Part 9 (2/2)
The frequency of mistakes like those just mentioned is well known. They affect history. Even La Rochefoucauld was of the opinion that the great and splendid deeds which are presented by statesmen as the outcome of far-reaching plans are, as a rule, merely the result of inclination and pa.s.sion. This opinion concerns the lawyer's task also, for the lawyer is almost always trying to discover the moving, great, and unified plan of each crime, and in order to sustain such a notion, prefers to perfect a large and difficult theoretic construction, rather than to suppose that there never was a plan, but that the whole crime sprang from accident, inclination, and sudden impulse. The easiest victims in this respect are the most logical and systematic lawyers; they merely presuppose, ”I would not have done this” and forget that the criminal was not at all so logical and systematic, that he did not even work according to plan, but simply followed straying impulses.
Moreover, a man may have determined his causal connections correctly, yet have omitted many things, or finally have made a voluntary stop at some point in his work, or may have carried the causal chain unnecessarily far. This possibility has been made especially clear by J. S. Mill, who showed that the immediately preceding condition is never taken as cause. When we throw a stone into the water we call the cause of its sinking its gravity, and not the fact that it has been thrown into the water. So again, when a man falls down stairs and breaks his foot, in the story of the fall the law of gravity is not mentioned; it is taken for granted. When the matter is not so clear as in the preceding examples, such facts are often the cause of important misunderstandings. In the first case, where the immediately preceding condition is *not mentioned, it is the inaccuracy of the expression that is at fault, for we see that at least in scientific form, the efficient cause is always the immedi-
ately preceding condition. So the physician says, ”The cause of death was congestion of the brain in consequence of pressure resulting from extravasation of the blood.” And he indicates only in the second line that the latter event resulted from a blow on the head. In a similar manner the physicist says that the board was sprung as a consequence of the uneven tension of the fibers; he adds only later that this resulted from the warmth, which again is the consequence of the direct sunlight that fell on the board. Now the layman had in both cases omitted the proximate causes and would have said in case 1, ”The man died because he was beaten on the head,” and in case 2 ”The board was sprung because it lay in the sun.” We have, therefore, to agree to the surprising fact that the layman skips more intermediaries than the professional, but only because either he is ignorant of or ignores the intervening conditions. Hence, he is also in greater danger of making a mistake through omission.
Inasmuch as the question deals only with the scarcity of correct knowledge of proximate causes, we shall set aside the fact that lawyers themselves make such mistakes, which may be avoided only by careful self-training and cautious attention to one's own thoughts. But we have at the same time to recognize how important the matter is when we receive long series of inferences from witnesses who give expression only to the first and the last deduction. If we do not then examine and investigate the intermediary links and their justification, we deserve to hear extravagant things, and what is worse, to make them, as we do, the foundation of further inference. And once this is done no man can discover where the mistake lies.
If again an inference is omitted as self-evident (cf. the case of gravity, in falling down stairs) the source of error and the difficulty lies in the fact that, on the one hand, not everything is as self-evident as it seems; on the other, that two people rarely understand the same thing by ”self-evident,” so that what is self-evident to one is far from so to the other. This difference becomes especially clear when a lawyer examines professional people who can imagine offhand what is in no sense self-evident to persons in other walks of life. I might cite out of my own experience, that the physicist Boltzmann, one of the foremost of living mathematicians, was told once upon a time that his demonstrations were not sufficiently detailed to be intelligible to his cla.s.s of non-professionals, so that his hearers could not follow him. As a result, he carefully counted the simplest additions or interpolations on the blackboard, but at
the same time integrated them, etc., in his head, a thing which very few people on earth can do. It was simply an off-hand matter for this genius to do that which ungenial mortals can not.
This appears in a small way in every second criminal case. We have only to subst.i.tute the professionals who appear as witnesses. Suppose, e. g., that a hunter is giving testimony. He will omit to state a group of correlations; with regard to things which are involved in his trade, he will reach his conclusion with a single jump. Then we reach the fatal circle that the witness supposes that we can follow him and his deductions, and are able to call his attention to any significant error, while we, on the other hand, depend on his professional knowledge, and agree to his leaping inferences and allow his conclusions to pa.s.s as valid without knowing or being able to test them.
The notion of ”specialist” or ”professional” must be applied in such instances not only to especial proficients in some particular trade, but also to such people as have by accident merely, any form of specialized knowledge, e. g., knowledge of the place in which some case had occurred. People with such knowledge present many a thing as self-evident that can not be so to people who do not possess the knowledge. Hence, peasants who are asked about some road in their own well known country reply that it is ”straight ahead and impossible to miss” even when the road may turn ten times, right and left.
Human estimates are reliable only when tested and reviewed at each instant; complicated deductions are so only when deduction after deduction has been tested, each in itself, Lawyers must, therefore, inevitably follow the rule of requiring explication of each step in an inference-such a requirement will at least narrow the limits of error.
The task would be much easier if we were fortunate enough to be able to help ourselves with experiments. As Bernard[1] says, ”There is an absolute determinism in the existential conditions of natural phenomena, as much in living as in non-living bodies. If the condition of any phenomenon is recognized and fulfilled the phenomenon must occur whenever the experimenter desires it.” But such determination can be made by lawyers in rare cases only, and to-day the criminalist who can test experimentally the generally a.s.serted circ.u.mstance attested by witnesses, accused, or experts,
[1] C. Bernard: Introduction '>cine Experimentale. Paris 1871.
is a rarissima avis. In most cases we have to depend on our experience, which frequently leaves us in difficulties if we fail thoroughly to test it. Even the general law of causation, that every effect has its cause, is formulated, as Hume points out, only as a matter of habit. Hume's important discovery that we do not observe causality in the external world, demonstrates only the difficulty of the interpretation of causality. The weakness of his doctrine lies in his a.s.sertion that the knowledge of causality may be obtained through habit because we perceive the connection of similars, and the understanding, through habit, deduces the appearance of the one from that of the other. These a.s.sertions of the great thinker are certainly correct, but he did not know how to ground them. Hume teaches the following doctrine:
The proposition that causes and effects are recognized, not by the understanding but because of experience, will be readily granted if we think of such things as we may recollect we were once altogether unacquainted with. Suppose we give a man who has no knowledge of physics two smooth marble plates. He will never discover that when laid one upon the other they are hard to separate. Here it is easily observed that such properties can be discovered only through experience. n.o.body, again, has the desire to deceive himself into believing that the force of burning powder or the attraction of a magnet could have been discovered a priori. But this truth does not seem to have the same validity with regard to such processes as we observed almost since breath began. With regard to them, it is supposed that the understanding, by its own activity, without the help of experience can discover causal connections. It is supposed that anybody who is suddenly sent into the world will be able at once to deduce that a billiard ball will pa.s.s its motion on to another by a push.
But that this is impossible to derive a priori is shown through the fact that elasticity is not an externally recognizable quality, so that we may indeed say that perhaps no effect can be recognized unless it is experienced at least once. It can not be deduced a priori that contact with water makes one wet, or that an object responds to gravity when held in the hand, or that it is painful to keep a finger in the fire. These facts have first to be experienced either by ourselves or some other person. Every cause, Hume argues therefore, is different from its effect and hence can not be found in the latter, and every discovery or representation of it a priori must remain voluntary. All that the understanding can do is to simplify
the fundamental causes of natural phenomena and to deduce the individual effects from a few general sources, and that, indeed, only with the aid of a.n.a.logy, experience, and observation.
But then, what is meant by trusting the inference of another person, and what in the other person's narrative is free from inference? Such trust means, to be convinced that the other has made the correct a.n.a.logy, has made the right use of experience, and has observed events without prejudice. That is a great deal to presuppose, and whoever takes the trouble of examining however simple and short a statement of a witness with regard to a.n.a.logy, experience, and observation, must finally perceive with fear how blindly the witness has been trusted. Whoever believes in knowledge a priori will have an easy job: ”The man has perceived it with his mind and reproduced it therewith; no objection may be raised to the soundness of his understanding; ergo, everything may be relied upon just as he has testified to it.” But he who believes in the more uncomfortable, but at least more conscientious, skeptical doctrine, has, at the minimum, some fair reason for believing himself able to trust the intelligence of a witness. Yet he neither is spared the task of testing the correctness of the witness's a.n.a.logy, experience and observation.
Apriorism and skepticism define the great difference in the att.i.tude toward the witness. Both skeptic and apriorist have to test the desire of the witness to lie, but only the skeptic needs to test the witness's ability to tell the truth and his possession of sufficient understanding to reproduce correctly; to examine closely his innumerable inferences from a.n.a.logy, experience and observation. That only the skeptic can be right everybody knows who has at all noticed how various people differ in regard to a.n.a.logies, how very different the experiences of a single man are, both in their observation and interpretation. To distinguish these differences clearly is the main task of our investigation.
There are two conditions to consider. One is the strict difference between what is causally related and its accidental concomitants,- a difference with regard to which experience is so often misleading, for two phenomena may occur together at the same time without being causally connected. When a man is ninety years old and has observed, every week in his life, that in his part of the country there is invariably a rainfall every Tuesday, this observation is richly and often tested, yet n.o.body will get the notion of causally connecting Tuesday and rain-but only because such connection would
be regarded as generally foolish. If the thing, however, may be attributed to coincidence with a little more difficulty, then it becomes easier to suppose a causal connection; e. g., as when it rains on All- souls day, or at the new moon. If the accidental nature of the connection is still less obvious, the observation becomes a much- trusted and energetically defended meteorological law. This happens in all possible fields, and not only our witnesses but we ourselves often find it very difficult to distinguish between causation and accident. The only useful rule to follow is to presuppose accident wherever it is not indubitably and from the first excluded, and carefully to examine the problem for whatever causal connection it may possibly reveal. ”Whatever is united in any perception must be united according to a general rule, but a great deal more may be present without having any causal relation.”
The second important condition was mentioned by Schopenhauer:[1] ”As soon as we have a.s.signed causal force to any great influence and thereby recognized that it is efficacious, then its intensification in the face of any resistance according to the intensity of the resistance will produce finally the appropriate effect. Whoever cannot be bribed by ten dollars, but vacillates, will be bribed by twenty-five or fifty.”
This simple example may be generalized into a golden rule for lawyers and requires them to test the effect of any force on the accused at an earlier time in the latter's life or in other cases,- i. e., the early life of the latter can never be studied with sufficient care. This study is of especial importance when the question is one of determining the culpability of the accused with regard to a certain crime. We have then to ask whether he had the motive in question, or whether the crime could have been of interest to him. In this investigation the problem of the necessary intensity of the influence in question need not, for the time, be considered; only its presence needs to be determined. That it may have disappeared without any demonstrable special reason is not supposable, for inclinations, qualities, and pa.s.sions are rarely lost; they need not become obvious so long as opportunity and stimulus are absent, and they may be in some degree suppressed, but they manifest themselves as soon as-Schopenhauer's twenty-five or fifty dollars appear. The problem is most difficult when it requires the conversion of certain related properties, e. g., when the problem is one of suspecting a person of murderous inclination, and all that
[1] Schopenhauer: Die beiden Grundprobleme der Ethik.
can be shown in his past life is the maltreatment of animals. Or again, when cruelty has to be shown and all that is established is great sensuality. Or when there is no doubt about cruelty and the problem is one of supposing intense avarice. These questions of conversion are not especially difficult, but when it must be explained to what such qualities as very exquisite egoism, declared envy, abnormal desire for honor, exaggerated conceit, and great idleness may lead to, the problem requires great caution and intensive study.
Section 25. (c) Skepticism.
Hume's skepticism is directly connected with the subject of the preceding chapter, but wants still a few words for itself. Though it is not the lawyer's problem to take an att.i.tude with regard to philosophical skepticism, his work becomes essentially easier through the study of Hume's doctrines.
According to these, all we know and infer, in so far as it is unmathematical, results from experience, and our conviction of it and our reasoning about it, means by which we pa.s.s the bounds of sense-perception, depend on sensation, memory and inference from causation. Our knowledge of the relation of cause and effect results also from experience, and the doctrine, applied to the work of the criminalist, may be formulated as follows: ”Whatever we take as true is not an intellectual deduction, but an empirical proposition.” In other words, our presuppositions and inferential knowledge depend only upon those innumerable repet.i.tions of events from which we postulate that the event recurred in the place in question. This sets us the problem of determining whether the similar cases with which we compare the present one really are similar and if they are known in sufficiently large numbers to exclude everything else.
Consider a simple example. Suppose somebody who had traveled all through Europe, but had never seen or heard of a negro, thought about the pigmentation of human beings: neither all his thinking nor the a.s.sistance of all possible scientific means can lead him to the conclusion that there are also black people-that fact he can only discover, not think out. If he depends only on experience, he must conclude from the millions of examples he has observed that all human beings are white. His mistake consists in the fact that the immense number of people he has seen belong to the inhabitants of a single zone, and that he has *failed to observe the inhabitants of other regions.
In our own cases we need no examples, for I know of no inference which was not made in the following fas.h.i.+on: ”The situation was so in a hundred cases, it must be so in this case.” We rarely ask whether we know enough examples, whether they were the correct ones, and whether they were exhaustive. It will be no mistake to a.s.sert that we lawyers do this more or less consciously on the supposition that we have an immense collection of suggestive a priori inferences which the human understanding has brought together for thousands of years, and hence believe them to be indubitably certain. If we recognize that all these presuppositions are compounds of experience, and that every experience may finally show itself to be deceptive and false; if we recognize how the actual progress of human knowledge consists in the addition of one hundred new experiences to a thousand old ones, and if we recognize that many of the new ones contradict the old ones: if we recognize the consequence that there is no reason for the mathematical deduction from the first to the hundred-and-first case, we shall make fewer mistakes and do less harm. In this regard, Hume[1] is very illuminative.
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