But the will is also significant in judging the man as a whole. According to Drobisch,[236] 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[237] 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.[238]
Topic 8. EMOTION.
Section 58.
Little as emotion, as generally understood, may have to do with the criminalist, it is, in its intention, most important for him. The motive of a series of phenomena and events, both in prisoners and witnesses, is emotion. In what follows, therefore, we shall attempt to show that feeling, in so far as we need to consider it, need not be taken as an especial function. This is only so far significant as to make our work easier by limiting it to fewer subjects. If we can reduce some one psychic function to another category we can explain many a thing even when we know only the latter. In any event, the study of a single category is simpler than that of many.[239]
Abstractly, the word emotion is the property or capacity of the mind to be influenced pleasantly or unpleasantly by sensations, perceptions, and ideas. Concretely, it means the conditions of desire or disgust which are developed by the complex of conditions thereby aroused. We have first to distinguish between the so-called animal and the higher emotions. We will assume that this distinction is incorrect, inasmuch as between these classes there is a series of feelings which may be counted as well with one as with the other, so that the transition is incidental and no strict differentiation is possible. We will, however, retain the distinction, as it is easier by means of it to pass from the simpler to the more difficult emotions. The indubitably animal passions we shall take to be hunger, thirst, cold, etc. These are first of all purely physiological stimuli which act on our body. But it is impossible to imagine one of them, without, at the same time, inevitably bringing in the idea of the defense against this physiological stimulus. It is impossible to think of the feeling of hunger without sensing also the strain to find relief from this feeling, for without this sensation hunger would not appear as such. If I am hungry I go for food; if I am cold I seek for warmth; if I feel pain I try to wipe it out. How to satisfy these desiderative actions is a problem for the understanding, whence it follows that successful satisfaction, intelligent or unintelligent, may vary in every possible degree. We see that the least intelligent—real cretins—sometimes are unable to satisfy their hunger, for when food is given the worst of them, they stuff it, in spite of acute sensations of hunger, into their ears and noses, but not into their mouths. We must therefore say that there is always a demand for a minimum quantity of intelligence in order to know that the feeling of hunger may be vanquished by putting food into the mouth.