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 inner effect of the more powerful impulses, while action is
the _external_ effect 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,[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.