INTRODUCTION TO THE ENGLISH VERSION.
WHAT Professor Gross presents in this volume is nothing less
than an applied psychology of the judicial processes,—a critical
survey of the procedures incident to the administration of justice
with due recognition of their intrinsically psychological character,
and yet with the insight conferred by a responsible experience with
a working system. There is nothing more significant in the history
of institutions than their tendency to get in the way of the very
purposes which they were devised to meet. The adoration of measures
seems to be an ineradicable human trait. Prophets and reformers
ever insist upon the values of ideals and ends—the spiritual
meanings of things—while the people as naturally drift to the
worship of cults and ceremonies, and thus secure the more superficial
while losing the deeper satisfactions of a duty performed. So
restraining is the formal rigidity of primitive cultures that the
mind of man hardly moves within their enforced orbits. In complex
societies the conservatism, which is at once profitably conservative
and needlessly obstructing, assumes a more intricate,
a more evasive, and a more engaging form. In an age for which
machinery has accomplished such heroic service, the dependence
upon mechanical devices acquires quite unprecedented dimensions.
It is compatible with, if not provocative of, a mental indolence,—
an attention to details sufficient to operate the machinery, but a
disinclination to think about the principles of the ends of its operation.
There is no set of human relations that exhibits more distinctively
the issues of these undesirable tendencies than those
which the process of law adjusts. We have lost utterly the older
sense of a hallowed fealty towards man-made law; we are not
suffering from the inflexibility of the Medes and the Persians. We
manufacture laws as readily as we do steam-rollers and change their
patterns to suit the roads we have to build. But with the profit of
our adaptability we are in danger of losing the underlying sense of
purpose that inspires and continues to justify measures, and to
lose also a certain intimate intercourse with problems of theory and
philosophy which is one of the requisites of a professional equipment
and one nowhere better appreciated than in countries loyal to
Teutonic ideals of culture. The present volume bears the promise
of performing a notable service for English readers by rendering
accessible an admirable review of the data and principles germane
to the practices of justice as related to their intimate conditioning
in the psychological traits of men.
The significant fact in regard to the procedures of justice is that
they are of men, by men, and for men. Any attempt to eliminate
unduly the human element, or to esteem a system apart from its
adaptation to the psychology of human traits as they serve the
ends of justice, is likely to result in a machine-made justice and a
mechanical administration. As a means of furthering the plasticity
of the law, of infusing it with a large human vitality—a movement
of large scope in which religion and ethics, economics and
sociology are worthily cooperating—the psychology of the party
of the first part and the party of the second part may well be considered.
The psychology of the judge enters into the consideration
as influentially as the psychology of the offender. The many-sidedness
of the problems thus unified in a common application is
worthy of emphasis. There is the problem of evidence: the ability
of a witness to observe and recount an incident, and the distortions
to which such report is liable through errors of sense, confusion of
inference with observation, weakness of judgment, prepossession,
emotional interest, excitement, or an abnormal mental condition.
It is the author's view that the judge should understand these
relations not merely in their narrower practical bearings, but in
their larger and more theoretical aspects which the study of psychology
as a comprehensive science sets forth. There is the allied
problem of testimony and belief, which concerns the peculiarly
judicial qualities. To ease the step from ideas to their expression,
to estimate motive and intention, to know and appraise at their
proper value the logical weaknesses and personal foibles of all kinds
and conditions of offenders and witnesses,—to do this in accord
with high standards, requires that men as well as evidence shall be
judged. Allied to this problem which appeals to a large range of
psychological doctrine, there is yet another which appeals to a
yet larger and more intricate range,—that of human character and
condition. Crimes are such complex issues as to demand the systematic
diagnosis of the criminal. Heredity and environment,
associations and standards, initiative and suggestibility, may all
be condoning as well as aggravating factors of what becomes a
"case." The peculiar temptations of distinctive periods of life,
the perplexing intrusion of subtle abnormalities, particularly when
of a sexual type, have brought it about that the psychologist has
extended his laboratory procedures to include the study of such
deviation; and thus a common set of findings have an equally pertinent
though a different interest for the theoretical student of
relations and the practitioner. There are, as well, certain special
psychological conditions that may color and quite transform the
interpretation of a situation or a bit of testimony. To distinguish
between hysterical deception and lying, between a superstitious
believer in the reality of an experience and the victim of an
actual hallucination, to detect whether a condition of emotional
excitement or despair is a cause or an effect, is no less a psychological
problem than the more popularly discussed question of compelling
confession of guilt by the analysis of laboratory reactions. It may
well be that judges and lawyers and men of science will continue to
differ in their estimate of the aid which may come to the practical
pursuits from a knowledge of the relations as the psychologist
presents them in a non-technical, but yet systematic analysis. Professor
Gross believes thoroughly in its importance; and those who
read his book will arrive at a clearer view of the methods and issues
that give character to this notable chapter in applied psychology.
The author of the volume is a distinguished representative of the
modern scientific study of criminology, or "criminalistic" as he
prefers to call it. He was born December 26th, 1847, in Graz (Steiermark),
Austria, pursued his university studies at Vienna and Graz,
and qualified for the law in 1869. He served as "Untersuchungsrichter"
(examining magistrate) and in other capacities, and received
his first academic appointment as professor of criminal law
at the University of Czernowitz. He was later attached to the German
University at Prague, and is now professor in the University
of Graz. He is the author of a considerable range of volumes bearing
on the administration of criminal law and upon the theoretical
foundations of the science of criminology. In 1898 he issued his
"Handbuch fur Untersuchungsrichter, als System der Kriminalistik,"
a work that reached its fifth edition in 1908, and has been
translated into eight foreign languages. From 1898 on he has been
the editor of the "Archiv für Kriminalanthropologie und Kriminalistik,"
of which about twenty volumes have appeared. He is a
frequent contributor to this journal, which is an admirable representative
of an efficient technical aid to the dissemination of interest
in an important and difficult field. It is also worthy of mention
that at the University of Graz he has established a Museum of
Criminology, and that his son, Otto Gross, is well known as a
specialist in nervous and mental disorders and as a contributor to
the psychological aspects of his specialty. The volume here presented
was issued in 1897; the translation is from the second and
enlarged edition of 1905. The volume may be accepted as an authoritative
exposition of a leader in his "Fach," and is the more acceptable
for purposes of translation, in that the wide interests of the writer
and his sympathetic handling of his material impart an unusually
readable quality to his pages.
JOSEPH JASTROW.
MADISON, WISCONSIN,
DECEMBER, 1910.