One of the most difficult tasks of the criminalist who is engaged in
psychological investigation is the judgment of woman. Woman is not only
somatically and psychically rather different from man; man never is able
wholly and completely to put himself in her place. In judging a male the
criminalist is dealing with his like, made of the same elements as he,
even though age, conditions of life, education, and morality are as
different as possible. When the criminalist is to judge a gray-beard
whose years far outnumber his own, he still sees before him something
that he may himself become, built as he, but only in a more advanced
stage. When he is studying a boy, he knows what he himself felt and
thought as boy. For we never completely forget attitudes and judgments,
no matter how much time has elapsed--we no longer grasp them en masse,
but we do not easily fail to recall how they were constructed. Even when
the criminalist is dealing with a girl before puberty he is not without
some point of approach for his judgment, since boys and girls are at
that period not so essentially different as to prevent the drawing of
analogous inferences by the comparison of his own childhood with that of
the girl.
But to the nature of woman, we men totally lack avenues of approach. We
can find no parallel between women and ourselves, and the greatest
mistakes in criminal law were made where the conclusions would have been
correct if the woman had been a man.[248] We have always estimated the
deeds and statements of women by the same standards as those of men, and
we have always been wrong. That woman is different from man is testified
to by the anatomist, the physician, the historian, the theologian, the
philosopher; every layman sees it for himself. Woman is different in
appearance, in manner of observation, of judgment, of sensation, of
desire, of efficacy,--but we lawyers punish the crimes of woman as we do
those of man, and we count her testimony as we do that of man. The
present age is trying to set aside the differences in sex and to level
them, but it forgets that the law of causation is valid here also. Woman
and man have different bodies, hence they must have different minds. But
even when we understand this, we proceed wrongly in the valuation of
woman. We can not attain proper knowledge of her because we men were
never women, and women can never tell us the truth because they were
never men.
Just as a man is unable to discover whether he and his neighbor call the
same color red, so, eternally, will the source of the indubitably
existent differences in the psychic life of male and female be
undiscovered. But if we can not learn to understand the essence of the
problem of the eternal feminine, we may at least study its
manifestations and hope to find as much clearness as the difficulty of
the subject will permit. An essential, I might say, unscientific
experience seems to come to our aid here. In this matter, we trust the
real researches, the determinations of scholars, much less than the
conviction of the people, which is expressed in maxims, legal
differences, usage, and proverbs. We instinctively feel that the popular
conception presents the experience of many hundreds of years,
experiences of both men and women. So that we may assume that the
mistakes of the observations of individuals have corrected each other
as far as has been possible, and yield a kind of average result. Now,
even if averages are almost always wrong, either because they appear too
high or too low, the mistake is not more than half a mistake. If in a
series of numbers the lowest was 4, the highest 12, and the average 8,
and if I take the latter for the individual problem, I can at most have
been mistaken about four, never about eight, as would have been the case
if I had taken 4 or 12 for each other. The attitude of the people gives
us an average and we may at least assume that it would not have
maintained itself, either as common law or as proverb, if centuries had
not shown that the mistake involved was not a very great one.
In any event, the popular method was comparatively simple. No delicate
distinctions were developed. A general norm of valuation was applied to
woman and the result showed that woman is simply a less worthy creature.
This conception we find very early in the history of the most civilized
peoples, as well as among contemporary backward nations and tribes. If,
now, we generally assume that the culture of a people and the position
of its women have the same measure, it follows only that increasing
education revealed that the simple assumption of the inferiority of
woman was not correct, that the essential difference in psyche between
man and woman could not be determined, and that even today, the old
conception half unconsciously exercises an influence on our valuation of
woman, when in any respect we are required to judge her. Hence, we are
in no wise interested in the degree of subordination of woman among
savage and half-savage peoples, but, on the other hand, it is not
indifferent for us to know what the situation was among peoples and
times who have influenced our own culture. Let us review the situation
hastily.
A number of classical instances which are brought together by Fink[249]
and Smith,[250] show how little the classic Greek thought of woman, and
W. Becker[251] estimates as most important the fact that the Greek
always gave precedence to children and said, “τἑχνα χαἱ γυναἱχας.” The
Greek naturalists, Hippocrates and Aristotle, modestly held woman to be
half human, and even the poet Homer is not free from this point of view
(cf. the advice of Agamemnon to Odysseus). Moreover, he speaks mostly
concerning the scandalmongering and lying of women, while later,
Euripides directly reduces the status of women to the minimum (cf.
Iphigenia).
The attention of ancient Rome is always directed upon the puzzling,
sphinx-like, unharmonious qualities in woman. Horace gives it the
clearest expression, e.g., “Desinite in piscem mulier formosa superne.”
The Orientals have not done any better for us. The Chinese assert that
women have no souls. The Mohammedan believes that women are denied
entrance to paradise, and the Koran (xliii, 17) defines the woman as a
creature which grows up on a soil of finery and baubles, and is always
ready to nag. How well such an opinion has sustained itself, is shown by
the Ottomanic Codex 355, according to which the testimony of two women
is worth as much as the testimony of one man. But even so, the Koran has
a higher opinion of women than the early church fathers. The problem,
“An mulier habeat animam,” was often debated at the councils. One of
them, that of Macon, dealt earnestly with the MS. of Acidalius,
“Mulieres homines non esse.” At another, women were forbidden to touch
the Eucharist with bare hands. This attitude is implied by the content
of countless numbers of evil proverbs which deal with the inferior
character of woman, and certainly by the circumstance that so great a
number of women were held to be witches, of whom about 100,000 were
burned in Germany alone. The statutes dealt with women only in so far as
their trustworthiness as witnesses could be depreciated. The
Bambergensis (Art. 76), for example, permits the admission of young
persons and women only in special cases, and the quarrels of the older
lawyers concerning the value of feminine testimony is shown by
Mittermaier.[252]
If we discount Tacitus’ testimony concerning the high status of women
among the Germanic tribes on the basis that he aimed at shaming and
reforming his countrymen, we have a long series of assertions, beginning
with that of the Norseman Havamál,--which progressively speaks of women
in depreciatory fashion, and calls them inconstant, deceitful, and
stupefying,--to the very modern maxim which brings together the extreme
elevation and extreme degradation of woman: “Give the woman wings and
she is either an angel or a beast.” Terse as this expression is, it
ought to imply the proper point of view--women are either superior or
inferior to us, and may be both at the same time. There are women who
are superior and there are women who are inferior, and further, a
single woman may be superior to us in some qualities and inferior in
others, but she is not like us in any. The statement that woman is as
complete in her own right as man is in his, agrees with the attitude
above-mentioned if we correlate the superiority and inferiority of women
with “purposefulness.” We judge a higher or lower organism from our
standpoint of power to know, feel, and do, but we judge without
considering whether these organisms imply or not the purposes we assume
for them. Thus a uniform, monotonous task which is easy but requires
uninterrupted attention can be better performed by an average, patient,
unthinking individual, than by a genial fiery intellect. The former is
much more to the purpose of this work than the latter, but he does not
stand higher. The case is so with woman. For many of the purposes
assigned to her, she is better constructed. But whether this
construction, from our standpoint of knowing and feeling, is to be
regarded as higher or lower is another question.
Hence, we are only in a sense correct, when calling some feminine trait
which does not coincide with our own a poorer, inferior quality. We are
likely to overlook the fact that this quality taken in itself, is the
right one for the nature and the tasks of woman, whereas we ought with
the modern naturalist assume that every animal has developed correctly
for its own purposes. If this were not the case with woman she would be
the first exception to the laws of natural evolution. Hence, our task is
not to seek out peculiarities and rarities in woman, but to study her
status and function as given her by nature. Then we shall see that what
we would otherwise have called extraordinary appears as natural
necessity. Of course many of the feminine qualities will not bring us
back to the position which has required them. Then we may or may not be
able to infer it according to the laws of general co-existence, but
whether we establish anything directly or indirectly must be for the
time, indifferent; we do know the fact before us. If we find only the
pelvis of a human skeleton we should be able to infer from its broad
form that it belonged to a woman and should be able to ground this
inference on the business of reproduction which is woman’s. But we shall
also be able, although we have only the pelvis before us, to make
reliable statements concerning the position of the bones of the lower
extremities of _this_ individual. And we shall be able to say just what
the form of the thorax and the curve of the vertebral column were. This,
also, we shall have in our power, more or less, to ground on the
child-bearing function of woman. But we might go still further and say
that this individual, who, according to its pelvic cavity, was a woman,
must have had a comparatively smaller skull, and although we can not
correlate the present mark with the child-bearing function or any other
special characteristic of woman, we may yet infer it safely, because we
know that this smaller skull capacity stands in regular relation to the
broad pelvis, etc. In a like manner it will be possible to bring
together collectively various psychical differences of woman, to define
a number of them as directly necessary, and to deduce another number
from their regular co-existence. The certainty here will be the same as
in the former case, and once it is attained we shall be able
satisfactorily to interpret the conduct, etc., of woman.
Before turning to feminine psychology I should like briefly to touch
upon the use of the literature in our question and indicate that the
poets’ results are not good for us so long as we are trying to satisfy
our particular legal needs. We might, of course, refer to the poet for
information concerning the feminine heart,--woman’s most important
property,--but the historically famous knowers of the woman’s heart
leave us in the lurch and even lead us into decided errors. We are not
here concerned with the history of literature, nor with the solution of
the “dear riddle of woman;” we are dry-souled lawyers who seek to avoid
mistakes at the expense of the honor and liberty of others, and if we do
not want to believe the poets it is only because of many costly
mistakes. Once we were all young and had ideals. What the poets told us
we supposed to be the wisdom of life--nobody else ever offers any--and
we wanted compulsorily to solve the most urgent of human problems with
our poetical views. Illusions, mistakes, and guiltless remorse, were the
consequence of this topsy-turvy work.
Of course I do not mean to drag our poets to court and accuse them of
seducing our youth with false gods--I am convinced that if the poets
were asked they would tell us that their poetry was intended for all
save for physicians and criminalists. But it is conceivable that they
have introduced points of view that do not imply real life. Poetical
forms do not grow up naturally, and then suddenly come together in a
self-originated idea. The poet creates the idea first, and in order that
this may be so the individual form must evolve according to sense. The
more natural and inevitable this process becomes the better the poem,
but it does not follow that since we do not doubt it because it seems so
natural, it mirrors the process of life. Not one of us criminalists has
ever seen a form as described in a poem--least of all a woman.
Obviously, in our serious and dry work, we may be able to interpret many
an observation and assertion of the poet as a golden truth, but only
when we have tested its correctness for the daily life. But it must be
understood that I am not saying here, that we ourselves might have been
able to make the observation, or to abstract a truth from the flux of
appearances, or at least to set it in beautiful, terse, and I might say
convincing, form. I merely assert, that we must be permitted to examine
whether what has been beautifully said may be generalized, and whether
we then have found the same, or a similar thing, in the daily life.
Paradoxical as it sounds, we must never forget that there is a kind of
evidentiality in the form of beauty itself. One of Klopstock’s
remarkable psalms begins: “Moons wander round the earth, earths round
suns, the whole host of suns wander round a greater sun, Our Father,
that art thou.” In this inexpressibly lofty verse there is essentially,
and only in an extremely intensified fashion, evidence of the existence
of God, and if the convinced atheist should read this verse he would, at
least for the moment, believe in his existence. At the same time, a real
development of evidence is neither presented nor intended. There are
magnificent images, unassailable true propositions: the moon goes round
about the earth, the earth about the sun, the whole system around a
central sun--and now without anything else, the fourth proposition
concerning the identity of the central sun with our heavenly Father is
added as true. And the reader is captivated for at least a minute! What
I have tried here to show by means of a drastic example occurs many
times in poems, and is especially evident where woman is the subject, so
that we may unite in believing that the poet can not teach us that
subject, that he may only lead us into errors.
To learn about the nature of woman and its difference from that of man
we must drop everything poetical. Most conscientiously we must drop all
cynicism and seek to find illumination only in serious disciplines.
These disciplines may be universal history and the history of culture,
but certainly not memoirs, which always represent subjective experience
and one-sided views. Anatomy, physiology, anthropology, and serious
special literature, presupposed, may give us an unprejudiced outlook,
and then with much effort we may observe, compare, and renew our tests
of what has been established, sine ira et studio, sine odio et gratia.
I subjoin a list of sources and of especial literature which also
contains additional references.[253]