Section 57.
Of course, we do not intend to discuss here either the "will"
of the philosopher, or the "malice" or "ill-will" of criminal
law, nor yet the "freedom of the will" of the moralist. We aim
only to consider a few facts that may be of significance to the criminal
lawyer. Hence, we intend by "will" only what is currently and
popularly meant. I take will to be
the innereffect of the more
powerful impulses, while action is
the externaleffect of those impulses.
When Hartmann says that will is the transposition of the ideal into
the real, he sounds foolish, but in one sense the definition is excellent.
You need only understand by ideal that which does not yet exist,
and by real that which is a fact and actual. For when I voluntarily
compel myself to think about some subject, something has actually
happened, but this event is not "real" in the ordinary sense of that
word. We are to bear in mind, however, that Locke warned us
against the contrast between intelligence and will, as real, spiritual
essences, one of which gives orders and the other of which obeys.
From this conception many fruitless controversies and confusions
have arisen. In this regard, we criminalists must always remember
how often the common work of will and intelligence opposes us in
witnesses and still more so in defendants, causing us great difficulties.
When the latter deny their crime with iron fortitude and conceal
their guilt by rage, or when for months they act out most difficult
parts with wonderful energy, we must grant that they exhibit aspects
of the will which have not yet been studied. Indeed, we can make
surprising observations of how effectively prisoners control the
muscles of their faces, which are least controllable by the will. The
influence the will may have on a witness's power even to flush and
grow pale is also more extensive than may be established scientifically.
This can be learned from quite remote events. My son happens to
have told me that at one time he found himself growing pale with
cold, and as under the circumstance he was afraid of being accused
of lacking courage to pursue his task, he tried with all his power to
suppress his pallor, and succeeded perfectly. Since then, at court,
I have seen a rising blush or beginning pallor suppressed completely;
yet this is theoretically impossible.
But the will is also significant in judging the man as a whole.
According to Drobisch,[1] the
abiding qualities and ruling "set" of a
man's volition constitute his character. Not only inclination, and
habits, and guiding principles determine the character, but also
meanings, prejudices, convictions, etc. of all kinds. Since, then, we
can not avoid studying the character of the individual, we must
trace his volitions and desires. This in itself is not difficult; the
idea of his character develops spontaneously when so traced. But
the will contains also the characteristic signs of difference which are
important for our purposes. We are enabled to work intelligently
and clearly only by our capacity for distinguishing indifferent,
from criminal and logically interpretable deeds. Nothing makes our
work so difficult as the inconceivably superfluous mass of details.
Not every deed or activity is an action; only those are such which
are determined by will and knowledge. So
Abegg[2] teaches us, what
is determined by means of the will may be discovered by analysis.
Of course, we must find the proper approach to this subject and
not get lost in the libertarian-deterministic quarrel, which is the
turning-point in contemporary criminal law. Forty years ago
Renan said that the error of the eighteenth century lay generally
in assigning to the free and self-conscious will what could be explained
by means of the natural effects of human powers and capacities.
That century understood too little the theory of instinctive activity.
Nobody will claim that in the transposition of willing into the
expression of human capacity, the question of determinism is solved.
The solution of this question is not our task. We do get an opening
however through which we can approach the criminal,—not by
having to examine the elusive character of his will, but by apprehending
the intelligible expression of his capacity. The weight of our
work is set on the application of the concept of causality, and the
problem of free-will stands or falls with that.
Bois-Reymond in his "Limits of the Knowledge of Nature" has
brought some clearness into this problem: "Freedom may be
denied, pain and desire may not; the appetite which is the stimulus
to action necessarily precedes sense-perception. The problem,
therefore, is that of sense-perception, and not as I had said a minute
ago, that of the freedom of the will. It is to the former that analytic
mechanics may be applied." And the study of sense-perception is
just what we lawyers may be required to undertake.
Of course, it is insufficient merely to study the individual
manifestations
of human capacities, for these may be accidental results
or phenomena, determined by unknown factors. Our task consists
in attaining abstractions in accord with careful and conscientious
perceptions, and in finding each determining occasion in its particular
activities.
According to Drobisch, "maxims and the subjective principles
of evolution are, as Kant calls them, laws of general content required
to determine our own volitions and actions. Then again, they are
rules of our own volition and action which we ourselves construct,
and which hence are subjectively valid. When these maxims
determine our future volitions and actions they are postulates."
We may, therefore, say that we know a man when we know his will,
and that we know his will when we know his maxims. By means of
his maxims we are able to judge his actions.
But we must not reconstruct his maxims theoretically. We
must study everything that surrounds, alters, and determines him,
for it is at this point that a man's environments and relationships
most influence him. As Grohmann said, half a century ago, "If
you could find an elixir, which could cause the vital organs to work
otherwise, if you could alter the somatic functions of the body, you
would be the master of the will." Therefore it is never superfluous
to study the individual's environmental conditions, surroundings,
all his outer influences. That the effort required in such a study is
great, is of course obvious, but the criminal lawyer must make it
if he is to perform his task
properly.[3]
[[ id="n57.1"]]
M. W. Drobisch: Die moralische Statistik. Leipzig 1867.
[[ id="n57.2"]]
Neues Archiv des Kriminal-Rechts. Vol. 14.
[[ id="n57.3"]]
H. Münsterberg: Die Willeshandlung and various chapters on will in
the psychologies of James, Titchener, etc.