Criminal Psychology by Hans Gross (best book club books for discussion TXT) 📖

x+1 cases. If I have observed x times that clouds of a certain structure are followed by rain I shall expect rain in the x+1st case. The first analogy is worthless because there is no relation between color and perfume; the second is of great value because such a relation does exist between rain and clouds.

Simply stated, the difference between these two examples does not consist in the existence of a relationship in the one case and the absence of a relationship in the other; it consists in the fact that in the case of the flowers the relationship occurs now and then but is not permanently knowable. It is possible that there is a natural law controlling the relation between color and odor, and if that law were known there would be no question of accident or of analogy, but of law. Our ignorance of such a law, in spite of the multiplicity of instances, lies in the fact that we are concerned only with the converse relationships and not with the common cause of perfume and color. Suppose I see on the street a large number of people with winter over-coats and a large number of people with skates in their hands, I would hardly ask whether the coats are conditioned or brought out by the skates or the skates by the coats. If I do not conclude that the cold weather is the condition both of the need of over-coats and the utility of skates, I will suppose that there is some unintelligible reflexive relation between over-coats and skates. If I observe that on a certain day every week there regularly appear many well-dressed people and no workingmen on the street, if I am ignorant of the fact that Sunday is the cause of the appearance of the one and the disappearance of the other, I shall try in vain to find out how it happens that the working people are crowded out by the well-dressed ones or conversely.

The danger of analogy lies in the fact that we prefer naturally to depend on something already known, and that the preference is the greater in proportion to our feeling of the strangeness and ominousness of the particular intellectual or natural regions in which we find ourselves. I have already once demonstrated[141] how disquieting it is to notice, during the examination of the jury, that the jurymen who ask questions try to find some relation to their own trades even though this requires great effort, and seek to bring the case they are asking about under the light of their particular profession. So, however irrelevant the statement of a witness may be, the merchant juryman will use it to explain Saldo-Conti, the carpenter juryman to explain carpentry, the agriculturist to notice the farming of cattle, and then having set the problem in his own field construct the most daring analogies, for use in determining the guilt of the accused. And we lawyers are no better. The more difficult and newer a case is the more are we inclined to seek analogies. We want supports, for we do not find firm natural laws, and in our fear we reach out after analogies, not of course in law, because that is not permitted, but certainly in matters of fact. Witness X has given difficult testimony in a certain case. We seek an analogy in witness Y of an older case, and we observe the present issue thus analogically, without the least justification. We have never yet seen drops of blood on colored carpets, yet we believe in applying our experience of blood stains on clothes and boots analogically. We have before us a perfectly novel deed rising from perverted sexual impulse—and we presuppose that the accused is to be treated altogether analogously to another in a different case, although indeed the whole event was different.

Moreover the procedure, where the analogy is justified, is complex. “With insight,” says Trendelenburg, “did the ancients regard analogy as important. The power of analogy lies in the construction and induction of a general term which binds the subconcept with regard to which a conclusion is desired, together with the individual object which is compared with the first, and which is to appear as a mediating concept but can not. This new general term is not, however, the highest concept among the three termini of the conclusion; it is the middle one and is nothing else than the terminus medius of the first figure.” This clear statement shows not only how circumstantial every conclusion from analogy is, but also how little it achieves. There is hardly any doubt of the well-known fact that science has much to thank analogy for, since analogy is the simplest and easiest means for progress in thought. If anything is established in any one direction but progress is desired in another, then the attempt is made to adapt what is known to the proximate unknown and to draw the possible inference by analogy. Thousands upon thousands of analogies have been attempted and have failed,—but no matter; one successful one became a hypothesis and finally an important natural law. In our work, however, the case is altogether different, for we are not concerned with the construction of hypotheses, we are concerned with the discovering of truth, or with the recognition that it cannot be discovered.

The only place where our problems permit of the use of analogy is in the making of so-called constructions, i.e., when we aim to clarify or to begin the explanation of a case which is at present unintelligible, by making some assumption. The construction then proceeds in analogy to some already well known earlier case. We say: “Suppose the case to have been so and so,” and then we begin to test the assumption by applying it to the material before us, eliminating and constructing progressively until we get a consistent result. There is no doubt that success is frequently attained in this way and that it is often the only way in which a work may be begun. At the same time, it must be recognized how dangerous this is, for in the eagerness of the work it is easy to forget that so far, one is working only according to analogy by means of an assumption still to be proved. This assumption is in such cases suddenly considered as something already proved and is counted as such with the consequence that the result must be false. If you add the variability in value of analogy, a variability not often immediately recognized, the case becomes still worse. We have never been on the moon, have therefore apparently no right to judge the conditions there—and still we know—only by way of analogy—that if we jumped into the air there we should fall back to the ground. But still further: we conclude again, by analogy, that there are intelligent beings on Mars; if, however, we were to say how these people might look, whether like us or like cubes or like threads, whether they are as large as bees or ten elephants, we should have to give up because we have not the slightest basis for analogy.

In the last analysis, analogy depends upon the recurrence of similar conditions. Therefore we tacitly assume when we judge by analogy that the similarity of conditions contains an equivalence of ultimately valid circumstance. The certainty of analogy is as great as the certainty of this postulate, and its right as great as the right of this postulate.

If, then, the postulate is little certain, we have gained nothing and reach out into the dark; if its certainty is great we no longer have an analogy, we have a natural law. Hence, Whately uses the term analogy as an expression for the similarity of relation, and in this regard the use of analogy for our real work has no special significance. Concerning so-called false analogies and their importance cf. J. Schiel’s Die Methode der induktiven Forschung (Braunschweig 1865).

Section 28. (f) Probability.

Inasmuch as the work of the criminal judge depends upon the proof of evidence, it is conceivable that the thing for him most important is that which has evidential character or force.[142] A sufficient definition of evidence or proof does not exist because no bounds have been set to the meaning of “Proved.” All disciplines furnish examples of the fact that things for a long time had probable validity, later indubitable validity; that again some things were considered proved and were later shown to be incorrect, and that many things at one time wobbly are in various places, and even among particular persons, supposed to be at the limits of probability and proof. Especially remarkable is the fact that the concept of the proved is very various in various sciences, and it would be absorbing to establish the difference between what is called proved and what only probable in a number of given examples by the mathematician, the physicist, the chemist, the physician, the naturalist, the philologist, the historian, the philosopher, the lawyer, the theologian, etc. But this is no task for us and nobody is called upon to determine who knows what “Proved” means. It is enough to observe that the differences are great and to understand why we criminalists have such various answers to the question: Is this proved or only probable? The varieties may be easily divided into groups according to the mathematical, philosophic, historical or naturalistic inclinations of the answerer. Indeed, if the individual is known, what he means by “proved” can be determined beforehand. Only those minds that have no especial information remain confused in this regard, both to others, and to themselves.

Sharply to define the notion of “proved” would require at least to establish its relation to usage and to say: What we desire leads us to an assumption, what is possible gives us probability, what appears certain, we call proved. In this regard the second is always, in some degree, the standard for the first (desires, e.g., cause us to act; one becomes predominant and is fixed as an assumption which later on becomes clothed with a certain amount of reliability by means of this fixation).

The first two fixations, the assumption and the probability, have in contrast to their position among other sciences only a heuristic interest to us criminalists. Even assumptions, when they become hypotheses, have in various disciplines a various value, and the greatest lucidity and the best work occur mainly in the quarrel about an acutely constructed hypothesis.

Probability has a similar position in the sciences. The scholar who has discovered a new thought, a new order, explanation or solution, etc., will find it indifferent whether he has made it only highly probable or certain. He is concerned only with the idea, and a scholar who is dealing with the idea for its own sake will perhaps prefer to bring it to a great probability rather than to indubitable certainty, for where conclusive proof is presented there is no longer much interest in further research, while probability permits and requires further study. But our aim is certainty and proof only, and even a high degree of probability is no better than untruth and can not count. In passing judgment and for the purpose of judgment a high degree of probability can have only corroborative weight, and then it is probability only when taken in itself, and proof when taken with regard to the thing it corroborates. If, for example, it is most probable that X was recognized at the place of a crime, and if at the same time his evidence of alibi has failed, his footmarks are corroborative; so are the stolen goods which have been seen in his possession, and something he had lost at the place of the crime which is recognized as his property, etc. In short, when