criminal psychology-第72章
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ible。 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 elapsedwe 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。＇1＇ 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。
＇1＇ H。 Marion： Psychologie de la Femme。 Paris 1900。
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＇1＇ and Smith；＇2＇ show how little the classic Greek thought of woman； and W。 Becker＇3＇ estimates as most important the fact that the Greek always gave precedence to children and said； 。'' 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 scan… dalmongering and lying of women； while later； Euripides directly reduces the status of women to the minimum （cf。 Iphigenia）。
＇1＇ Romantic Love and Personal Beauty。 H。 Fink。 London 1887。
＇2＇ Dictionary of Christian Antiquities。
＇3＇ Bilder altgriechischer Sitte。
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 habeas 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。＇1＇
＇1＇ Die Lehre vom Beweise。 Darmstadt。
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 Havam
