this book will be given to the
witness and the judge himself, since we want in fact, from the first
to keep in mind the creation of material for our instruction; but the
psychology of the criminal must also receive consideration whereever
the issue is not concerned with his so-called psychoses, but
with the validation of evidence.
Our method will be that fundamental to all psychological investigation,
and may be divided into three parts:[33]
1. The preparation of a review of psychological phenomena.
2. Study of causal relationships.
3. Establishment of the principles of psychic activity.
The subject-matter will be drawn on the one hand, from that
already presented by psychological science, but will be treated
throughout from the point of view of the criminal judge, and prepared
for his purposes. On the other hand, the material will be
drawn from these observations that alone the criminologist at work
can make, and on this the principles of psychology will be brought
to bear.
We shall not espouse either pietism, scepticism, or criticism.
We have merely to consider the individual phenomena, as they may
concern the criminalist; to examine them and to establish whatever
value the material may have for him; what portions may be of
use to him in the interest of discovering the truth; and where the
dangers may lurk that menace him. And just as we are aware
that the comprehension of the fundamental concepts of the exact
sciences is not to be derived from their methodology, so we must
keep clearly in mind that the truth which we criminalists have to
attain can not be constructed out of the formal correctness of the
content presented us. We are in duty bound to render it materially
correct. But that is to be achieved only if we are acquainted with
principles of psychology, and know how to make them serve our
purposes. For our problem, the oft-quoted epigram of Bailey's,
"The study of physiology is as repugnant to the psychologist as
that of acoustics to the composer," no longer holds. We are not
poets, we are investigators. If we are to do our work properly, we
must base it completely upon modern psycho physical fundamentals.
Whoever expects unaided to find the right thing at the right moment
is in the position of the individual who didn't know whether he could
play the violin because he had not yet tried. We must gather
wisdom while we are not required to use it; when the time for
use arrives, the time for harvest is over.
Let this be our fundamental principle: That we criminalists
receive from our main source, the witnesses, many more inferences
than observations, and that this fact is the basis of so many mistakes
in our work. Again and again we are taught, in the deposition of
evidence, that only facts as plain sense-perceptions should be presented;
that inference is the judge's affair. But we only appear
to obey this principle; actually, most of what we note as fact
and sense-perception, is nothing but a more or less justified
judgment, which though presented in the honestest belief, still
offers no positive truth. "Amicus Plato, sed magis amica
Veritas."
There is no doubt that there is an increasing, and for us jurists,
a not unimportant demand for the study of psychology in its bearing
on our profession. But it must be served. The spirited Abbé
de Baëts, said at a meeting of criminalists in Brussels, that the
present tendency of the science of criminal law demands the observation
of the facts of the daily life. In this observation consists the alpha
and omega of our work; we can perform it only with the flux of
sensory appearances, and the law which determines this flux, and
according to which the appearances come, is the law of causation.
But we are nowhere so neglectful of causation as in the deeds of
mankind. A knowledge of that region only psychology can give us.
Hence, to become conversant with psychological principles, is the
obvious duty of that conscientiousness which must hold first place
among the forces that conserve the state. It is a fact that there
has been in this matter much delinquency and much neglect. If,
then, we were compelled to endure some bitterness on account of it,
let it be remembered that it was always directed upon the fact that
we insisted on studying our statutes and their commentaries, fearfully
excluding every other discipline that might have assisted us,
and have imported vitality into our profession. It was
Gneist[34]
who complained: "The contemporary low stage of legal education
is to be explained like much else by that historical continuity which
plays the foremost rôle in the administration of justice."
Menger[35]
does not mention "historical continuity" so plainly, but he points
sternly enough to the legal sciences as the most backward of all
disciplines that were in contact with contemporary tendencies.
That these accusations are justified we must admit, when we consider
what Stölzel[36] and
the genial creator of modern civil teaching
demands: "It must be recognized that jurisprudence in reality
is nothing but the thesis of the healthy human understanding in
matters of law." But what the "healthy human mind" requires
we can no longer discover from our statutory paragraphs only.
How shameful it is for us, when
Goldschmidt[37] openly narrates how a
famous scientist exclaimed to a student in his laboratory: "What
do you want here? You know nothing, you understand nothing,
you do nothing,—you had better become a lawyer."
Now let us for once frankly confess why we are dealt these disgraceful
reproaches. Let us agree that we have not studied or dealt
with jurisprudence as a science, have never envisaged it as an empirical
discipline; that the aprioristic and classical tradition had kept
this insight at a distance, and that where investigation and effort
toward the recognition of the true is lacking, there lacks everything
of the least scientific importance. To be scientifically legitimate,
we need first of all the installation of the disciplines of research
which shall have direct relationships with our proper task. In this
way only can we attain that spiritual independence by means of
spiritual freedom, which Goldschmidt defines as the affair of the
higher institutions of learning, and which is also the ideal of our own
business in life. And this task is not too great. "Life is movement,"
cried Alois von Brinz,[38]
in his magnificent inaugural address. "Life
is not the thought, but the thinking which comes in the fullness of
action."
It may be announced with joy and satisfaction, that since the
publication of the first edition of this book, and bearing upon it,
there came to life a rich collection of fortuitous works which have
brought together valuable material. Concerning the testimony of
witnesses, its nature and value, concerning memory, and the types
of reproduction, there is now a considerable literature. Everywhere
industrious hands are raised,—hands of psychologists, physicians,
and lawyers, to share in the work. Should they go on unhurt we
may perhaps repair the unhappy faults committed by our ancestors
through stupid ignorance and destructive use of uncritically collected
material.
[[1]]
W. Volkmann v. Volkmar: Lehrbuch der Psychologie (2 vols.). Cöthen
1875.
[[2]]
J. Metzger: "Gerichtlich-medizinische Abhandhingen." Königsberg
1803.
[[3]]
Ernst Platner: Questiones medicinae forensic, tr. German by
Hederich. Leipzig 1820.
[[4]]
J. C. Hoffbauer Die Psychologie in ibren Hauptanwendungen auf die
Rechtspflege. Halle 1823.
[[5]]
G. A. Grohmann: Ideen zu einer physiognomischen Anthropologie. Leipzig
1791.
[[6]]
Johann Heinroth: Grundzuge der Kriminalpsychologie. Berlin 1833.
[[7]]
Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792.
[[8]]
Münch: Über den Einfluss der Kriminalpsychologie auf Pin System
der
Kriminal-Rechts. Nürnberg 1790.
[[9]]
Eckartshausen. Über die Notwendigkeit psychologischer Kenntnisse bei
Beurteilung von Verbrechern. München, 1791.
[[10]]
J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820.
[[11]]
E. Regnault: Das gerichtliche Urteil der Ärzte über
psychologische Zustande.
Cöln, 1830.
[[12]]
J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg 1832.
[[13]]
Wilbrand: Gerichtliche Psychologie. 1858.
[[14]]
Kraus: Die Psychologie des Verbrechens. Tübingen, 1884.
[[15]]
v. Krafft-Ebing: Die zweifelhaften Geisteszustände. Erlangen 1873.
[[16]]
Maudsley: Physiology and Pathology of the Mind.
[[17]]
v. Holtzendorff—articles in "Rechtslexikon."
[[18]]
Lombroso: L'uomo delinquente, ete.
[[19]]
Aschaffenburg: Articles in Zeitscheift f. d. gesamten
Strafrechtwissen-schaften,
especially in. XX, 201.
[[20]]
Dr. P. Näcke: Über Kriminal Psychologie, in the above-mentioned
Zeitschrift, Vol. XVII.
Verbrechen und Wahnsinn beim Weibe. Vienna, Leipsig, 1884.
Moral Insanity: Ärztliche Sachverständigen-Zeitung, 1895;
Neurologisches Zentralblatt, Nos. 11 and 16. 1896
[[21]]
Kurella: Naturgeschichte des Verbrechers. Stuttgart 1893.
[[22]]
Bleuler: Der geborene Verbrecher. Munchen 1896.
[[23]]
Dallemagne. Kriminalanthropologie. Paris 1896.
[[24]]
Marro: I caratteri dei deliquenti. Turin 1887. I carcerati. Turin 1885.
[[25]]
Havelock Ellis: The Criminal. London 1890.
[[26]]
A. Baer: Der Verbrecher Leipzig 1893.
[[27]]
Koch. Die Frage nach dem geborenen Verbrecher. Ravensberg 1894.
[[28]]
Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). Tübingen
1883.
[[29]]
Thomson. Psychologie der Verbrecher.
[[30]]
Ferri: Gerichtl. Psychologie. Mailand 1893.
[[31]]
Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892.
[[32]]
Corre: Les Criminels. Paris 1889.
[[33]]
P. Jessen: Versuch einer wissenschaftlichen Begrundung der Psychologie.
Berlin 1855.
[[34]]
R. Gneist: Aphorismen zur Reform des Rechtestudiums. Berlin 1887.
[[35]]
A. Menger: in Archiv fin soziale Gesetzgebung v. Braun II.
[[36]]
A. Stölsel: Schulung fin die Zivilistiche Praxis. 2d Ed. Berlin 1896.
[[37]]
S. Goldschmidt: Rechtestudium und Prüfungsordnung. Stuttgart 1887.
[[38]]
A. v. Brinz: Über Universalität. Rektorsrede 1876.