RIGHT AND WRONG

Evening Star, Issue 19855, 2 May 1928, Page 9

RIGHT AND WRONG

DANGEROUS DOCTRINE TINKERING WITH THE LAW A LEGAL OPINION. On the title-page of a book presented to me by a friend, solicitous lest I should waste my time over the commowci products of this period of social assembly, are these seasonable words: “ Übi societas, ibi crimen.” The inferior Latin may well be excused by reason of its classic truth (writes Lord Justice Darling, in the 'Evening Standard’). Now this book, 'The Elements of Crime (Psychosocial Interpretations),' is written by I Mr Boris Brasol, M.A., sometime Prosecuting Attorney of the St. Petersburg Supreme Court—that is to say some time before we might truly say of that tribunal “ Dat veniain corvis, vex at censura columbus”— but now an exile safely settled in New York, and there studying, in circumstances exceptionally favorable, cvcrv form of modern misfeasance. Here we are given the rich results of his reflections—together with an admirable introduction by Mr John A. Wigmore. president of the American Institute of Criminal Law and Criminality—and it is gratifying to one who has begun to suffer a little from the attempted intrusion into our law courts of psychologists, psychiatrists, and such-like to read Mr Wigraorc’s statement that “ they have seldom taken into consideration the established experience of the criminal law when they have proposed changes of law to give effect to their own doctrines; yet the criminal law has an experience vastly older than modern psychology.” And the learned professor proceeds to assert his belief that the proposals of these rash innovators “would undermine law and order, and eventually lead to a virtual criminal anarchy.” Indeed, there are already places where they have made much progress in that direction. It is clear enough—and consoling to an ordinary lawyer—that those who occupy themselves not in punishing offenders, but in minute speculation on nice definitions of crime, of right and of wrong, cannot either long or often agree among themselves. One writer after another has his vogue and his disciples, only to be refuted in his turn, until, in reading the names of these discredited ones, wc are transported to that time “ when Wisdom’s lights in fanes fantastic shone,” and behold with amusement that world— Whero all was fairyland that met the view; No truth untbeorised and no theory true. DOCTRINE OF HEREDITY. The doctrine of heredity-, for instance, as applied not to the transmission of chattels in death, but to the tendency unlawfully and secretly to seize them, has been pushed so far that a theft committed yesterday is hold by some to bo excused on the ground of a temptation offered to a shoplifters great-grandmother, though by her resisted. Even if it is true that "(ho underlying cause of criminality is found in social traction and in tlio centrifugal tendencies existing in every organised society,” 1 still hold fast to my ininne conviction that, besides the malum prohibitub, there really are certain mala in se, altliougb sociologists, intent on collecting rare specimens of “ egocentric” persons, do stoutly deny it. Mr Brasol himself remains sufficiently oldfasliionod ro quote with approval Shakespeare’s Hue, "There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy”—a pronouncement (he significance of which has been delightfully extended by a Scottish metaphysician, who, whilst hardly pronouncing the little word "your,” lays a contemptuous stress upon “ pliilji' ol.y " Perhaps to neither the law-breascr nor the judge are the investigations and discoveries of the criminologist of any especial value, but to the not altogether indifferent observer of life's pageant they are capable of supplying material for tlie modifying of some early standard. Thus the stories written for my learning when 1 was young would seem to have been commonly based upon a disputable assumption, for did they not usually start with some such allegation as this; " Gideon Gray was the seventh son of poor but honest parents. . . Yet. from recent statistics collected, corrected, and arranged by our anthropologists, sociologists, and criminologists, it becomes clear that the long-presumed natural antithesis between poverty and virtue can no longer bo maintained That want and wickedness are not everconstanl companions is suggested by (he present conditions of (he English themselves, and that the Early Victorian view of vice was undergoing some subtle modification would seem to have been observed by Sir William Gilbert, barrister-at-law, since he wrote ;

Hearts just as pure and fair may beat in Belgrave square As in the lowly air of Seven Dials. But further authority for this opinion may b© found in the pages of Mr Brasol, where he says; “While the rates of wages have been substantially increasing in the United States, and general prosperity during the last decade throughout this country has reached a fabulous mark, criminality in the same period has broken all previous records, becoming a crave menace to public order.” This is followed by official records which completely justify Mr Brasol’s conclusion, and finally Micro is presented a comparative table, from which it appears that in the mat ter of robberies, " were France in tin's rospoct ; lo keep pace with Chicago, it would have been necessary for her to have approximately 24,206 robberies, or 830 times more than she actually had recorded.” Comparatively, Franco is. Hho Gideon Grays parents, “ poor but honest.” In face of this, how can any .European ever hope to become "a hundred per cent. American”? incidentally, Mr Brasol pauses at this point, to recur to an all-pervading proposition of Karl Marx that where capital accumulates (here docs pauperism keep pace with or outrun it. On the contrary, wc see the multi-millionaires surrounded by masses of happy, wealthy, wicked workmen. RIGHT AND WRONG. To one trained, as most English people arc, in the belief that some things are manifestly right, whilst others are simply wrong—not cricket, as is taught in the public schools; mala m sc, as is maintained in the Temple—those systems of jurisprudence which are content with the doctrine of " social friction ” must appear insufficient. In England, and apparently in the United States also, tho power to recognise the difference between right and wrong is still a part of the legal test applied in order to ascertain whether a man should be held criminally responsible for his acts. Although not entirely orthodox from our point of view, Mr Brasol lends no support to the theory, dear to certain teachers, that all criminals are irresponsibly mad. Indeed, ho expresses hir-igelt thus: "’the supposition itself that all criminals are, or necessarily must be, insane cannot be held true by science, and should be emphatically rejected, for lunacy and delinquency arc by no means identical conceptions. Persons affected by mental disorders very often show no tendency whatever of committing crimes, whereas habitual offenders, in nine cases out of ten, evince no symptoms of psychic anomaly.” It is agreeable to feel assured that so far the doctrines of the extremists have in our courts met with little but polite derision and firm rejection, for Mr Brasol thus makes plain what we have escaped. "Partly under the influence of Freud and Jung, partly, however, due to the extreme doctrines of the Anthropological School, alienists and attorneys for the defence frequently resort to both the sexual symptom and insanity in order to justify an ordinary criminal art perpetrated by a person of average mentality with no indications of psychic disease. In practice, in much too many cases, this policy defeat* the fundamental aims of criminal justice, and leade to the impunity of the delinquent.” It is no small credit to our own judges that, (hey have so well succeeded in preventing the penetration of the body of English law by the pernicious prescriptions of psychiatrist's, psychologists, and alien alienists. .